A highly speculative article came to my attention today that reports a “rumor” that Newport Imaging is “considering” having Brooks “investigated” for fraud. As you may or may not recall, Brooks showed Tamra on RHOC a “PET” scan purportedly from Newport Imaging that also purportedly confirmed that he had cancer. The problem was that Meghan King Edmonds called Newport Imaging, and they said that they do not do PET scans for that type of cancer. The analysis of Brooks’ potential liability assumes, without deciding, that the record is fake.
Issue: Can Brooks be held civilly or criminally liable if he falsified a PET Scan from a particular medical establishment?
Short Answer: Probably not….it’d be a stretch.
Cal. Pen. Code section 471.5 provides: Any person who . . . with fraudulent intent, creates any false medical record, is guilty of a misdemeanor.
According to CALCRIM: Someone intends to defraud if he or she intends to deceive another person either to cause a loss of (money[,]/ [or] goods[,]/ [or] services[,]/ [or] something [else] of value), or to cause damage to, a legal, financial, or property right.
I cannot imagine how you could even support a “hunch” that Brooks falsified the record for money or to financially damage someone. Of course, as I previously blogged, he might lie so he can swindle Vicki into financially supporting him or to restore his reputation with RHOCNation, but reaching these conclusions would be highly speculative. Verdict: Not Guilty.
I am no civil lawyer. I am told that these are the elements of the fraud tort:
(1) a representation; (2) falsity of the representation; (3) materiality of the representation; (4) speaker’s knowledge of the falsity of the representation; (5) the speaker’s intent it should be relied upon; (6) the hearer’s ignorance of the falsity of the representation; (7) the hearer’s reliance on the representation;(8) the hearer’s right to rely on the representation; and (9) the hearer’s consequent and proximate injury caused by reliance on the representation.
This is even weaker than criminal fraud. Who is the victim? According to the article above, it would presumably be Newport Imaging. Brooks did not make the representation to Newport Imaging. So elements (5)-(8) are out. Even if the victim were Tamra, how is the misrepresentation material without the exchange of money? Tamra did not really seem ignorant of the falsity and did not appear to have relied on the representation. Neither is there a compelling argument that she had the right to rely on it. And, of course, no injury.
Verdict: Not liable.
What about negligence? (1) duty; (2) breach; (3) causation; (4) damages.
This seems more on par. Everyone has a duty to act reasonably so as to not harm others. It is fair to say that if you fake a medical record you are not acting reasonably, especially when naming the place who purportedly produced the record on national television. Producing the fake record is the only, and certainly proximate, cause of any subsequent injury. Newport Imaging might be able show damages from interference with their business by the bombardment of phone calls and damage to their reputation because the record itself looked super unprofessional. Of course, these damage are foreseeable from making a shitty false record, naming where it is from, and presenting it on national television. Can anyone think of any other damages? Again, seems weak but more possible than other theories.
Verdict: Who the hell knows.