I am a Doctor On TV, But am I Playing the Part of Your Doctor? -- Mark A. Fischer

Mark A Fischer is a partner at Duane Morris LLPReal and fictional doctors have been staples of television for decades Viewers can tune in and listen to remedies offered by amp8220The Doctorsamp8221 amp8220Dr Drew on Callamp8221 and amp8220The Dr Oz Showamp8221 among many other real and fictional healthcare providersOn April 28 2012 famed cardiothoracic surgeon and television health guru Dr Mehmet Oz broadcast an episode of his show in which he offered a simple homespun remedy for viewers whose sleep suffers due to cold feet Dr Oz suggested that those afflicted with this condition use amp8220Knapsack Heated Rice Footsiesamp8221 What are Knapsack Heated Rice Footsies you might ask The audience was told by Dr Oz to place some uncooked rice in their socks microwave them and wear the socks for 20 minutes This is exactly what Dr Oz viewer Frank Dietl didUnfortunately for the 76yearold Dietl in addition to chilly feet he also suffered from diabetesinduced neuropathy This condition meant that he could not feel the hot rice as it was afflicting his feet with third degree burns Mr Dietl filed suit claiming that Dr Oz the show its studio and production companies were negligent in not including a disclaimer for viewers with neuropathy or other conditions that might affect their ability to feel heat Mr Dietl maintained that he trusted Dr Oz as he would his own physician and that had there been a warning for viewers regarding heat sensitivity he would not have used the remedyJudge Suliann Scarpulla of the Supreme Court of the State of New York found in favor of Dr Oz holding that amp8220Americaamp8217s Doctoramp8221 was not negligent for Mr Dietlamp8217s injuries because he owed no physicianamp8217s duty of care to his television audience In her opinion Judge Scarpulla focused on the requirement that a doctorpatient relationship exist between the parties in order for a duty of care to arise and reasoned that with such a large viewership Dr Oz could not have created this necessary relationship with any one audience memberAs more media companies turn to specific consumer tailored content increasingly delivered through interactive platforms with demographic and enduser specific data perhaps courts may someday find that a special relationship does exist As these new forms of media incorporate personalized information into the advice they offer conceivably they may expose themselves to the risk that they will not have the protection afforded Dr Oz Further there is a strong First Amendment value in encouraging free speech without incurring liability for readers or viewers who follow what they learn without getting specifically tailored advice Knowledge smartly used is powerFrom time to time courts have found liability for amp8220negligent publicationamp8221 in cases varying from a missing mountaintop on an aeronautical map to a negligently prepared school science experiment But in general without a special relationship like that between a doctor and patient or lawyer and client there is no guarantee that TV or Internetsourced information will apply to you There is no shortage of celebrity endorsed selfimprovement products weightloss aids plastic surgery substitutes and other ideas and systems to look prettier handsomer and more attractive The Internet and bookstores are brimming with such products Itamp8217s up to consumers to sort filter and doublecheck the tsunami of information Further under First Amendment principles generally such advice may be inaccurate without necessarily resulting in liability putting aside the substantial body of trade law and food and drug law for a moment Here though both the law and common sense seem to be in synch Consult your own doctor to make sure the TV doctoramp8217s advice no matter now wellintentioned or accurate it may be in general applies to you Mark A Fischer is a partner at Duane Morris LLP His law practice is focused on solving problems and making deals for innovative companies institutions and individuals Mr Fischeramp8217s clients are typically in the creative industries such as new media social networking music interactive entertainment information technology software television publishing and toys You can read his professional biography here He may be contacted at mafischerduanemorriscom Check us out on Facebook at MediaBizBloggerscomFollow our Twitter updates at MediaBizBloggerThe opinions and points of view expressed in this commentary are exclusively the views of the author and do not necessarily represent the views of MediaBizBloggerscom management or associated bloggers MediaBizBloggers is an open thought leadership platform and readers may share their comments and opinions in response to all commentaries

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I am a Doctor On TV, But am I Playing the Part of Your Doctor? -- Mark A. Fischer

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