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High court upholds $2 million verdict in "Dirty Doc" libel case

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  1. Libel and Privacy

    NMU         VIRGINIA         Libel         Jun 12, 2002    

High court upholds $2 million verdict in “Dirty Doc” libel case

  • A Virginia physician sued a Washington, D.C., station for a broadcast and promotions that he said accused him of sexually assaulting female patients.

The Virginia Supreme Court affirmed a $2 million jury verdict against WJLA-TV in Washington, D.C., for its broadcast and promotions about a physician’s treatment of female patients.

But the June 7 ruling gave one victory to the ABC affiliate. The high court reversed the jury’s finding that Dr. Stephen Levin should win an additional $575,000 for misappropriation of the doctor’s image in the promotions. The court found that the station used Levin’s image for a newsworthy purpose, not to advertise the station.

Levin, an orthopedist, sued WJLA for the station’s broadcast on Nov. 18, 1997, and several promotional ads that he said accused him of sexually assaulting female patients and performing inappropriate medical procedures.

Levin used “intravaginal manipulation” of a muscle to treat a condition that caused pain in the buttocks, lower back and leg. Several patients complained to the Virginia Board of Medicine, which held a hearing and dismissed the complaints. One of the complaining patients contacted WJLA.

Promotional announcements before the WJLA broadcast referred to Levin as “Dirty Doc” and “the X-Rated Doctor” and asked, “When does a physical examination become a sexual assault?” The broadcast referred to the treatment as “inappropriate pelvic exams” and “highly unusual.”

WJLA had argued on appeal that the jury should not have been able to consider all of the allegedly defamatory statements collectively in deciding whether the station had defamed Levin. Instead, each statement should have been considered individually, the station argued.

The state Supreme Court ruled that WJLA waived this argument when it failed to object at trial to a jury instruction that allowed a verdict for Levin if the jury found that the station made “any one” of the allegedly defamatory statements.

The ruling also set a precedent in Virginia libel law, said Lee Levine, the attorney for WJLA on appeal.

Plaintiffs in defamation cases must prove that the allegedly defamatory statement was “of and concerning” the plaintiff. A plaintiff meets this requirement if the same defendant makes statements regarding one specific subject or event over a relatively short period of time, even if some of the statements clearly identify the plaintiff and others do not, the court ruled.

“This is so even where the publication identifying the plaintiff is made subsequent to those that do not identify him,” the court ruled.

Levine, the attorney, said that portion of the ruling holds a lesson for TV news broadcasts.

“If you’re going to promote a piece, there’s a pretty good chance that a court’s going to read the promotions together with the actual broadcast in deciding all sorts of things like, was it defamatory, was it false, was it of and concerning the plaintiff,” Levin said. “You shouldn’t assume that the promotions are going to be judged as something separate and apart from the broadcast.”

(WJLA-TV v. Levin; Media counsel: Lee Levine, Levine Sullivan & Koch, Washington, D.C.) MD

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