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Blog: Jack "Out of the Box"

Welcome to Jack "Out of the Box." This is a spin-off of the Firm's InfoLaw Newsletter, much like "CSI: Miami" is a spin-off from "CSI." Except without all the corpses. I plan to update the blog at least weekly. Really. It's not like when I used to promise my mom to clean my room once a week. I'm more mature now. And of course, the InfoLaw Newsletter will continue every two weeks. The blog will feature shorter pieces, and ideally, reader feedback. Should be fun. Oh yeah, and informative.

No Duty For Dr. Oz; No Case For Viewer

Oct 16, 2013

A New York trial court’s dismissal of a personal injury case against TV’s Dr. Oz reminds us that in most cases, a TV personality owes no duty to any individual viewer.  And that typically means that a viewer who suffers an injury after relying on the TV personality’s advice can’t proceed with a law suit.

The plaintiff in this case is Frank Dietl, a 76 year old fan (or, I suppose at this point, a former fan) of Dr. Oz. On a program that aired in April of 2012, Dr. Oz suggested to viewers that they could avoid losing sleep due to cold feet by simply putting uncooked rice in their socks, warming the rice in a microwave, and then putting the socks on their feet. I’m serious. 

Dietl decided to give it a try. Unfortunately Dietl suffers from neuropathy and reduced sensation in his extremities. Which means he couldn’t feel how hot he’s cooked the rice. He sustained second and third degree burns. He sued Dr. Oz, alleging that Dr. Oz failed to properly instruct the audience on the procedure and failed to warn about risks for folks like Dietl. 

The court made short work of Dietl’s complaint. It noted that Dietl had no doctor patient relationship with Dr. Oz. More importantly, the court found no precedent to support a finding that a TV personality owes a duty of care to his audience. And it said it would be bad policy to create one. For these reasons, the court dismissed the case. 

The decision makes sense. While a doctor who sees a patient in a one on one session can fully consider the peculiar risks that patient poses, a doctor speaking to a mass audience cannot possibly take into account all of the variations present in the audience. There would also be significant proof problems if a case like this went forward. Did Dietl rely solely on Dr. Oz? Did he read or view any other material that led him to try the rice in the sock maneuver?

And of course, the chilling effect on speakers would be enormous if cases like this could proceed. The safer course would be to say nothing. And that would leave a lot of dead air space in afternoon TV.

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