Jensen v. Sawyers

Decision Date15 November 2005
Docket NumberNo. 20011023.,20011023.
Citation2005 UT 81,130 P.3d 325
PartiesMichael JENSEN, M.D., Plaintiff, Appellee, and Cross-Appellant, v. Mary SAWYERS and United Television, Inc., aka KTVX, Defendants, Appellants, and Cross-Appellees.
CourtUtah Supreme Court

Dale F. Gardiner, Douglas J. Parry, Craig R. Kleinman, Salt Lake City, for plaintiff.

Robert M. Anderson, Jennifer Anderson Whitlock, Bradley M. Strassberg, Salt Lake City, and Thomas B. Kelley, Steven D. Zansberg, Denver, CO, for defendants.

NEHRING, Justice:

¶ 1 Defendants Mary Sawyers and United Television appeal a jury verdict that they defamed Dr. Michael Jensen, invaded his privacy, and intentionally interfered with his economic relations. Dr. Jensen cross-appeals the trial court's reduction of part of the damages award. He also cross-appeals the denial of attorney fees and denial of necessary disbursements as costs. We reverse in part and affirm in part.

FACTUAL AND PROCEDURAL HISTORY

¶ 2 Geoff Goff, an executive producer for Channel 4, KTVX, in Salt Lake City, Utah, met Dr. Michael Jensen at a 1995 Fourth of July party given by a mutual friend, Ms. Johnson. Ms. Johnson, a restaurant critic, remarked to her cousin, Mr. Goff, and Dr. Jensen that she had to exercise all the time because her job required her to eat out so frequently. In response to her jocular comment, Dr. Jensen offered to prescribe her diet drugs—amphetamines—which he explained to Ms. Johnson were an easy and effective way to lose weight. Ms. Johnson did not express any interest in his offer. Dr. Jensen nevertheless persisted and wrote a prescription, giving it to Ms. Johnson. He did so without taking a medical history or making any appointment with her for a physical examination. Ms. Johnson told Dr. Jensen she was not interested in the prescription, but Dr. Jensen advised her to hold on to it, in case she wanted to fill it later. Mr. Goff testified that he found it "unusual" that a doctor would be handing out a prescription for amphetamines at a party with no knowledge of Ms. Johnson's medical history or background.

¶ 3 Later that evening, after Dr. Jensen had left the party, Mr. Goff and Ms. Johnson discussed the "unusual" interaction with the physician. Both believed that Dr. Jensen may have acted unethically in providing a prescription for amphetamines to a patient he had not examined. Mr. Goff stated that "[a]t that point I began to feel that we ... had maybe a news story here." The following day, Mr. Goff met with KTVX news director John Edwards and recounted Dr. Jensen's statements made at the party. Mr. Goff "wrote up the facts as [he] knew them... to give to Mary Sawyers [the station's medical issues reporter] so she could begin looking into the story."

¶ 4 Ms. Sawyers called Dr. Jensen and explained that her managing news editor at KTVX, Mr. Goff, had referred her to Dr. Jensen as someone who could help her lose weight. During the conversation, Ms. Sawyers explained that she was a reporter, but implied that she was calling Dr. Jensen as a prospective patient and not as a reporter. Ms. Sawyers told Dr. Jensen that she had "been on this diet lately and [had not] been able to lose much weight," so she asked if he could prescribe diet pills for her. He replied that "yeah, [he] probably could." Dr. Jensen told her that he would need to see her in person to prescribe diet pills. He also relayed that "I'm the guy to talk about weight loss. . . many physicians are reluctant to prescribe prescription diet pills. I really am not." Dr. Jensen told her that he prescribed Fastin and Pondimin, but that "[t]raditionally what has been used is Dexedrine. Dexedrine is technically illegal to ... use as a diet pill. Though I ... sometimes find people have other disorders that I ... feel comfortable using Dexedrine with."

¶ 5 Ms. Sawyers found Dr. Jensen's admission that he found ways to prescribe Dexedrine as a diet drug "out of the ordinary" and, based on her further research about state laws relating to prescribing drugs, likely illegal. As a result, Ms. Sawyers decided to further pursue the story, concluding that it was "an issue of vital public interest."

¶ 6 Ms. Sawyers, Mr. Goff, and Mr. Edwards decided that Ms. Sawyers would pose as a patient and visit Dr. Jensen. She would record her visit with a hidden camera. The three believed that this plan provided the best way to obtain candid information from Dr. Jensen about his weight loss treatment practices.

