YG v. Jewish Hospital

795 SW 2d 488 (1990)
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The Appellants, Y.G. and L.G, husband and wife, brought this common law tort claim of an invasion of privacy. At the time of the incident, the wife, L.G., was five months pregnant, bearing triplets conceived through in vitro fertilization (IVF) at and under the guidance of the Jewish Hospital of St. Louis (the Hospital).

The Hospital held a social function to commemorate the fifth anniversary of the IVF program, inviting the couples presently and previously involved in the program. The appellants alleged that the Hospital had “assured” them that there would be neither “publicity nor public exposure of persons attending” the function. A film and reporting news team (KSDK), however, was present at the function. The Appellants claimed that they were asked twice to give an interview on television and they refused each time. They also claimed that they made every effort to avoid being filmed or interviewed by the representatives of the electronic media.

The Appellants further claimed that they had told no one about their attempt to procreate other than Y.G.’s mother. They claimed that without express permission, waiver or privilege, KSDK filmed the function and showed it on a television program, disclosing (without mentioning the appellants names) that Appellants were expecting triplets as a result of participation in the Hospital’s IVF program. The Appellants added that, as a result, L.G. received numerous calls, embarrassing questions and was chastised by her church. The husband’s affidavit stated he was ridiculed at work.

The trial court granted summary judgment against the appellants. This appeal followed.

The court first defined the privacy interest at issue. It stated that the elements of an action for publication of a private matter were “(1) publication or ‘publicity,’ (2) absent any waiver or privilege, (3) of private matters in which the public ha[d] no legitimate concern, (4) so as to bring shame or humiliation to a person of ordinary sensibilities.” Applying these elements, the court concluded: that the appellants’ interests outweighed the interests of the respondents; that there were genuine issues of fact to be resolved; and that the grant of summary judgment by the trial court was inappropriate. The court held that: “Whether the television report relating to in vitro fertilization in general, and showing the appellants in particular offends the common decency of a reasonable person are questions to be ultimately determined by the jury.”

The court then examined whether the identification of the Appellants “a private matter in which the public had no legitimate concern.” The court held that the appellants’ identity was a private matter which was “not newsworthy nor a matter of public record.” It explained that while the modern, medical, technical process of IVF and its success may have been matters of public interest, the identity of those participating in the program was a private matter. The court noted that under Missouri law an individual’s medical treatment was considered a private matter, and the right of privacy had been applied particularly to sexual matters and those of procreation.

Finally, the court examined whether the Appellants waived their right to privacy by attending the function. The court held that matters of public record or that take place in public locations can be publicized without invasion of privacy, but the fact that an event takes place in front of others does not waive the right to privacy. The court noted that the appellants “were assured that the function would be private, they twice refused an interview, and [that] by merely attending the function there was no express voluntary waiver of a known right.”

“The right of privacy is spoken of as a new right, when in fact it is an old right with a new name. Life, liberty and the pursuit of happiness are rights of all [persons] ... The right to life includes the right to enjoy life. Everyone has the privilege of following that mode of life, if it will not interfere with others, which will bring to him the most contentment and happiness. He may adopt that of privacy, or if he likes, of entire seclusion.... If this right is invaded, he may have his remedy, either by restraint in equity or damages in an action at law.” 795 S.W.2d, p. 496.

“The Missouri Supreme Court held that a person's medical treatment is a private matter in Barber v. Time, Inc., 159 S.W.2d 291 (Mo.1942). In Barber, the court said in determining whether the case presented a jury issue, the court stated ‘certainly if there is any right of privacy at all, it should include the right to obtain medical treatment at home or in a hospital for an individual personal condition (at least if it is not contagious or dangerous to others) without personal publicity.’ Id. at 295. The court held that although plaintiff's medical condition may have been a matter of public interest because it was unusual, her identity was a private matter protected by the right of privacy.” 795 S.W.2d, p. 500.

“While the modern medical, technical process of in vitro fertilization may be of great interest to the public generally, publicizing the individual persons who undergo such medical ‘miracle,’ without their consent and without waiver states a claim upon which relief may be granted. We adhere to the modern principles of pleading, recognized in both the federal and Missouri courts that a petition should not be dismissed ‘unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.’ Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957), discussed in 5 C. Wright & A. Miller, Federal Practice and Procedure, Sec. 1216 at 119 (1969).” 795 S.W.2d, pp. 501 - 502.

“In the case at bar, the allegations of the petition show that appellants were assured that the persons invited would include only other persons involved in the IVF program, and would not be open to the public or the media. By attending such a function, appellants clearly chose to disclose their participation to only the other in vitro couples. By so attending this limited gathering, they did not waive their right to keep their condition and the process of in vitro private, in respect to the general public.” 795 S.W.2d, p. 503.