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Opinion CNN faces lawsuit over exposé on Florida hospital

CNN headquarters in Atlanta. (David Goldman/Associated Press)

“The hospital with a serious heart problem,” read the title of the story that aired on CNN’s “Anderson Cooper 360 Degrees” last June, via reporting by senior medical correspondent Elizabeth Cohen. The target was St. Mary’s Medical Center in West Palm Beach, Fla., a 464-bed facility with about 2,400 employees.

The subject matter was explosive — children who’d died or suffered after undergoing cardiac surgery at the hospital. “We calculate that from 2011 to 2013, the death rate for open heart surgery on children at St. Mary’s Medical Center was more than three times higher than the national average,” noted Cohen in her report.

And so was the impact — the hospital voluntarily suspended its pediatric cardiac surgery program (save for emergencies); then it closed the program altogether, claiming that “inaccurate media reports” made it harder to “build sustainable volume”; the chief executive of the medical center, Davide Carbone, resigned in August. CNN had reported (online) that at least eight babies died since the program’s 2011 launch.

More impact comes now, as Dr. Michael Black, who led the program, filed a defamation suit Tuesday against CNN, Cohen, host Anderson Cooper, other CNN personnel and one of their alleged sources. “By suggesting that Dr. Black treated ‘[b]abies as sacrificial lambs’ and made ‘[a] total mess with newborn babies,’ and by claiming that Dr. Black’s surgical mortality rate was over three times the national average, the CNN Defendants have attributed to Dr. Black conduct unfit for a medical doctor or surgeon as well as conduct rising to the level of criminality,” reads the complaint against CNN, which was filed in Palm Beach County and prepared by the Florida law firm Kammerer Mariani and the Washington-area firm Clare Locke LLP, which is also handling the suit of a University of Virginia administrator against Rolling Stone over its November 2014 “Rape on Campus” story.

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Black, who previously served as chief of cardiac surgery at Stanford’s Lucile Packard Children’s Hospital, suffered “reputational and economic harm” on account of the CNN stories, argues the complaint.

The suit hinges in large part on medical arcania. Cohen’s claim that the hospital’s pediatric mortality rate for open-heart surgery was three times the national average has been the source of much dispute both before and after the story was published. More than three months before airing the investigation, CNN’s John Bonifield alerted the hospital to the network’s conclusion that the mortality rate for the program was 12.5 percent (from 2011 to 2013), whereas the national average was 3.5 percent, according to the Society of Thoracic Surgeons (STS). (The latter number was 3.3 percent in CNN’s story). In a Feb. 27, 2015, letter, Carbone responded that the CNN calculations were flat-out “inaccurate”; the network, argued Carbone, had counted “only a portion” of the heart operations performed by St. Mary’s, thereby inflating the mortality rate.

Another consideration: St. Mary’s complains that CNN was using only Black’s open-heart surgeries to calculate the hospital’s mortality rate. The national average to which that rate was compared also includes closed-heart surgeries, which are generally less risky than open-heart surgeries, claims the lawsuit. “[B]y knowingly comparing a mortality rate for Dr. Black based only on open-heart surgeries to a mortality rate based on both open-heart and closed-heart surgeries, the CNN Defendants knowingly and artificially inflated Dr. Black’s mortality rate vis-à-vis the STS national average,” reads the complaint. “A true and fair comparison would require an apples-to-apples comparison of Dr. Black’s mortality rate for both open- and closed-heart surgeries to the STS national average.”

It gets wonkier. In the complaint, CNN comes under fire for using so-called “raw mortality” figures — that is, the sheer number of patients who died. However, the STS keeps a set of “risk-adjusted” figures that tweak the numbers to reflect the difficulty and intricacy of the surgeries. As this STS explainer notes, hospitals that treat sicker patients are “expected to have higher rates of mortality, which may be due to the condition of these patients or the complexity of the procedures required to treat them, and not necessarily because of the care they received.” It’s this dynamic that the complaint targets: “The CNN Defendants intentionally and falsely suggested that Dr. Black and the Program had artificially high pediatric cardiac surgical mortality rates,” reads the lawsuit, “by comparing a non-risk-adjusted mortality rate for surgeries that Dr. Black performed to the STS national average mortality rate, which, because of the sheer volume of patients and procedures it encompasses, reflects a risk-adjusted mortality rate.”

The brawl over methodology emerged in public view in the days after CNN’s report. After the hospital and the state of Florida criticized CNN’s reporting, the network posted an explainer under the headline, “What to know about St. Mary’s children’s heart surgery mortality rates.” Transparency is at the heart of this dispute, the CNN story suggested. Noting that the hospital had claimed a 5.3 percent risk-adjusted mortality rate, the CNN piece asked how it reached that figure. “The hospital doesn’t say. Two numbers are necessary to calculate a mortality rate: How many surgeries were performed and how many patients died. St. Mary’s doesn’t give either in its response,” notes the story.

