Cincinnati Dentist Loses Brush With Appellate Court
December 8, 2006
In Fuchs v. Scripps Howard Broadcasting Company, the Ohio Court of Appeals affirmed summary judgment in a defamation suit in favor of Cincinnati station WCPO-TV (Channel 9) that probed questionable billing practices and sanitation at a chain of area dental offices. The appellate court, applying the negligence standard applicable to private-figure defamation plaintiffs in Ohio, held that no jury could find by clear and convincing evidence that the station had failed to act reasonably.
Channel 9 aired the reports in February and March 2003, during the “I-Team” consumer and citizen advocacy segment of the 11:00 p.m. news. The investigation was sparked by complaints to the station from two other defendants, who reported that they had been overbilled by a dentist and his practice group. The group averages 60,000 patient visits per year and is one of the largest dental care practices in Cincinnati.
Over the course of roughly three months, the reporter investigated the complaints by contacting the Ohio Dental Board, the Ohio Attorney General’s office, and the Cincinnati Better Busness Bureau (BBB). These sources informed the reporter that they had received an unusual number of billing-related complaints about the dental group. The reporter also learned that 180 lawsuits were pending in the county against the dental group. In addition, WCPO’s reporter interviewed dentists unaffiliated with that group about dental billing practices and people who had lodged the complaints with the BBB. Finally, the reporter contacted the dentist who headed the group, and the dentist refused to speak on the record. The dentist then wrote letters to the station maintaining his innocence, indicating that he would give an interview for the story only if the station would provide him with written questions in advance.
The first broadcast, which aired on February 24, 2003, informed viewers that the dental group had an unsatisfactory rating with the BBB and featured interviews from the patients who had complained to WCPO. After the broadcast, WCPO received more than 90 calls and e-mails from viewers describing similar experiences with that dentist’s group.
In response, the dentist and his group paid $18,500 to run a full-page ad a month later in the Cincinnati Enquirer. WCPO, as a follow-up to the ad, re-aired the initial broadcast, defending its substance by pointing out that over 100 former patients and eight former employees had called to confirm similar experiences after viewing the report.
After that report, WCPO received almost 200 responses from more patients, this time concerning patient care and sanitation. These patient-care complaints formed the focus of a March 26, 2003, report which featured statements from former employees, including a former office manager who relayed accounts of improper instrument sterilization.
The dentist and the group initially sued just the former patients who gave interviews complaining of billing problems in the first broadcast and the former office manager. WCPO and its reporter, in a highly unusual move, asked the court for permission to intervene, which the court granted. Thereafter, the trial court granted summary judgment in favor of all defendants, applying the private-person plaintiff standard for the first broadcast, but using the higher standard applicable to limited purpose public figures for the second broadcast due to the publicity garnered by Dr. Fuchs and the dental group with the full-page ad in the Enquirer on March 23, 2003.
On appeal, the Ohio First Appellate District held that the trial court erred in holding that plaintiffs became limited purpose public figures by virtue of their full-page ad, noting that:
A plaintiff does not become a public figure merely because the allegedly defamatory statements create a controversy; the controversy must have existed prior to the statements. And the alleged defamers cannot, by provoking a response to an attack, make the subject of the statements – the one attacked – a public figure simply because the attacked person responds.
The appellate court did not entirely foreclose this line of argument in future cases, because it explained, “This is not to say that in another case, with different facts, placing ads or replying to charges could not rise to a level to change a private person to a public figure.”
The appellate court then turned to the claim against each defendant:
Claim against former patients: At the outset, the appellate court noted that viewers generally regard investigative reports as factual. However, due to the use of “language of apparency” and “cautionary terms” in certain of the patients’ statements, the court held that those statements were non-actionable opinion. The remainder of their statements were held non-defamatory because they were true – both patients had, in fact, been overbilled, as they told the station.
Claim against former office manager: Although unable to verify whether the office manager’s statements, which were based on information given to her by a dental assistant, were true, the appellate court nonetheless held that they were non-actionable because “there was no evidence to suggest that Orr [the office manager] had any reason to disbelieve [the dental assistant],” and the information was supported by statements from other former employees.
Claim against reporter and WCPO: The appellate court held that there was no evidence by which a jury could find clear and convincing evidence that the station and its reporter had acted unreasonably; in fact, the court explained that, “we are not sure what more [the reporter] could have done,” pointing to the reporter’s substantial investigation, numerous sources, and the abundance of back-up and supporting documentation the station received after its broadcasts.
For more information, e-mail Christina LaRosa at christina.larosa@hklaw.com or call toll free, 1-888-688-8500.