CNN shielded from punitive damages in doctor lawsuit

By Jim Saunders
News Service of Florida

A divided appeals court blocked a physician from seeking punitive damages in a lawsuit against CNN over reports about deaths of children in an open-heart surgery program at a Palm Beach County hospital.

A panel of the 4th District Court of Appeal said Michael Black, the former head of the pediatric open-heart surgery program at St. Mary’s Medical Center, had not met a legal requirement of showing “actual malice” to pursue punitive damages in a defamation lawsuit he filed against CNN and two reporters.

The 2-1 ruling does not end the underlying defamation lawsuit but prevents potentially hefty punitive damages. It overturned a decision by a circuit judge that would have allowed Black to revise the lawsuit to seek punitive damages.

“Because we conclude Dr. Black failed to support his claim for punitive damages with evidence providing a reasonable basis to conclude that CNN published the reports with actual malice, we reverse the circuit court’s order,” the ruling, written by Judge Jeffrey Kuntz and joined by Judge Cory Ciklin, said. “We express no opinion on the viability of Dr. Black’s underlying defamation claim.”

The lawsuit centers on 2015 reports by CNN that said the St. Mary’s pediatric open-heart surgery program had a death rate from 2011 to 2013 that was more than three times the national average. The rate was calculated by dividing the number of deaths by the number of surgeries.

St. Mary’s and Black disputed the reports because they said CNN’s calculation of the death rate was not adjusted to reflect the “risk profile of the patients and the complexity of each surgery,” last Wednesday’s ruling said.

Black alleged that CNN excluded such information “from its reporting to support a false claim that the surgical program’s mortality figures were ‘shocking’ or ‘alarming,’ and to falsely portray him ‘as a callous, incompetent, and dishonest surgeon responsible for the preventable deaths of many of his patients,’ ” the ruling said. “In doing so, Dr. Black alleged that CNN knowingly disregarded journalistic ethics to publish their ‘sensational’ story in pursuit of financial gain and journalistic awards.”

But the appeals-court majority pointed to a 1974 U.S. Supreme Court decision that said actual malice must be shown for plaintiffs to receive punitive damages in defamation lawsuits against media defendants.

“Dr. Black’s proffer (of evidence) focuses solely on CNN’s mortality rate analysis,” Wednesday’s ruling said. “He does not challenge CNN’s reliance on any other source in its reporting. And even limited to the use of the raw mortality rate, at most, CNN knew experts disagreed about the rate’s significance. For these reasons, Dr. Black’s proffer does not reflect facts from which a fact finder could find that CNN had published its reports with actual malice or had entertained serious doubt that its reports’ overall message was false.”

Judge Martha Warner dissented, writing that Black provided evidence that gave a “reasonable basis” for being able to pursue punitive damages.

“The death rate led CNN — and its readers — to the conclusion that Dr. Black’s program was seriously deficient even though CNN’s reporting was based on the raw data death rate, which CNN knew, based upon its prior reporting and consultation with experts, was misleading and inappropriate,” Warner wrote.

In addition to CNN, Black filed the lawsuit against reporters Elizabeth Cohen and John Bonifield.