Judge gives doctor’s defamation lawsuit against CNN green light

CNN had the heartbreaking stories from parents who lost their children. It had damning statements by some of the state’s top cardiologists.

But in its zeal to shut down St. Mary’s Medical Center’s pediatric cardiac surgery program, did CNN purposefully fudge the death rate, reporting it was three times the national average?

Did the cable news giant intentionally defame the physician at the center of the program, Dr. Michael Black, whose photograph was splashed on television sets and websites with the headline: “Babies as sacrificial lambs”?

A Palm Beach County Circuit judge ruled Friday that a defamation lawsuit brought by Black against CNN could move forward, rejecting a motion by the network to dismiss it. Judge Richard Oftedal order 15-page order was built on a foundation of solid libel law that included a federal defamation action against CNN by St. Mary’s former CEO.

“We are pleased with the court’s decision. CNN intentionally misled its readers and intentionally manipulated statistical data to portray Dr. Black in a negative light,” said Libby Locke, the attorney for Black.  “We have every confidence that a jury will reach the same conclusion when CNN’s reporting is scrutinized.”

CNN’s attorney, Charles Tobin, could not be reached for comment late Friday.

Oftedal’s ruling echoes another by a federal judge in Atlanta in February when it allowed the defamation case brought by St Mary’s former CEO, Davide Carbone, against CNN to also move forward. U.S. District Judge Orinda Evans found that Carbone’s allegations were sufficient to establish that CNN was acting “recklessly with regard to accuracy.”

 

Dr. Michael Black

Oftedal, in his order, repeatedly referenced the Carbone decision in denying CNN’s motion to dismiss.

The pediatric cardiac surgery program at St. Mary’s shut down and Carbone resigned following CNN’s June 1, 2015, story titled, “Secret Deaths: CNN Finds High Surgical Death Rate for Children at a Florida Hospital.”

As reported by The Palm Beach Post in several stories, the data used in CNN’s report that St. Mary’s sported a death rate of infants in the unit three times the national average was widely disputed by the hospital and the state’s Agency for Health Care Administration. St. Mary’s said at the time that CNN failed to use risk-adjusted data in determining the death rate.

St. Mary’s, owned by Tenet Healthcare, said CNN missed numerous operations and procedures in its analysis.

Black has gone further, saying in court CNN purposefully manipulated the data in order to justify its narrative.

After the criticism, CNN published a story on its methodology as the statistics took center stage, overshadowing the parents featured in the story and a report finding problems with the program by the state’s Cardiac  Technical Advisory Panel. Black is the defendant in lawsuits brought against him by parents of his tiny patients who died or who ended up crippled.

Oftedal rejected CNN’s efforts to dismiss Black’s suit by arguing that the doctor was a public figure and that it was really criticizing St. Mary’s and not the physician. He didn’t buy CNN’s argument that the sensationalized headlines used in the story were just “rhetorical hyperbole” and protected free speech.

The judge noted CNN reported that Black made a “total mess of the babies,” juxtaposing the phrase with the doctor’s photograph.

 

 

Doctor’s lawyer: CNN purposely skewed St. Mary’s death rate

CNN deliberately exaggerated the death rate of infants undergoing heart surgery at St. Mary’s Medical Center, purposefully painting a renowned surgeon as an incompetent doctor who butchers babies for profit, the physician’s lawyer told a judge on Friday.

Dr. Michael Black is suing CNN for libel and defamation for its story on June 1, 2015, about St. Mary’s pediatric cardiac surgery program. The hospital closed the program a few months later and its CEO resigned.

“CNN intentionally manipulated statistical data to support its false narrative that Dr. Black was unfit to perform operations on these very sick children,” said his attorney, Libby Locke, after a hearing on whether to dismiss her client’s lawsuit.

“Through their defamatory articles and videos, CNN has deprived Palm Beach of an incredibly valuable pediatric cardiac surgery program.”

She urged Circuit Judge Richard Oftedal to reject the motion to dismiss and to allow a jury to decide what Black’s reputation is worth. She noted how the news network took a quote from one grieving parent that Black was offering up babies as sacrificial lambs,” and juxtaposed it with a photograph of the doctor.

Black contends in the defamation and libel lawsuit that CNN;’s story unfairly disparaged him and forever damaged his reputation. He still is employed at St. Mary’s, but has not done any surgery since the program was closed in August 2015.

The doctor is also facing several malpractice suits filed by parents of babies who died after heart surgery at St. Mary’s, but Friday’s hearing was about Black’s defamation claims against the cable news giant. CNN is trying to get Oftedal to dismiss the lawsuit.

St. Mary's Medical Center in West Palm Beach, Florida on June 5, 2015. (Allen Eyestone / The Palm Beach Post)
St. Mary’s Medical Center in West Palm Beach was the subject of the CNN investigation. (Allen Eyestone / The Palm Beach Post)

Locke, his attorney, told the judge CNN went so far as to manipulate the calculations to report St. Mary’s death rate as three times the national average for pediatric heart surgery programs. She said CNN ignored data from the Society of Thoracic Surgeons that found St. Mary’s death rate for infant cardiac surgeries fell within the norm.

