ABC's Desperate Housewives' 09/30/07 Episode Slandered Philippine-educated Physicians

By: Roman P. Mosqueda, Esq.

Hollywood actress Teri Hatcher, as Susan Mayer Delfino in ABC's Desperate Housewives, in its September 30, 2007 episode, said: "Okay, before we go any further, can I check those diplomas? Because I would just like to make sure they are not from some medical school in the Philippines."

In the October 03, 2007, letter of Dr. Virgilio R. Pilapil, President of the Association of Philippine Physicians in America (APPA), to Mr. Mark Pedowitz, President of ABC Television Network, based in Burbank, California, he correctly observed: "The obvious implication that leaps out of the comment is that Philippine medical schools are not of good quality and so are their graduates."

Dr. Pilapil further corrected the statement: "These are definitely not true because Filipino physicians in this country have never had such a reputation but are instead well respected and trusted by the people they serve because of the excellent medical care that they provide on top of their very compassionate attitude."

Disparaging racial stereotyping? No doubt about that!

Actionable slander in California? Yes, for the reasons in the following legal brief.

Elements of Slander Under California Civil Code:

Section 46 of the California Civil Code defines slander as: "a false and unprivileged publication, orally uttered and communicated by radio or any other means, which charges or imputes that a person has committed a crime, has an infections or loathsome disease, or is impotent or unchaste, or which tends to directly injure a person's business or professional reputation, or which causes, by natural consequence, actual damage."

The first element of actionable slander in California is the making of false statement. Section 46 of the Civil Code as applied by case law requires that a publication must contain a false statement of fact to give rise to liability for defamation. Also see California Jury Instruction No. 7.04.1.

For the definition of slander to be meaningfully applied, the statement must be capable of being proved false or true, according to Savage v. Pacific Gas & Electric, (1993) 21 Cal. App. 4th 434, 445, 26 Cal. Rptr. 305, 313.

Whether "some medical school in the Philippines" are below accepted standard of quality, and their medical graduates poorly educated and trained are capable of being proved false or true, in the opinion of this Author.

The second element of actionable slander is the oral publication of the defamatory statement. It cannot be disputed that the oral statement of Teri Hatcher was broadcast on television on September 30, 2007 in ABC's Desperate Housewives' episode.

The third element of actionable slander is sufficient allegation of slander of or concerning the plaintiff. Under California Code of Civil Procedure Section 460, a complaint for slander is sufficient (not susceptible to demurrer for uncertainty), if it pleads that words were spoken of and concerning the plaintiff without pleading the underlying facts.

Thus, if the statement contains no specific reference by name or clear implication to plaintiff, the complaint fails to state a proper claim for defamation, even though it pleads that the words were of and concerning the plaintiff. See Noral v. Hearst Publishing, Inc. (1940) 40 Cal. App. 2d 348, 353, 104 P.2d 860.

In the statement of Teri Hatcher, although no specific reference by name was made, there is clear implication to Filipino physicians educated in some medical schools in the Philippines, in the opinion of this Author.

The fourth element of actionable slander is slanderous statement. In the determination whether a statement is defamatory or slanderous, California courts look to what is explicitly stated, as well as to what insinuation and implication can be reasonably drawn from the communication. See Pulver v. Avco Financial Services , (1986) 182 Cal. App. 3d 622, 637-38, 227 Cal. Rptr. 491, 499.

Under California Jury Instructions 7.01, "(t)he defamatory nature of a false and unprivileged publication must be determined by the nature and probable effect of the publication on the mind of the average listener. Consequently, if the average listener would regard it as a defamatory publication it may be slanderous on its face even though it is also susceptible of innocent meaning."

But remarks that a reasonable person would understand, by its nature and context, to be a joke or a parody cannot support an action for slander. See Polygram Records, Inc. vs. Superior Court (1985), 170 Cal. App. 3d 543, 216 Cal. Rptr. 252, on monologue by comedian Robin Williams could not support an action for slander.

In this case, Teri Hatcher is no Robin Williams. And even if she or the scriptwriter(s) meant it to be a joke, no fair-minded person could construe her statement as a joke. But even if considered a joke, humor will not necessarily preclude responsibility for defamation. See Amo v. Stewart, (1966) 245 Cal. App. 2d 955, 962, 54 Cal. Rptr.3 392, 396.

Demand For Correction, Refusal, And Damages:

Under Section 48a(1) of the California Civil Code, if the slander was published in a radio or television broadcast, the plaintiff may recover no more than special damages, unless a correction is demanded in writing within 20 days after becoming aware of the alleged slander.

If the radio or television broadcaster fails to properly comply with the demand for correction within three (3) weeks after such demand for correction was served on the broadcaster, that is, no correction was broadcast, or such correction was broadcast but not in substantially as conspicuous manner as was the statement claimed to be defamatory, plaintiff is entitled to recover general, special, and exemplary damages, under Section 48 a(2) of the Civil Code.

Conclusion:

In the experience of this Author, many of the defamation complaints he has filed in court were settled, but at least one resulted in plaintiff's judgment; and the defamation cases he has defended were dismissed. But serious defamatory statements especially involving a large group of persons should be corrected by more than just mere apologies.

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(The Author, Roman P. Mosqueda, has personally litigated several defamation (slander and libel) cases. He filed a libel complaint with the Norwalk Superior Court just last month. He has also represented several defendants in libel cases, including a case involving the wife of a Philippine Consul General, which was dismissed by the Los Angeles County Superior Court.

He is proudly married to Dr. Mariedel R. Leviste, an internationally-renowned Board-Certified Internist and Dermatologist and authority on ethnic skin with her own skin products. She is a graduate of the University of Santo Tomas, College of Medicine, in the Philippines.)