TV Report on Surgery Brings Suit for Fraud

When the plastic surgery did not turn out right, Jodie Bullock filed a lawsuit against the doctor.

But in a second case as unusual as the first was routine, she also sued the television station that had broadcast a profile of the surgeon and his technique, claiming the news report was false and fraudulent, and led her into the ill-fated operation.

The improbable claim of fraud against television station KHJ Channel 9 was given a firm legal footing recently by an Orange County judge, who refused the station’s request to dismiss it. In doing so, the judge said the case is without precedent.

‘Procedural Skirmish’

While a lawyer for the station called the decision “a procedural skirmish” and said he is confident of victory, one legal scholar said the case is unique and potentially significant for the mass media and its customers.

Bullock, represented by attorney Marc Goldstein of Newport Beach, claimed that she watched with interest a 1985 report by Channel 9 on a technique for breast augmentation surgery performed by Los Angeles physician Thomas R. Stephenson.

The report, which was promoted extensively, described the procedure as “new, safe and painless,” according to the lawsuit. Stephenson was described as qualified and skillful, and one of a handful of West Coast physicians able to perform the operation.

A satisfied patient was also shown, who praised Stephenson’s work.

Bullock went to Stephenson and underwent the procedure, involving implantation of silicone through cuts made under the arm. The results were horrible, according to the lawsuit, leaving Bullock with scars, severed muscles and nerves, and serious and permanent physical and emotional injuries, according to the lawsuit.

Goldstein alleged that in fact the procedure was not new and posed “substantial health risks.” Stephenson had been placed in a program run by the Board of Medical Quality Assurance--the state’s regulatory arm for doctors--for drug and alcohol dependence, according to allegations in the lawsuit. And the satisfied patient shown on television was, in fact, Stephenson’s live-in lover and office manager, Goldstein alleged.

The station “deliberately suppressed the true facts and instead consciously and deliberately chose to broadcast a misleading and false story to the public,” according to the lawsuit.

The allegations are “outlandish,” and the lawsuit’s description “bears no resemblance whatsoever to the actual broadcast,” according to Douglas E. Mirell, lawyer for the station’s owner, RKO General Inc.

“It was simply a one-shot broadcast by the station’s reporters, discussing a new surgical technique. This doctor was one of the people who was interviewed,” Mirell said.

‘Not Discouraged’

“We are not discouraged,” he said. “There’s no way they will be able to prove the allegations of the complaint.”

Stephenson’s lawyer in the malpractice lawsuit, Randolph M. Even, said all claims have been denied.

Goldstein said the ruling by Orange County Superior Court Commissioner Ronald L. Bauer is significant and unprecedented. The ruling held that the First Amendment does not shield “false statements,” Goldstein said.

Filed last year, the lawsuit is in its infancy. Virtually no evidence has been gathered, leaving the debate limited so far to legal points.

The litigation has focused on a half dozen unusual cases in which media firms have been sued under unusual circumstances. They are not the typical defamation cases, in which the allegation is that false reports were printed that damaged the reputation of the person filing the lawsuit.

For instance, four days after a network special aired in 1974 depicting brutal conditions in juvenile detention facilities, a young woman was raped in a juvenile home in San Francisco. She attempted to sue the network, alleging that the program “incited” the crime. But courts ruled that the free-speech clause of the First Amendment shielded the network from liability.

A Rhode Island court came to the same conclusion in throwing out a lawsuit by the parents of a 13-year-old who was found hanging in his bedroom an hour after a hanging stunt was performed on a television program.

The First Amendment was also held to bar a lawsuit by a young woman who was shot in 1979 as she left a theater where she had seen a movie depicting gang violence. The lawsuit was against the producer of the film, alleging the film had incited the attack.

And a local appeals court last year ruled that the First Amendment shielded Seventeen magazine from a claim that its tampon ads induced a young woman to buy the product, which triggered toxic shock syndrome. The publication did not sponsor or endorse the product, and the ad was clearly distinguishable from feature stories, according to the opinion.

Rare Example

The Bullock case, at least so far, is one of the rare instances in this area in which a media defendant has failed to win dismissal of civil claims. Two others were noted in the debate in the Bullock file. In one, a California court allowed a lawsuit against Good Housekeeping magazine in which a reader claimed to have bought a pair of defective shoes after seeing a magazine ad containing the “Good Housekeeping Consumer Guarantee Seal.” The publisher had endorsed the product and “lent its reputation” to promoting sales, the court decided.

In the second, the old KHJ radio, owned by RKO, aired a contest in which the first person spotting a disc jockey in a red auto on the freeway would win a prize. When a speeding driver searching for the car ran into a third party, a court ruled that the station could be held responsible for the injuries suffered by the innocent motorist.

Ronald Talmo, a professor at Western State University College of Law, said the Bullock case poses interesting issues involving free speech. “The bottom line in these cases is that the First Amendment does not protect, for its own sake, false speech,” Talmo said.

Talmo said the claim in the case--that the television station committed fraud in the broadcast--is novel.

Bullock’s next step is to actually prove the fraud allegation--a difficult proposition, requiring proof of intent to engage in fraud, Talmo said.