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Mark v. King Broadcasting Co.

September 29, 1980

ALBERT M. MARK, APPELLANT,
v.
KING BROADCASTING COMPANY, RESPONDENT



Callow, C.j. Andersen, J., concurs. Swanson, J., concurring in part; dissenting in part.

Author: Callow

Albert M. Mark, a licensed pharmacist, brought an action for defamation and invasion of privacy against the defendant, KING Broadcasting Company, arising out of news stories broadcast on the defendant's television station on three occasions. Mark appeals from the trial court's entry of summary judgment in favor of KING Broadcasting.

On December 30, 1976, KING's regular evening news program reported that:

A pharmacist in West Seattle has been charged with cheating the State out of $200,000 in Medicaid funds. The King County Prosecutor's office says it is the largest Medicaid fraud case ever filed in this state. Albert Mark,

who owns two drug stores in West Seattle, is charged with filing a claim that used doctors' names who never ordered the drugs and patients' names who never received the drugs. Albert Mark will be arraigned next week.

On the following day, December 31, 1976, a KING news program reported that:

A West Seattle pharmacist has been charged with defrauding the State of $200,000 for false drug prescriptions. Albert Mark, who owns this pharmacy at 5435 California Avenue S.W., is charged with grand larceny, tampering with evidence and with ten counts of forgery. Gene Anderson, head of the Fraud Division of the King County Prosecutor's office, says Mark filed claims using names of doctors and patients eligible for Medicaid, but those doctors and patients never wrote or received prescriptions. Mark will be arraigned on January 5th.

Finally, on January 7, 1977, a KING news program again reported that:

A West Seattle pharmacist has pleaded not guilty to a charge he cheated the State out of $200,000 in Medicaid payments. . . .

Albert M. Mark is the owner of two drugstores in West Seattle. The County Prosecutor's office says over the past two years Mark has made out over $200,000 worth of false prescriptions for Medicaid patients. The bills for those prescriptions were submitted to the State's Medicaid office. State auditors found out doctors never ordered the prescriptions and their patients never got them. Mark appeared in court today. He pled not guilty to grand larceny, tampering with physical evidence and ten counts of forgery.

In conjunction with the January 7, 1977, report, KING aired a film clip taken by its cameraman from the exterior of Mark's pharmacy. The footage included shots of the exterior of the pharmacy and of the interior as seen through the front window. The view of the interior included a view of an individual with a wall-mounted telephone to an ear.

On the morning of December 30, 1976, an information was filed by the King County prosecutor's office in King

County Superior Court charging Mark with grand larceny, 10 counts of forgery, and tampering with physical evidence. Regarding the grand larceny charge, the information alleged that Mark defrauded the State of "checks and money of a value in excess of $75," and that Mark "submitt[ed] voluminous amounts, the exact number unknown, of forged and false prescription forms" and had "collected substantial sums of money from the Department, the total amount unknown, in the form of payment on the aforesaid false and fraudulent prescriptions."

An affidavit of probable cause, which was a matter of public record and signed by the chief deputy prosecuting attorney, provided in relevant part as follows:

The instances collected by the Department of Social and Health Services investigators pursuant to the search warrant and through subsequent inspection of records maintained on Mark's premises coupled with follow-up interviews of doctors and recipients reflects false claims and payments substantially in excess of $75.

Further, in that regard an audit was begun on or about October 12, 1976. At that time, a sampling of Medicaid prescriptions billed by Mark to the department were taken from records subpoenaed for inspection but kept at the premises. The sample period was from January 1, 1974 to August 31, 1976. The total number of prescriptions including both Medicaid and private patient for this period numbered about 135,760. Only Medicaid prescriptions were picked and the sample taken after being verified resulted in a 63% invalid figure or over $200,000 in fraud billing for the 2 2/3 years. This first audit was completed by about the end of November, 1976. A second audit to verify the first with a larger sample (300) was planned to begin December 6, 1976. The results of the first audit were communicated to Mark through his attorney and the need for verification using a larger sample was stressed.

It is undisputed that the information and affidavit of probable cause provided the factual ...


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