¶ 7 Ms. Sawyers scheduled a face-to-face appointment with Dr. Jensen. Ms. Sawyers met with Dr. Jensen in an examination room at the Columbia FirstMed Clinic in Orem, Utah. Ms. Sawyers explained that she was there to obtain the "safest, easiest way to lose weight." Dr. Jensen explained that Fastin and Pondimin were, at that time, the most commonly prescribed medications for weight loss. He added that "[i]f Fastin didn't work for you, I would be willing to work with you. . . maybe using Dexedrine," but repeated his earlier comment that prescribing Dexedrine for weight loss was illegal. Dr. Jensen advised Ms. Sawyers that if she felt her Fastin was wearing off and needed something to pick her up, she could "take a small amount of the capsule and bite it" as a means of "breaking the time release form" of the drug, although doing so is considered a misuse of that drug.

¶ 8 During the appointment, Dr. Jensen did not obtain a complete medical history of Ms. Sawyers. He did not conduct a physical examination. He did not ask her if she was then taking any medication. Dr. Jensen's nurse took Ms. Sawyers' vital signs and asked if she was allergic to any medicines. Ms. Sawyers was not overweight or obese, and she was not weighed by Dr. Jensen or his staff.

¶ 9 Approximately one month later, Ms. Sawyers met with David Robinson, the director of Utah's Division of Occupational and Professional Licensing ("DOPL"). Ms. Sawyers showed Mr. Robinson the video tape of her appointment with Dr. Jensen. After viewing the tape, Mr. Robinson expressed his concerns about Dr. Jensen's interactions with Ms. Sawyers, stating that "I think when you look at the intent of the physician, it's clear that he knows that he is violating the law and is offering excuses for it. And I think he is doing so with potential jeopardy to his patients.... I'm very concerned about it."

¶ 10 After meeting with Mr. Robinson, Ms. Sawyers arranged a second meeting with Dr. Jensen. She told him that she wanted to interview him and that she intended to present a very positive view of diet pills and that she was generally going to talk about the positive effects of diet pills. Dr. Jensen consented to the interview, and the two met at his office at Columbia FirstMed.

¶ 11 Ms. Sawyers began the second meeting by confronting Dr. Jensen with the statements about diet drugs he had made when the two had met previously. In response to his earlier remarks to Ms. Sawyers about Dexedrine, Dr. Jensen told Ms. Sawyers that he had contacted a few pharmacists and DOPL to obtain the rules and regulations for drug prescriptions. He told her that he was no longer able to "work with" her to obtain Dexedrine for weight loss.

The First Broadcast

¶ 12 On September 5, 1995, Channel 4, KTVX, and Ms. Sawyers aired the first report about Dr. Jensen.1 The report featured what it labeled "miracle diet pills" and asked "are doctors prescribing these pills too freely?" Ms. Sawyers told viewers that Dr. Jensen prescribed weight loss medications to her without examining her or asking if she had high blood pressure or diabetes, conditions which could be aggravated by the drugs Fastin and Pondimin. The broadcast also showed the hidden camera footage of Dr. Jensen admitting to Ms. Sawyers that he would be "willing to work" with her using Dexedrine, even though it was "technically not legal for that reason." The report concluded by showing a portion of Ms. Sawyers' interview with Mr. Robinson at DOPL. Mr. Robinson was shown telling Ms. Sawyers that the division was "very interested in" looking into Dr. Jensen's license. Ms. Sawyers told viewers that the "State Division of Licensing and the Federal Drug Enforcement Agency [have] both opened investigations into Dr. Jensen's prescribing practices."

¶ 13 The next day, Columbia FirstMed terminated Dr. Jensen's employment and Mountain View Hospital in Utah County revoked Dr. Jensen's privileges to practice medicine there. In addition, IHC Health Plans removed Dr. Jensen from its insurance panel due to his "unprofessional" and "possibly illegal" conduct that it believed had been disclosed in the September 5 KTVX broadcast.

The Second Broadcast

¶ 14 Nine months later, DOPL filed a petition against Dr. Jensen. The petition alleged that Dr. Jensen's treatment of Ms. Sawyers violated Utah Administrative Code rule 156-37-11(14)(a) and (b),2 and that Dr. Jensen had engaged in unprofessional conduct in violation of Utah Code section 58-1-501(2)(a), (b), and (g).3 KTVX and Ms. Sawyers aired their second report about Dr. Jensen that same day, July 17, 1996.

¶ 15 The second news broadcast told viewers that DOPL had filed a petition for unprofessional conduct against Dr. Jensen. The second broadcast also reviewed the assertion made in the first, specifically, that Dr. Jensen had offered to "work with" Ms. Sawyers on illegally prescribing her Dexedrine.

¶ 16 Later that year, Dr. Jensen settled the DOPL complaint. He admitted that he had "failed to comply with some of the requirements" of Utah's Controlled Substance Rules. Dr. Jensen agreed to a public reprimand, to meet quarterly with professional licensing board members for one year, and to complete courses on proper prescribing practices and medical ethics.

The Third Broadcast

¶ 17 KTVX aired a third broadcast on November 6, 1996. This broadcast highlighted problems with "questionable doctors" in Utah and gave viewers instructions...

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