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LMH Health's main campus at 325 Maine St.

The “Jane Doe” plaintiffs suing LMH Health claiming that their personal information, including nude medical photos, was improperly accessed by a physical therapist at the University of Kansas Health System must use their real names in the lawsuit or it will be dismissed, a federal judge recently ruled.

As the Journal-World reported in April, two women using the pseudonyms Jane Doe 1 and Jane Doe 2 initiated a putative class action against KU and LMH Health demanding more than $5 million on behalf of at least 425 patients who had undergone various surgeries and procedures at Plastic Surgery Specialists of Lawrence, an affiliate of LMH. Patients say they suffered “grave invasions of privacy” when their most intimate medical files were accessed by the physical therapist at KU Health who had no affiliation to LMH or the plastic surgery clinic.

Their complaint alleges 13 legal violations, including computer fraud and abuse, negligence, breach of contract, invasion of privacy, intentional infliction of emotional distress and other claims.

In filing their complaint, the Jane Does did not get permission from the court to proceed anonymously, as required by federal rules. The court then ordered them to show cause for anonymity, but U.S. District Judge Holly Teeter ultimately found their arguments unpersuasive.

“Plaintiffs must therefore file an amended complaint using their true name within 14 days of this order [dated June 9]. Failure to do so will result in dismissal of this lawsuit for lack of jurisdiction,” Teeter wrote in her ruling.

The requirement for plaintiffs to use their real names, except in exceptional and rare cases, is to promote public access to judicial records and trust in the legal system and to allow the “citizenry to monitor the system,” Teeter wrote.

An exceptional case, under a standard laid out by the 10th Circuit Court of Appeals, would be one involving a highly sensitive and personal matter, a real danger of physical harm or where the injury litigated against would be incurred as a result of the disclosure of the names. The Jane Does argued that all three exceptions applied to their case, but the court found otherwise.

Teeter wrote that any medical records, including photos, could be sealed or redacted if necessary in the course of the litigation, and also noted that “there is nothing particularly exceptional or exceptionally sensitive about the fact of a medical procedure,” writing that medical malpractice and other claims involving potentially embarrassing details were routinely filed using real names. If they weren’t, the judicial system would be flooded with anonymous complaints.

As to the fear of real danger or physical harm, the plaintiffs said that the physical therapist knew what they looked like and searched for at least one by name, and they believed the therapist lived in Lawrence, where they still traveled for medical treatment although they do not themselves live in Lawrence. Teeter said this fear was “too speculative to warrant pseudonymity,” as no evidence suggested that they had been contacted or threatened by the therapist.

Teeter also found that the injury plaintiffs are litigating against — the therapist accessing their records — is “past conduct” and would not be incurred again as a result of their names being disclosed.

In addition to finding that the plaintiffs did not meet the narrow standards to withhold their real names, the court found that there were several costs to the public if the lawsuit were to proceed anonymously, including that the public would not know the names of people using the publicly funded courts; the ability of media and academic reporting on the case would be hindered, as would evidence discovery and speech related to the case; and a bad precedent would be set for future cases involving medical issues.

Teeter noted that plaintiffs’ attorneys, Stueve Siegel Hanson LLP, willingly posted information about the case on the firm’s website and attempted to drum up attention, which she said could be regarded as inconsistent with a desire for privacy.

The physical therapist, who has been terminated and who is unknown to the women, is said to have specifically targeted the files of female patients who had undergone breast augmentation procedures in Lawrence. The privacy breaches are alleged to have occurred between “at least” February 2021 and Feb. 22, 2023, when KU Health was alerted to or detected them.

Teeter wrote that she had no doubt that most litigants would prefer to shield their names and not have medical procedures publicized, but identity disclosure is a “foreseeable consequence of bringing a lawsuit in which the protection of and access to medical records are challenged.”

Two days after the Journal-World reported on the plaintiffs’ complaint, LMH Health denied any wrongdoing, saying the hospital properly notified all patients (“a very small number”) impacted by a breach of health records. Further, LMH President and CEO Russ Johnson said in an email that there was no breach at all for Jane Doe 1 and Jane Doe 2.

“This explains why they did not receive a notification from LMH. To be clear, any patient who did not receive written notification from LMH in 2023 can rest assured their records were also not accessed,” Johnson said.

Johnson said LMH was the entity that discovered the incident and reported it to state authorities, and he said the lawsuit was inaccurate in listing the KU Health employee in question as a physical therapist, but he did not say what position the employee held.

In addition to the University of Kansas Health System and LMH Health, the electronic records company Epic Systems Corporation also has been named as a defendant.