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Physician may sue over hidden camera investigation

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Physician may sue over hidden camera investigation

  • California Court of Appeals says wiretapping law may have been violated, but the law limits damages sought by doctor whose visits were caught on tape.

July 11, 2003 — A doctor whose secretly recorded consultations were broadcast as part of a news report about improper drug prescriptions may sue the television station that produced the report under California’s wiretapping law, the California Court of Appeal in Los Angeles decided July 3. The doctor may recover only statutory damages relating to the recording, however, and cannot, under the taping law, recover for injury caused by the broadcast of the visits, the court said.

Dr. Fred L. Lieberman was visited by undercover reporters for KCOP-TV on two separate occasions in Spring 2001, according to court papers. Each time, the undercover reporter was accompanied into Lieberman’s private office by a companion, who secretly recorded the consultations on both audiotape and videotape.

A KCOP report entitled “Caught in the Act” aired May 23, 2001. The segment revealed that Lieberman improperly prescribed Vicoden, a controlled substance, without proper medical examinations. The report called Lieberman a “drug dealer” and “candy doctor,” according to court papers.

Lieberman sued in May 2002, alleging that KCOP’s report had ruined his reputation and career. He said that as a result of the broadcast he lost hundreds of patients, was dropped by his medical insurer, and lost his job on the medical staff at St. Vincent Medical Center.

Lieberman allegedly closed his medical practice and allowed his medical license to expire in November 2001.

KCOP responded to the lawsuit with a special motion to dismiss the suit under California’s anti-SLAPP law. The law protects against lawsuits brought primarily to chill the valid exercise of free speech. “SLAPP” is an acronym for “strategic lawsuit against public participation.”

KCOP’s motion was denied by the trial court, because Lieberman showed sufficient evidence of a violation of California’s wiretapping law. That law prohibits the recording of “confidential communications” without the consent of all parties to the communication.

The appellate court agreed with the trial court’s decision and said a jury would have to decide whether the recorded medical consultations, conducted in the presence of the reporters’ companions, were “confidential communications” for purposes of the taping law.

The court declined a request by KCOP to establish a “newsgathering exception” to the recording law.

The court did, however, limit the damages to which Lieberman will be entitled if he wins his suit at trial.

Lieberman had sought compensation for the damage to his reputation allegedly caused by the news report.

“But the damages that Lieberman may have incurred when the KCOP broadcast disclosed that Lieberman was involved in illegal activity did not result from the surreptitious recording,” the court said. “They resulted from public disclosure that Lieberman may be involved in the improper dispensing of controlled substances.”

The court said Lieberman might be able to recover reputation damages if he brought claims for defamation or invasion of privacy, but if he is successful under the wiretapping statute, his damages are limited to the amount prescribed by law of $5,000 or three times his actual damages.

The appeals court also said that KCOP’s anti-SLAPP motion, though denied, was properly brought because newsgathering activities, such as the use of hidden cameras, are “conduct in furtherance” of the exercise of the constitutional right to free speech under the law.

(Lieberman v. KCOP Television, Inc.; Media counsel: Jean-Paul Jassy and Gary L. Bostwick, Davis Wright Tremaine LLP, Los Angeles) WT

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