The Oregon Supreme Court has affirmed a $1.5 million jury verdict in an unusual fraud case, ruling that a publisher who deliberately misrepresented a doctor's qualifications in an advertisement was liable for a botched liposuction that the doctor performed on a patient.
Dr. Timothy Brown's ad in Dex Yellow Pages “was designed to mislead potential patients into believing that Brown was a board-certified plastic surgeon, thereby luring them into accepting surgery by Brown that he was not specially trained to perform,” the court said in an Oct. 9 decision.
“The misrepresentation created the risk,” it continued, “that those who relied on it would be harmed as a particular result of Brown's lack of expertise as a plastic surgeon, and that is what happened to plaintiffs.”
Michelle Knepper chose Brown, of Portland, Ore., to perform liposuction on her after seeing his ad, which was published under the subheading “Surgery, Plastic and Reconstructive.” After he botched the surgery, she and her husband sued both Brown and publisher Dex Media, alleging medical malpractice and fraudulent misrepresentation.
Brown was certified only in dermatology but the ad stated he was “board certified” without specifying a particular area of certification. According to the opinion, Dex's sales rep had told the doctor's office manager that the ad should identify him as “board certified” and “Brown, who had the final say, acceded to [the rep's] advice.”
Dex argued that Knepper failed to present evidence establishing Brown's negligent treatment of her was a reasonably foreseeable consequence of the publication of the ad. It also said that imposing liability on a publisher for an ad which was published without any intent to harm another would have a chilling effect on the free flow of information.
But Knepper's medical expert testified he had never seen adverse results like those Knepper experienced from a board-certified plastic surgeon. And Justice W. Michael Gillette, writing for the Supreme Court, concluded that
Dex had reason to expect that Knepper would act in justifiable reliance on Dex's misrepresentation by retaining Brown for the surgery, and that an adverse result was more likely if Brown, rather than a board-certified plastic surgeon, performed liposuction surgery.
As for free-speech concerns, Gillette said, “This is not a case of the unwitting publication of an advertisement that turns out to be false. It is, instead, a case in which the publisher took a knowing and active part in the perpetration of the fraud.”
The verdict included $1.2 million to compensate Knepper for her injuries and $375,000 to her husband for loss of consortium. "Board-certified is a big deal for consumers," plaintiffs' attorney Gregory Smith told The Oregonian. “It's OK if your pizza guy is not the best pizza guy, but your doctor ...?”
Brown, who attempted two further surgeries on Knepper to repair the damage from the initial surgery, settled her malpractice claim for an undisclosed amount. The procedures left Knepper with what an expert witness described as an “uncorrectable disaster.”
The Supreme Court did not discuss whether the Kneppers should have, for example, checked out the framed certificates on Brown's wall rather than rely exclusively on his ad in hiring him.
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COMMENT
"Most definitely, the Kneppers did check out the certificates and licenses on the wall, which were very clever, as well as the ambience of the office.”
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By Matthew Heller
10/14/08 
