“A Port Arthur pediatrician has been punished by the Texas Medical Board after the Board found she engaged in sexual contact with a patient”

The full statement, on a television broadcast, was this (KBMT Operating Co. v. Toledo (Tex. Ct. App. May 8, 2014):

A Port Arthur pediatrician has been punished by the Texas Medical Board after the Board found she engaged in sexual contact with a patient and became financially involved with a patient in an inappropriate manner. Dr. Minda Lao Toledo will have to complete sixteen hours of continuing medical education, including eight hours of ethics and eight hours of risk management, and pay an administrative penalty of three thousand dollars. Toledo is a native of the Philippines and has been practicing medicine in Texas for five years.

And indeed the Texas Medical Board had apparently issued the following summary of its disciplinary action:

On August 31, 2012, the Board and Minda Lao Toledo, M.D., entered into an Agreed Order requiring Dr. Toledo to complete 16 hours of CME including eight hours in ethics and eight hours in risk management, pass within one year and within three attempts the Medical Jurisprudence Exam, complete the professional boundaries course offered by the Vanderbilt Medical Center for Professional Health or a similar course offered by the University of California San Diego Physician Assessment and Clinical Education (PACE) program, and pay an administrative penalty of $3,000 within 90 days. The Board found Dr. Toledo behaved unprofessionally when she engaged in sexual contact with a patient and became financially or personally involved with a patient in an inappropriate manner.

But here’s the twist — though Lao was a pediatrician, the patient was apparently not a child. Indeed, Toledo claims (and the opinion doesn’t suggest that the claim is controverted) that the patient was a 60-year-old man with whom she had a preexisting sexual relationship. The Texas Medical Board’s Agreed Order (available through a query here) confirms the preexisting nature of the relationship, though not the patient’s age:

2. Specific Panel Findings:

a. Respondent entered into a relationship with JC, who was not her patient at the time, and who was being prescribed testosterone to self-administer by another physician;

b. JC related that his diagnosis was an autoimmune disease, for which testosterone is non-therapeutic;

c. Respondent used her medical license to obtain testosterone and human growth hormone for JC while she was in an intimate relationship with him, and administered these substances to him;

d. Respondent did not make or keep medical records on her treatment of JC, nor of her obtaining and using the testosterone and human growth hormone;

e. Respondent accepted gifts from JC during the time she was treating him. …

3. Section 164.052(a)(5) of the Act authorizes the Board to take disciplinary action against Respondent based upon Respondent’s unprofessional or dishonorable conduct that is likely to deceive or defraud the public or injure the public, and as further defined by Board Rule(s):

a. 190.8(2)(E) engaging in sexual contact with a patient; and,

b. 190.8(2)(0) becoming financially or personally involved with a patient in an inappropriate manner.

4. Sections 164.052 (a)(5) and 164.053(a)(5) of the Act authorize the Board to take disciplinary action against Respondent based on Respondent prescribing or administering a drug or treatment that is nontherapeutic in nature or nontherapeutic in the manner the drug or treatment is administered or prescribed.

5. Section 164.053(a)(l) of the Act authorizes the Board to take disciplinary action against Respondent based on Respondent’s commission of an act that violates any state or federal law if the act is connected with the physician’s practice of medicine; specifically: the Texas Controlled Substance Act and [the federal] Comprehensive Drug Abuse Prevention and Control Act of 1970….

So it is literally true that, as the TV broadcast said, Toledo is a pediatrician, that she engaged in sexual contact with a patient, and that she was disciplined for this. But what strikes me as the very strong implication of the broadcast — that Toledo had sex with one of her pediatric patients (isn’t that what you thought when reading the post title?) — is apparently not true: Toledo’s patient was apparently 60, and he had been sexually involved with her before he asked her to treat him. Toledo’s misconduct thus seems vastly less severe than what the broadcast strongly implies.

What then should defamation law do about this? Generally speaking, that a statement is merely incomplete or potentially misleading isn’t enough to make it libelous. Nearly all factual accounts are incomplete in some respect. Nearly all summaries of the facts for a TV broadcast are incomplete in many respects. A very many stories might be misunderstood by some viewers in some ways.

But in some situations, a statement’s strong implication is so far at variance from the truth — even if the statement is literally true — that the courts will allow a defamation claim based on that statement. This is what happened here. The court’s reasoning:

A person of ordinary intelligence viewing the broadcasts would know that a pediatrician is a doctor that specializes in the medical treatment of children. Therefore, the average viewer could, and in most cases would, reasonably conclude that the “patient” of a “pediatrician” is a child.

While it is a true statement, as the media defendants contend, that Dr. Toledo is a pediatrician and that the TMB did discipline her for having improper sexual contact with a patient, the media defendants’ decision to place these two facts together in the same sentence, particularly with the word “pediatrician” being used, in essence, as the subject of the phrase “engaged in sexual contact with a patient,” resulted in a statement that was reasonably capable of being interpreted by the average listener as stating that Dr. Toledo was punished for having improper sexual contact with a child.

Further, the remaining content of the newscasts does not effectively negate the impression that the patient referenced in the broadcast was a child. In addition to stating that Dr. Toledo was found to have engaged in “sexual contact with a patient,” the broadcasts state that Dr. Toledo was found to have become “financially involved with a patient in an inappropriate manner.” The broadcasts do not define or otherwise explain what is meant by the phrase “financially involved.”

Depending on the context, the term could reasonably be construed to have different meanings, including the simple act of gift-giving, which is equally likely to involve an adult or a child. Viewing the broadcast as a whole, a viewer of ordinary intelligence could reasonably conclude that a pediatrician who has engaged in sexual contact with a minor patient might also engage in other inappropriate conduct with that patient, including giving money or gifts to, or accepting money or gifts from, that patient….

[We also] disagree with the media defendants’ argument that the fact that the administrative sanctions referenced in the broadcasts were not more severe negated the impression created by the first sentence that Dr. Toledo had engaged in sexual contact with a child. While it is possible that a careful viewer might have realized that the administrative sanctions referenced in the broadcasts were not the most severe administrative sanctions available to the TMB and might have deduced from this fact that the patient in question was not a child, we must analyze the broadcasts in the context of how the average viewer, not a “careful viewer,” would have perceived the broadcasts.

In this respect, we do not believe that an average viewer is sufficiently familiar with the scope of the TMB’s disciplinary authority — including the administrative rules and regulations governing the range of disciplinary sanctions and penalties available to the TMB, the mitigating factors that the TMB is authorized to consider in imposing a sanction or penalty, or the effect of such factors on any particular sanction or penalty — such that the statements in the broadcast would clarify in the mind of the average viewer that the patient referenced in the broadcast is not a child.

We conclude, therefore, that Dr. Toledo has presented evidence that when viewing the broadcasts as a whole in light of the surrounding circumstances, a person of ordinary intelligence would reasonably but erroneously conclude that the “gist” of the broadcast was that Dr. Toledo was punished for engaging in inappropriate conduct, including sexual contact, with a child.

Eugene Volokh teaches free speech law, religious freedom law, church-state relations law, a First Amendment Amicus Brief Clinic, and tort law, at UCLA School of Law, where he has also often taught copyright law, criminal law, and a seminar on firearms regulation policy.
Comments
Show Comments
Most Read National
Next Story
Stewart Baker · May 11