Unsealing of malpractice lawsuit delayed

 

pdanner@MiamiHerald.com

A Broward judge on Thursday said he will open up one of more than 100 civil lawsuits hidden from the public, but will first give the parties involved a chance to remove the settlement agreement.

It's unusual for documents, once filed, to be removed from the record.

Even Judge Robert Carney acknowledged he's not sure he has the authority to have the settlement removed.

"Once it's filed, I'm not sure I can unfile it, " Carney said. "I'll at least explore that option."

The lawsuit is one of 107 civil cases that The Miami Herald found were removed from public records since 2001.

A hearing is expected to be set for next week.

In the meantime, the case remains hidden on a secret docket in Broward Circuit Court, with the case number, parties' names and files either not available or visible to the public.

ACCOUNTABILITY

The practice of a secret docket goes against the basic premise that courts funded by the public should be open to the public. It can also make it harder to hold agencies and companies accountable for their actions.

Despite the secrecy, The Miami Herald was able to obtain some information about the case, a 2002 medical malpractice suit brought by the Broward parents of a brain-damaged child against two doctors and a diagnostic-imaging center. The case ended in a settlement in 2004.

Only one lawyer attended the Thursday hearing, scheduled by Carney to consider unsealing the case. Michael Petruccelli, who represents radiologist Julian Kanter, said he was opposed to unsealing the settlement, but not the rest of the file.

"The reason why it was sealed was because in this case there was a settlement that involved the claim of a minor, " Petruccelli said.

He said the request to seal was made by the defendants, not the parents of the child, but that all parties agreed.

James Nosich, who represents gynecologist Fern Taisenchoy-Bent, said he didn't know the court records had been sealed. But he added he didn't want his client's name publicized in connection with the medical malpractice suit.

The doctors denied any wrongdoing.

'LIMITED GROUNDS'

Carney said he plans to unseal the case next week, explaining he has "limited grounds" under which he can seal records.

"The parties' desire is not one of them, " Carney added.

But he suggested the lawyers file motions to remove the settlement from the court file.

Sam Terilli, a University of Miami journalism professor and a former general counsel for The Miami Herald, said he's unaware of any law or rule that permits judges to withdraw documents from public court files.

"You can't turn the clock back and pretend it was never public, " Terilli said. "The key is that it was filed and the judge took action. He approved the settlement."

Petruccelli said he likely will file a motion with the court to keep the settlement sealed.

Adam Trop, who represents the plaintiffs, said he has no plans to get involved.

"It's not something we feel strongly about, " said Trop, who represents the parents, Darnean and Andre Vautrin, and their son Cameron, now 6.

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