Instead, the news network compared raw data of open and closed heart surgeries with just open heart surgeries. It also compared raw death rate figures with those adjusted for the complexity of the surgery and illness of the patient, Locke said.

The Palm Beach Post reported in several articles about troubles with CNN’s data. The network eventually posted on its website a story explaining its methodology. Florida’s Agency for Health Care Administration got into the fray, calling CNN’s reporting sensationalistic.

Friday was the first time the two sides really squared off in front of the judge since Black filed his suit in February as judge entertained argument over CNN’s motion to dismiss Black’s suit.

The cable news network told Oftedal that CNN’s reporting is protected because Black as a prominent surgeon of a major pediatric heart surgery program was a public figure.

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Dr. Michael Black and his attorney Libby Locke at a hearing Friday on his defamation against CNN. (Photo: Allen Eyestone)

The network’s attorney, Charles Tobin, also argued that the doctor couldn’t prove malice by the network.

Tobin added that Black or St. Mary’s can’t dictate the methodology of a news organization and that reporters asked the hospital for its own figures but never received them. CNN anchor Anderson Cooper is one CNN talent named by Black in the lawsuit.

Locke said St. Mary’s was under no obligation to cooperate with CNN and that the methodology used by the cable news network is not a matter for debate or interpretation. “These are statistics. This is math,” she said.

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Judge Richard Oftedal at the hearing Friday. (Photo; Allen Eyestone)

One of Tobin’s best moments on Friday was when he told Oftedal that Black claims he is not a public figure but was somehow defamed by criticism of St. Mary’s as a whole. Tobin said that was because Black was the public face, and thus a public figure.indeed The Post wrote a feature on him when the hospital started up the program.

And indeed, The Post wrote a feature on Dr. Black when the hospital started up the program.

Locke says CNN bears the burden of proving Dr. Black was essentially a public figure.

“There is no dispute Dr. Black had a pristine solid reputation before CNN defamed him, but that does not make him a public figure,” she said in court.

If Oftedal — who asked plenty of questions throughout the hearing — finds Black a public figure, the doctor will have to prove CNN had malice to defame him personally.

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Kelly Robinson at the CNN defamation hearing on Friday. (Photo: Allen Eyestone)

Also, present in the courtroom was defendant Kelly Robinson, the heart mom who was used as an unnamed source by CNN in the investigation.

Black claims she made disparaging remarks about him and was trying to drive business to Nickalus Children’s Hospital in Miami where her son had heart surgery.

Robinson’s attorney, Deanna Shullman, said her client is a minor player in the lawsuit, yet faces the same liability as a major cable news network.

She has asked the lawsuit to be dismissed because her client’s comments are protected speech.

A story about Robinson’s role in the CNN story was explored by The Post. Click here to read the story.

 

Health care refugees: Couple flees Florida after Medicaid nightmare

A Boynton Beach couple said they left Florida – a state they loved – because they could not get adequate health care for their ailing 5-year-old daughter through Medicaid.
CNN’s series on health care refugees started this week with Kim and Richard Muszynski. The couple in September packed their bags and took their ailing 5-year-old daughter, Abby, to Colorado.
Abby was born with a missing a piece of her brain and is subject to violent seizures.
Like Abby, nearly early half of all children in Florida get their health care through the state-run health insurance Medicaid. Abby ended up on Medicaid when Kim Muszynski left her job – and lost the health insurance that came with it – to care for her daughter full-time.
Abby ended up on Medicaid when Kim Muszynski left her job – and lost the health insurance that came with it — to care for her daughter full-time.
Florida Medicaid refused to pay for lifesaving medicines and initially denied payment for a wheelchair. CNN reported. Sometimes Medicaid took so long to pay some of her health care providers that they refused to treat Abby, CNN reported.
Sometimes Medicaid took so long to pay some of her health care providers that they refused to treat Abby, according to the cable news network.
The Agency for Health Care Administration, which runs Medicaid for Florida, disagreed with the CNN report. “The state has done everything in its power to support this family,” said Mallory McManus,  spokeswoman for the agency.
A federal judge ruled in a civil suit that 2015 that Florida had violated the law by underpaying doctors. The state later reached a settlement.
“Florida’s Medicaid program is currently operating at the highest level of quality in its history,” McManus said.
abruzzo
State Sen. Joseph Abruzzo
AHCA and CNN also have clashed in the past.
AHCA criticized the cable news network for its story on the pediatric heart surgery program at St. Mary’s Medical Center.
AHCA characterized the June 2015 story as “sensationalized reporting.”
St. Mary’s program closed down shortly after the story ran.
The network is currently being sued for defamation by the surgeon who established the program.
Now CNN is back in South Florida reporting on the Muszynskis.
In February, the family got word she was being kicked off Medicaid by the state of Florida until state Sen. Joseph Abruzzo interceded, CNN reported.
The couple was told by the state Abby was dropped because of a computer glitch but still the family had trouble getting coverage for her. So, they decided it was time to leave Florida.
To read the whole CNN story on the Muszynskis click here.