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Lawyers representing a doctors’ group that used videotape of a woman’s emergency room visit as part of a tort reform infomercial argued on Monday that their clients’ actions are protected political speech. The family of the now-deceased woman, Sarah Evelyn Blissitt, sued in September, alleging invasion of privacy. At Monday’s hearing, lawyers for the nonprofit Doctors for Medical Liability Reform and the public relations firms hired to create the infomercial — Ackerman McQueen and The Mercury Group — argued before Fulton County Superior Court Judge Rowland W. Barnes that the woman’s family should be barred from bringing claims against the infomercial’s producers by Georgia’s anti-SLAPP statute. The defendants’ lawyer, Ronald T. Coleman Jr., of Parker, Hudson, Rainer & Dobbs, argued that the suit involves the “type of core First Amendment activity” that Georgia’s anti-SLAPP statute, O.C.G.A. � 9-11.11.1, is designed to protect. The statute generally protects political speech from being chilled by abuse of the legal system. The Blissitts’ attorneys, D. Brandon Hornsby and Albert M. Pearson III of Atlanta’s Moraitakis, Kushel, Pearson & Gardner, argued that the anti-SLAPP statute doesn’t apply because the suit isn’t targeting protected speech. Pearson said it’s aimed at invasion of privacy and the “unlawful conduct” used to create the video. CAMERAS IN THE ER The dispute dates back to Feb. 27, when Blissitt, then 76, was taken by ambulance to St. Joseph’s Hospital of Atlanta for treatment of a spiral fracture to her tibia and fibula. Her husband and children met her at the hospital. That same day, a camera crew at St. Joseph’s was filming patients as they were brought into the emergency room, and Blissitt was one of those caught on film. The filming was part of a broader effort by Doctors for Medical Liability Reform, an organization that touts itself as a coalition of more than 230,000 medical specialists, to mount support for federal legislation aimed at reforming medical liability laws. The group’s campaign in Georgia included print and radio ads, as well as the 30-minute infomercial in which Blissitt appears. The first shot of the elderly woman appears in the 12th minute of the video as a team of five emergency workers lifts her from a stretcher to a hospital gurney. She is wrapped in blankets, and her mouth is agape and drooping, the effect of a mini-stroke suffered some time before the hospital visit. The shot lasts two to three seconds. A little more than 30 seconds later, Blissitt is seen from a side angle being wheeled in on a stretcher. She is strapped down with an oxygen hose leading to her nose, and her head is propped up by at least three pillows. The infomercial, which contains footage shot at other Georgia hospitals, aired on both network and cable TV. It makes the case for medical liability reform through interviews with doctors who have left their practices — or left Georgia — and through interviews with the patients they’ve left behind, in addition to the emergency room footage. According to the complaint, Blissitt’s family noticed the film crew and asked what they were doing in the emergency room. Blissitt v. Doctors for Medical Liability Reform, No. 2004CV90693 (Fult. Super. filed Sept. 3, 2004). The complaint says the crew told Blissitt’s family that it was filming an “in-house video, to show how the emergency-room team related with the emergency-room technician teams that were bringing patients to the hospital’s emergency room.” Blissitt’s family members never were told “the true purpose” of the filming, nor were they told that their mother had been filmed, the complaint says. Less than six weeks later, Blissitt died. Her son, Bob Blissitt, was watching TV on July 24 when he saw the infomercial. LACK OF PROTEST At Monday’s hearing, Coleman said his clients deny making any misrepresentations to the Blissitt family. He also produced what he called a consent agreement purporting to have given the camera crew permission to film Sarah Blissitt. But the family’s lawyer, Hornsby, said the patient did not sign the form. Her daughter, Carol Blissitt, signed it after being told it was needed for billing and treatment purposes, he said. He also noted that although Carol Blissitt signed the form after the filming, someone else had backdated her signature. The eight-page form has only one line that mentions giving consent to be photographed for security, training and educational purposes. Coleman said that the educational purposes clause applies to the infomercial, and therefore his clients had permission to film Sarah Blissitt. In addition, the form shows that the patient consented to an “intrusion on her seclusion,” Coleman argued. Moreover, because the film crew stopped shooting when asked to do so, but neither Blissitt nor anyone from her family made such a request, the lack of protest may be perceived as a consent, Coleman said at the hearing. The defense lawyer also drew comparisons between his case and a recent Georgia Supreme Court decision, Denton v. Browns Mill Development Co., 275 Ga. 2 (2002). In Denton, the Supreme Court ruled that the act of trespass by a DeKalb County resident who ventured onto private property to document and later publicize purported violations of state and federal soil erosion and water protection laws could not be protected by the state’s anti-SLAPP statute. But, in the Blissitt case, the camera crew had permission to film at St. Joseph’s, Coleman told the court. “Our presence � did not constitute a trespass,” he said. Armed with the hospital’s permission to film and what he alleged was a consent form, Coleman argued that the anti-SLAPP statute protected the camera crew’s actions at St. Joseph’s as well as the broadcast of the infomercial. In the defendants’ motion to dismiss based on the anti-SLAPP statute, Coleman further explained that the “statute applies here because the conduct complained of unquestionably was in furtherance of the defendants’ rights to free speech and the right to petition government regarding legislation currently pending before the United States Congress.” He went on to write, “This conduct is the type of speech at the heart of the protections of the First Amendment and the Georgia anti-SLAPP statute. Plaintiffs’ claims for invasion of privacy arise directly from the defendants’ exercise of those free speech rights.” AN ISSUE OF PRIVACY In their arguments Monday, Hornsby, a sole practitioner, and his co-counsel Pearson disputed Coleman’s allegations. Hornsby and Pearson noted that the anti-SLAPP statute is not applicable in the case primarily because the suit does not target constitutionally protected speech. Specifically, the Blissitt family objected to the physical intrusion into the privacy of their mother’s hospital visit. In addition, the plaintiffs’ lawyers argued that the nonprofit organization exploited Sarah Blissitt by using the footage in an infomercial that furthered one side of a political debate, indirectly helping the group raise money for its cause. Along with Hornsby and Pearson, Nicholas C. Moraitakis also represents the Blissitt family. Moraitakis, who was not present at the hearing, is a Democratic state representative for Atlanta and served on the House Judiciary Committee, which oversaw certain tort reform legislation this year. The single-term legislator did not seek re-election this year, claiming his district had been redrawn to support a Republican. Barnes said he expects to issue a ruling shortly.

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