Humana Inc. Says ‘Elsewhere’ Portrayal Too Close For Comfort

PADUCAH, Ky. (AP) _ A federal judge Wednesday refused to prohibit the showing of NBC-TV’s ″St. Elsewhere,″ rejecting arguments from Humana Inc. that the show’s portrayal of the ″Ecumena″ hospital chain was too close for comfort.

U.S. District Judge Edward H. Johnstone issued his order just hours before the show’s scheduled air time after an NBC lawyer promised the network would run a disclaimer saying that ″Ecumena″ is not intended to represent a real company.

″We at NBC are very pleased with the judge’s decision, but other than that we really can’t comment at any great length because we haven’t seen the decision yet,″ said Brian Robinette, the show’s publicist.

The show would run the disclaimer for the next several episodes, he said.

Humana decided not to appeal, but said it would continue with its lawsuit, and Johnstone set a hearing for Oct. 8.

Johnstone had said earlier that a panel of the 6th U.S. Circuit Court of Appeals was available in Cincinnati for an emergency appeal.

Humana, the nation’s No. 2 hospital chain, had asked Johnstone for a restraining order to stop NBC from using the name ″Ecumena″ for the fictional owner of the hospital on the show pending a hearing on a lawsuit alleging trademark infringement.

Humana asked unspecified damages.

NBC faced the loss of $1 million in advertising and the 11.5 million viewers the show normally attracts if the show were pulled, network lawyer Donald Mulvihill had said earlier.

″I honestly don’t know what we would do, what the network would plug in,″ he had said. ″And ratings - one night when they switched channels would be disastrous.″

The script for the show called for the departure of Ed Flanders, who has played Dr. Donald Westphall since the show began. The episode itself was noted since Flanders dropped his pants at the conclusion to ″moon″ his hospital’s new owner.

When the Emmy-award winning ″St. Elsewhere″ debuted this season, it introduced ″Ecumena″ as the new owner for the hospital, St. Eligius.

Ecumena was portrayed as a for-profit hospital chain based in the Midwest that manages an artifical heart program.

Humana is a for-profit hospital chain based in Louisville, Ky., that is home to the only permanent artificial heart program in the United States.

A blue sign with Humana-type lettering also appeared on the building of the hospital, said Jim Cox, a Louisville lawyer representing Humana.

NBC, which is owned by General Electric Co., ″believes the complaint is totally without merit,″ Ellen Miller-Wachtel, general attorney for the network, had said before the ruling.

During the hearing, lawyers for Humana played a 20-minute videotape of edited segments of ″St. Elsewhere,″ one of which showed an Ecumena executive rejecting a proposal to establish an AIDS clinic because of ″plain dollars and cents.″

A common criticism of Humana and other for-profit hospital chains is that the profit motive is too often the deciding factor in offering health services.

Humana officials ″don’t like what’s being being said about them so they’re trying to get to us through a trademark infringement case,″ Mulvihill said. If that’s the case, Humana should bring a suit for damages, he said.

Cox also told Johnstone a Louisville television reporter was available to testify by telephone about a news report in which NBC officials acknoweldged that Ecumena was an imitation of Humana.

But Mulvihill said he could counter with testimony by ″St. Elsewhere″ executive producer Bruce Paltron that the Ecumena name acutally was derived from ecumenical, in keeping with St. Eligius’ background as a Cathlolic hospital.

Even if Ecumena was patterned after Humana, Mulvihill said, it is not used as a trademark or service mark because the show is still named ″St. Elsewhere.″

The network attorney said NBC had offered Tuesday to begin inserting disclaimers in the shows saying that Ecumena was a fictional company and was not intended to represent any real company. Humana officials turned down the offer, Mulvihill said.

Cox said a disclaimer would be meaningless and offered in evidence a New York Post preview of the new ″St. Elsewhere″ season which noted that Ecumena ″sort of rhymes with Humana.″

The hearing on the restraining order was moved from Louisville after U.S. District Judge Thomas A. Ballantine, who sits in the city, took himself off the case because he owns stock in Humana, the second-largest hospital chain after Hospital Corporation of America.