Monday, July 7, 2003
C.A. Allows Doctor to Sue Over Secret Taping by TV Station
Justices Say Anti-SLAPP Motion Was Properly Denied, but Appear to Foreclose Damages Alleged to Result From Broadcast
By KENNETH OFGANG, Staff Writer/Appellate Courts
A doctor who was secretly recorded in connection with a television news report about alleged improper prescription of controlled substances is entitled to proceed with his suit against the owners of the station, the Court of Appeal for this district ruled Thursday.
Div. Four agreed with Los Angeles Superior Court Judge Edward Ferns that Dr. Fred L. Lieberman presented sufficient evidence that the taping was illegal to survive an anti-SLAPP motion by KCOP Television, Inc. The justices rejected a contention that California’s law requiring that all parties to a conversation consent to its being recorded is unconstitutional as applied to newsgathering activities.
But the panel warned, in an opinion by Justice J. Gary Hastings, that under the complaint as pled, Lieberman will only be able to recover statutory damages sustained as a result of being recorded, as distinguished from those caused by the tape being broadcast.
Had Local Practice
Lieberman, who had a general practice near Third Street and Alvarado, filed suit in May of last year. He claims that about a year earlier, he saw two patients who were accompanied by persons who were not introduced to him, but who in each case appeared to be the “significant other” of the patient.
Lieberman claims the companions secretly made audio and video recordings of the examination, which wound up being broadcast as part of a segment called “Caught in the Act,” in which Lieberman was accused of improperly prescribing the painkiller Vicodin.
After the broadcast appeared, the doctor alleges, he was forced to resign from an “on-call” association, costing him 500 HMO patients; pharmacies refused to fill his prescriptions; lawyers would not hire him as a consultant or expert witness; his malpractice insurance was not renewed; he was denied reappointment to the medical staff at St. Vincent Medical Center; and California Medical Board investigators raided his clinic in full view of patients.
The above events, and related stress, caused him to allow his license to lapse and to close his practice, Lieberman claims.
He sued for violation of Penal Code Sec. 632. The statute, which imposes both criminal and civil liability, makes it illegal to electronically eavesdrop upon, or to record, a “confidential communication” without the consent of each “party.”
KCOP, in moving to strike under Code of Civil Procedure Sec. 425.16, contended that the presence, in each instance, of the patient’s companion made any expectation of privacy unreasonable, so that the communications were not “confidential.” The station also asserted that its newsgathering activities were protected by the First Amendment.
Hastings, writing for the Court of Appeal, agreed with KCOP that newsgathering on a matter of public interest, including the possible issuance of prescriptions for non-legitimate purposes, is the type of speech and petition activity that the anti-SLAPP statute protects.
Lieberman, however, established a prima facie case that the recording was illegal and that he was entitled to statutory damages of $5,000 or three times the “actual damages,” whichever is greater, under Sec. 637.2, Hastings said.
But the actual damages to which the statute refers are those that relate to the surreptitious recording, and not those resulting from publication, the justice warned.
Statutory Damages Explained
Any damages the plaintiff suffered “when the KCOP broadcast disclosed that Lieberman was involved in illegal activity did not result from the surreptitious recordings,” Hastings wrote, but “from public disclosure that Lieberman may be involved in the improper dispensing of controlled substances.”
Lieberman, the justice noted, pled no causes for remedies other than statutory damages.
The justice rejected KCOP’s claim that the communications were not confidential.
A person does not have to speak during a conversation to be a “party” to it, Hastings reasoned. A person “who listens with the speaker’s knowledge and intent is involved or interested in a conversation,” and is thus a party to it, “not an eavesdropper,” the justice wrote.
Lieberman’s attorney, Zev Brooks of Los Alamitos, said he was disappointed with the court’s discussion of the damages issue. A news media defendant, he told the MetNews, should not be allowed to record a person’s conversations illegally, use the tape to ruin a person’s career, and then walk away paying only a few thousand dollars in damages.
KCOP’s lawyer, Gary L. Bostwick of Davis Wright Tremaine, was not available for comment.
The case is Lieberman v. KCOP Television, Inc., B161477.
Copyright 2003, Metropolitan News Company