5/20/2014 7:44:00 AM,
Jeff D. Gorman
(CN) - A pediatrician disciplined for treating her adult lover may be able to show that news reports falsely implied that she had had sex with a child, a Texas appeals court ruled.
In her physician profile with the Texas Medical Board, Minda Lao Toledo is described as a Philippines-born pediatrician who has practiced in Texas for five years, according to the decision. Toledo was among 55 physicians the board disciplined in August 2012, and it described her misconduct in a press release as having "behaved unprofessionally when she engaged in sexual contact with a patient and became financially or personally involved with a patient in an inappropriate manner."
The downloadable copy of that disciplinary order neither mentions the patient's age, however, nor states that he was an adult when Toledo was treating him. It says the patient, described only as JC, was not her patient when their relationship began.
Toledo explained that the patient in question was her 60-year-old boyfriend, for whom she bought testosterone and human growth hormone and administered the injections for his convenience. She said JC had reported her to the board because he was "soured by the recent breakup."
KBMT-TV, an ABC affiliate in Beaumont, never made this distinction, however, in reporting her actions over a three-day period, according to Toledo's complaint.
The three news broadcasts allegedly described Toledo as a pediatrician and said "the board found she engaged in sexual contact with a patient and became financially involved with a patient in an inappropriate manner."
Toledo claimed that the broadcast hurt her business, suggested professional incompetence, and ascribed criminal activity and moral turpitude to her.
She pressed defamation claims against KBMT's operating and license companies, as well as Brian Burns, Jackie Simien and Tracy Kennick.
The defendants countered that they were merely reporting on information published by the board, but the Orange County District Court refused to dismiss the case.
A three-judge panel with the 9th District Court of Appeals in Beaumont affirmed on May 8.
"A person of ordinary intelligence viewing the broadcasts would know that a pediatrician is a doctor that specializes in the medical treatment of children," Judge Charles Kreger wrote for the court. "Therefore, the average viewer could, and in most cases would, reasonably conclude that the 'patient' of a 'pediatrician' is a child."
Toledo also presented evidence that the gist of KBMT's broadcast was false and that the case should proceed to trial, according to the ruling.
The media defendants claimed that the fair-report privilege relieves them of any duty to independently investigate and report additional information not provided by the board, including the patient's age and identity, but the court found that their "editorial addition" could leave them liable.
"While both the broadcasts and the press release state that Dr. Toledo 'engaged in sexual contact with a patient' and became financially involved with a patient in an inappropriate manner, the broadcasts, unlike the press release, begin with the assertion that the person who engaged in such conduct was a 'pediatrician," Kreger wrote. "As stated above, this editorial addition to the broadcasts by the media defendants created an impression that could reasonably be interpreted by the average viewer as stating that Dr. Toledo was punished for engaging in inappropriate conduct, including sexual contact, with a child. The press release, by contrast, does not mention Dr. Toledo's medical specialty and contains no information to suggest that the patient in question was a child. The broadcasts, therefore, were potentially more damaging to Dr. Toledo's reputation than an account consistent with the press release would have been. As a result, the broadcasts were not a fair, true, and impartial account of the TMB's press release."