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Doctor's privacy claim over hidden camera story upheld

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  1. Libel and Privacy
NEWS MEDIA UPDATE   ·   UTAH   ·   Libel   ·   Nov. 22, 2005

NEWS MEDIA UPDATE   ·   UTAH   ·   Libel   ·   Nov. 22, 2005


Doctor’s privacy claim over hidden camera story upheld

  • The state Supreme Court expanded liability for media using hidden cameras in a medical office, despite reducing a multi-million privacy award in the case of a doctor who lost his job over a hidden camera report.

Nov. 22, 2005  ·   Utah’s Supreme Court last week reduced by more than fivefold an invasion of privacy award against a television station for using a hidden camera to record video from a doctor’s office, while also recognizing a privacy interest for physicians at work.

A jury awarded the doctor $3.2 million in general and punitive damages, but the trial court lowered the judgment by $180,000. The state high court on Nov. 15 further reduced the award that KTVX-TV in Salt Lake City must pay to $590,000, while still objecting to the use of a hidden camera for reporting about the doctor who appeared to freely prescribe diet pills without checking patients’ backgrounds.

Dr. Michael Jensen complained about three broadcasts, including a Sept. 5, 1995, hidden camera report showing Jensen prescribing diet pills to reporter Mary Sawyers without examining her for high blood pressure or diabetes — conditions possibly aggravated by the use of the diet pills. Jensen’s employer, Columbia FirstMed, fired him the next day.

A July 17, 1996, story explained how Utah’s Division of Occupational and Professional Licensing filed a petition for unprofessional conduct against Jensen. A Nov. 6, 1996, story reported about “questionable doctors” and told viewers that Jensen kept his license but would be publicly reprimanded and would have to attend a workshop on proper prescribing and medical ethics.

Jensen sued the station and the reporter after the third broadcast, alleging among other claims false light invasion of privacy and intrusion upon seclusion, a claim arising from the fact that he could have reasonably expected not to be taped while seeing a patient.

The station argued that false light invasion of privacy and intrusion upon seclusion claims should be thrown out — or not have been allowed to be presented to the jury — because the hidden camera recorded Jensen only in his doctor’s office. The Supreme Court allowed the claims to stand.

“For newsgathering cases, the holding here is that a jury could find that this is the equivalent of leaving a camera in an office when the doctor thought that he was alone,” said Thomas Kelley of Faegre & Benson, who represented KTVX. “The doctor was talking to a perfect stranger and what was recorded was part of his officially regulated conduct as a physician. The court has created a situation where it’s hard to take any case away from the jury if it’s part of an invasion of privacy claim.”

The court still greatly reduced Jensen’s jury award, finding that the jury awarded more than could be proven for damages caused by the third broadcast. Jensen’s economic claims focused on the fact that he was fired, which happened after the first broadcast; therefore the court removed the portion of the decision awarding Jensen economic and punitive damages due to the third broadcast.

Since Jensen did not file suit within a year of the first and second broadcast, he was awarded damages only from the third broadcast. The high court ruled that the statute of limitations for false light invasion of privacy is similar enough to defamation suits to warrant sharing the same statute of limitations. Since the damages related the first and second broadcast where then dismissed, Jensen’s award shrank to $590,000.

“The case broke no new ground in favor of the media,” Kelley said. “But it broke a little bit of new ground for invasion of privacy issues.”

(Jensen v. Sawyers, Media Counsel: Thomas B. Kelley, Faegre & Benson, Denver, Colo.)CM


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