Doctor Claims Fox News Defamed Him

CHICAGO (CN) - A plastic surgeon claims Fox News defamed him in a "premeditated attack": a 9-minute "sensationalistic conglomeration of multiple blatantly false statements, altered photographs, and editing designed to misrepresent reality." Dr. Jay Pensler particularly objects to being referred to as "a butcher."

Pensler sued Fox TV, its Chicago station's "investigative reporter" Mark Saxenmeyer, its executive producer Dan Schwab, and Carol Oshana, an attorney who allegedly represents or represented some of Pensler's allegedly dissatisfied patients.

"This action arises out of a nine-minute Fox Chicago News Report (the 'Report') aired on Fox's television stations wherein Fox and its agents Saxenmeyer and Schwab, with the substantial participation of Oshana, intentionally published and republished false and defamatory statements that injured Dr. Pensler, a respected and successful plastic surgeon in Chicago, Illinois," the complaint states in Cook County Court. "When considered in its entirety, the only reasonable construction that can be given to the Report is that it is a premeditated attack on Dr. Pensler's professionalism as a plastic surgeon without any reasonable investigation into the facts of the claims or the credibility of those making the claims. The Report is a sensationalistic conglomeration of multiple blatantly false statements, altered photographs, and editing designed to misrepresent reality."

Pensler claims, among other things, that Fox News used digitally altered photographs of a patient with breast implants "where one breast is materially smaller and positioned much higher on the chest," and of a patient with shredded and mutilated breasts, "to create the misimpression that Dr. Pensler is, in fact, a 'butcher.'"

Pensler says the report quoted two women, both of whose faces were blurred and voices were altered, who called him "a butcher."

But Pensler says the photos used in the broadcast for both were had been digitally altered.

As for the photo of the woman whose breasts are disproportionate, the complaint states: "This photograph is a fake that has been obviously altered and does not accurately reflect how this patient looked at any time after her surgery. The patient whose breast augmentation this picture allegedly represents (for whom Oshana acts as legal counsel) left Dr. Pensler's care with successful results that were within the accepted parameters for similar procedures. In fact, photographs taken by this patient of herself prior to the first broadcast of the Report (of which Oshana had knowledge and which are set forth immediately below) reveal that this patient had an excellent result after surgery."

A second photograph showed "a woman's breasts that appear shredded and mutilated in order to create the misimpression that Dr. Pensler is, in fact, a 'butcher,'" the complaint states. "Simultaneously with this presentation of this photograph, Saxenmeyer reports: 'This is how one patient looked days after her surgery [by Dr. Pensler].'" (Brackets in complaint.)

But Pensler says: "This photograph is a fake, has been digitally altered and does not accurately reflect how this patient looked days after her surgery by Dr. Pensler, assuming the photograph is of a patient of Dr. Pensler."

Pensler also claims that Fox misrepresented his legal history, with "Saxenmeyer reporting, 'She [attorney Oshana] says Dr. Pensler is no stranger to the legal system. Fox Chicago has determined that since 1997, the doctor has been involved in 15 court cases, including multiple malpractice lawsuits filed against him, one of which is still pending.'"

Pensler says this is false: "In the context of the entire Report, the only reasonable construction that can be made from Saxenmeyer's statement is the false one that

Dr. Pensler was sued for medical malpractice in fifteen court cases and that he was found negligent or liable in each of those cases. In fact, either Dr. Pensler was dismissed as a party in a multi-party lawsuit or each lawsuit was dismissed in its entirety before trial. Moreover, Dr. Pensler has never paid any money to settle

any claim against him."

Pensler says the defamatory report was rebroadcast on a Fox station in Boston, and on the Internet.

He seeks punitive damages for defamation, recklessness and false light. He is represented by Robert Chapman with Chapman and Spingola.

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