Bernholc v. Kitain

Robert Bernholc (plaintiff) was a physician at a hospital (defendant). Bernholc was the attending anesthesiologist in an operating room when an incident occurred. After the incident, Bernholc did not attend a hearing that was part of the hospital’s peer-review process. The hospital interpreted Bernholc’s failure to appear for the hearing as a resignation from his position with the hospital. Bernholc then sued the hospital for various claims sounding in tort and breach of contract. During the litigation, the hospital successfully sought an ex parte temporary restraining order that sealed the entire lawsuit record and prohibited Bernholc from disclosing information regarding the hospital’s peer-review process. The hospital then sought a full protective order and moved to seal the entire record and prevent third-party disclosure of peer-review-process information. The hospital argued that sealing the record was necessary for two reasons: (1) various statutes required hospital peer-review processes to remain confidential and (2) peer-review-process information was necessary for the hospital to defend itself in the lawsuit. According to the hospital, future peer-review processes would be compromised if the peer-review process was not kept confidential. The issue was a novel one. Although courts had granted such motions in the medical-malpractice context, no court had previously addressed the propriety of a protective order in an employment context.