In an email to a lawyer for the owner of St. Mary’s, CNN senior vice president, legal David Vigilante framed the matter this way: “Arguing that we should use a set of figures more favorable to your client may be a basis for criticism, which CNN has been transparent about, but it does not render CNN’s reporting false nor in any way irresponsible or malicious.” “If anything it underscores how a commitment to transparency can alleviate these disagreements and allow parents to make more
informed decisions.” That sentiment comes across in the original story itself, which includes this key line: “St. Mary’s … says CNN is wrong about the program’s death rate, but refuses to provide what it considers the correct death rate.”

Not having interned at the Society of Thoracic Surgeons, the Erik Wemple Blog won’t attempt to referee this conflict over mortality statistics. Let the experts fight this one out in depositions.

The 200-page-plus complaint, however, contains other allegations worth a column inch or two. Like any adversarial TV investigative report, this one by CNN featured an ambush moment. In her June 1 story, Cohen notes that Black had refused an on-camera interview, “so we tracked down the CEO Davide Carbone to give him a chance to explain.”

At that point, the story moves to a sunny residential street. Cohen is filmed advancing on a driveway, and a man is standing at the threshold of a garage. “Hi, Mr. Carbone, it’s Elizabeth Cohen at CNN. How are you, sir?” said Cohen in the news package. “Sir, we want to know what the death rate is for your babies at the pediatric heart hospital in your program.”

As Cohen advances, a man — presumably Carbone — ducks deeper into his garage. The automatic door closes. There’s no interview.

That little drama is among the gripes listed in the defamation suit. “The CNN Defendants did not intend to obtain information for their story from Mr. Carbone when Cohen and a CNN camera crew ambushed him and his wife at their home,” notes the complaint. “Rather, the CNN Defendants intended to obtain footage for their story that would falsely portray Mr. Carbone and, by implication, St. Mary’s and Dr. Black, as unwilling to provide information about the Program.”

Ambushes work best when the ambushee is unresponsive or hostile to requests for comment. In this case, however, Carbone himself already had written Cohen a detailed, 800-word-plus letter in response to CNN’s inquiries about the hospital’s pediatric cardiac surgery program — though, clearly, it didn’t cough up key statistics sought by the network. That letter is dated two weeks before Cohen’s ambush. Maybe stay out of the guy’s driveway?

Another quirk relates to Black’s choice of defendants, which includes one Kelly Robinson. A resident of Jupiter, Fla., Robinson is identified in the complaint as a “heart mom” — a mother whose child has heart disease and underwent surgery. Robinson is a supporter of a competing heart surgeon, Dr. Redmond Burke, who successfully operated on her child. She is passionate about her activism on behalf of families, according to a profile in the Palm Beach Post. The complaint illustrates just how zealous was Robinson in pursuing Black & Co.:

On yet another occasion, Defendant Robinson improperly obtained a St. Mary’s visitor’s badge in order to gain access to St. Mary’s, where she proceeded to the pediatric intensive care unit and before being told to leave screamed to all patients and staff within earshot that “Dr. Black is a babykilling wacko!” and that they “better be watching CNN next week” before stating that she “works for CNN” and threatening that “security staff will be on television.”

Further, the complaint charges that Robinson “served as a key source for the CNN Defendants for their defamatory articles and video reports and has expressly admitted that she worked for CNN in conjunction with those articles and video reports.” In a statement last year, CNN said, “We spoke to a large number of people in reporting this story, including Kelly Robinson. She was not employed by CNN and we did not rely on anything she told us for our report.”

Bolding added to highlight a key issue for this litigation. Robinson isn’t named in Cohen’s story on St. Mary’s, meaning that it’ll take extensive legal work to tie her to any particular claim in the report. “[T]he plaintiff still will need to prove through the discovery process that the non-cited source/defendant actually was a source for the defamatory content in the article,” notes University of Florida professor Clay Calvert, whom the Erik Wemple Blog frequently consults on legal issues. There are compelling reasons, however, to sue a source. “A plaintiff can cast the reporting as a conspiracy between the source and the reporter,” says Jeffrey Pyle, a partner in the Boston-based firm Prince Lobel Tye LLP. And: “If the case goes to trial, a jury may wonder if the source is really responsible for defamatory content, why isn’t the source here? Why isn’t the source being sued?”

CNN personnel did a great deal of admirable digging in pursuit of the St. Mary’s. They used the Freedom of Information Act to procure the data underlying their mortality-rate calculation; they secured reviews from a panel of experts who’d inspected the St. Mary’s program, and encountered opposition from the hospital in their state-level records request; they got extensive on-the-record testimony from the families of children who’d had surgery at the hospital. Still they were unable to extract key figures related to the hospital’s record on pediatric cardiac surgery.

And CNN is a news organization of nearly 4,000 “news professionals.” A family seeking the same information would have far fewer news professionals to deploy.

Whatever the hurdles on the info-procurement front, CNN is responsible for casting the data that it did have in the proper context. Again, we’ll sit and watch as the experts fight that one out. The suit seeks damages to be determined at trial. A CNN spokesperson says, “We intend to fight this in the courts.  We will fight hard in defense of our reporting and we expect to prevail.”