A divided appeals court this week 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鈥檚 Medical Center, had not met a legal requirement of showing 鈥渁ctual malice鈥� 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.
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鈥淏ecause 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鈥檚 order,鈥� the ruling, written by Judge Jeffrey Kuntz and joined by Judge Cory Ciklin, said. 鈥淲e express no opinion on the viability of Dr. Black鈥檚 underlying defamation claim.鈥�
The lawsuit centers on 2015 reports by CNN that said the St. Mary鈥檚 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鈥檚 and Black disputed the reports because they said CNN鈥檚 calculation of the death rate was not adjusted to reflect the 鈥渞isk profile of the patients and the complexity of each surgery,鈥� Wednesday鈥檚 ruling said.
Black alleged that CNN excluded such information 鈥渇rom its reporting to support a false claim that the surgical program鈥檚 mortality figures were 鈥榮hocking鈥� or 鈥榓larming,鈥� and to falsely portray him 鈥榓s a callous, incompetent, and dishonest surgeon responsible for the preventable deaths of many of his patients,鈥欌�� the ruling said. 鈥淚n doing so, Dr. Black alleged that CNN knowingly disregarded journalistic ethics to publish their 鈥榮ensational鈥� story in pursuit of financial gain and journalistic awards.鈥�
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.
鈥淒r. Black鈥檚 proffer (of evidence) focuses solely on CNN鈥檚 mortality rate analysis,鈥� Wednesday鈥檚 ruling said. 鈥淗e does not challenge CNN鈥檚 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鈥檚 significance. For these reasons, Dr. Black鈥檚 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鈥� overall message was false.鈥�
Judge Martha Warner dissented, writing that Black provided evidence that gave a 鈥渞easonable basis鈥� for being able to pursue punitive damages.
鈥淭he death rate led CNN 鈥� and its readers 鈥� to the conclusion that Dr. Black鈥檚 program was seriously deficient even though CNN鈥檚 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,鈥� Warner wrote.
In addition to CNN, Black filed the lawsuit against reporters Elizabeth Cohen and John Bonifield.
