When CNN aired a scathing report in 2015, claiming the death rate at St. Mary’s Medical Center’s pediatric cardiac surgery center was three times higher than the national average, the hospital blasted the cable news giant, calling its reporting sensational and its numbers inaccurate.
Then, over the next several years, it quietly paid $102.4 million to settle nine lawsuits filed against it by the grieving parents of children who died or were permanently disabled after being treated at the now-shuttered kid’s surgery unit.
While the settlement amounts aren’t included in the files of the nine medical malpractice cases in Palm Beach County Circuit Court, they were obtained by lawyers who successfully defended CNN in a defamation lawsuit filed against it by Dr. Michael Black, director of the troubled unit.
CNN lawyers Martin Reeder and Charles Tobin used the massive payouts to bolster their claims that not only was the CNN report accurate, but that St. Mary’s agreed to write multimillion-dollar checks rather than fight the allegations of botched surgeries.
Dallas-based Tenet Healthcare, which owns the hospital on 45th Street in West Palm Beach, didn’t return emails for comment about why it settled the cases or why some of them weren’t recorded on the website of the Florida Office of Insurance Regulation as required by state law.
The largest settlement of $38.2 million was for the ongoing care of an Okeechobee County girl, who was left partially paralyzed at 6 weeks old when a clamp, left on twice as long as recommended, cut blood flow to her spine when she was undergoing heart surgery, court records show.
There was a $12 million settlement to the parents of a 16-day-old infant who languished for hours before dying after a 10-hour surgery to repair her heart. The same amount was paid to the parents of a now 9-year-old Palm Beach County girl who has required around-the-clock care for developmental disabilities and other infirmities she suffered since undergoing heart surgery when she was 18 days old.
The other settlements ranged from $3.5 million to $8.9 million.
Misgivings about the program intensified after a team of independent pediatric heart surgeons reviewed its operation and warned it didn’t have the expertise to perform surgery on infants under 6 months old or those with complex heart conditions.
Later, it was revealed that Black wasn’t a U.S. board-certified cardiovascular surgeon, a requirement under state law for hospitals operating such specialized and high-risk programs. Black's attorneys countered that he was certified by Canadian equivalents of the American board and state officials had signed off on it.
St. Mary’s closed the unit in August 2015, two months after CNN detailed the ignored warnings and the deaths of six of the unit’s 48 young patients from 2011 until 2013. It pointed out that the program’s 12.5% death rate was three times higher than the national average of 3.3% as reported by The Society of Thoracic Surgeons. Before the unit was folded, another three children died.
Even after the unit was dismantled, St. Mary’s continued to keep Black on the payroll, CNN lawyers said in court documents. While Black no longer performed surgeries, he continued to collect his $800,000 annual salary until August 2018, they said.
And, the costs continue to mount.
Black’s defamation suit, initially filed against CNN and reporter Elizabeth Cohen, producer John Bonifield, digital editor Dana Ford and host Anderson Cooper, was thrown out in November. Black has appealed.
He is also asking the Florida Supreme Court to overturn a previous decision that barred him from seeking punitive damages against CNN.
All of his legal fees are being paid by Tenet, Reeder and Tobin said in court documents.
Last week, Black’s attorneys were back in Palm Beach County Circuit Court, trying to persuade Senior Judge Richard Oftedal not to force Black to pay $320,000 in court costs CNN incurred in an appeal.
While the amount pales compared to the money Tenet has already shelled out, Virginia lawyer Joseph Oliveri argued vigorously, calling the costs “wildly excessive” and premature. Oftedal should delay a decision until Black’s appeals run out, he wrote.
Oftedal showed no interest in waiting, but agreed to hold another hearing in April so attorneys can flesh out their arguments.
Like the 4th District Court of Appeal, which threw out Black’s request to seek punitive damages against CNN, Oftedal ruled Nov. 27 that there was nothing defamatory about CNN’s report.
Black unsuccessfully argued that the news outlet should have used mortality numbers adjusted for risk. Oftedal called the claim “disingenuous,” pointing out that St. Mary’s and Tenet repeatedly refused CNN’s requests for the adjusted numbers.
“We believe that we have provided you sufficient information about our program and trust that you can complete your story with the information we have already provided,” a hospital spokesperson wrote CNN reporters in April 2015, again rejecting their request for adjusted numbers and cutting off further communication.
Aside from St. Mary’s stone-walling, Oftedal said there is disagreement among medical experts about which numbers — the raw numbers or those that are risk-adjusted — are more meaningful. Further, CNN quoted then-hospital CEO Davide Carbone criticizing its use of raw numbers. “(It) could potentially lead to providing misleading information to consumers,” he said.
In any case, Oftedal ruled, Black had not been defamed.
“The overall picture painted by CNN for its viewers and readers depicted a program in crisis, besieged by parents and critics alike, all of whom expressed serious concerns regarding the competency and qualifications of Dr. Black and for a program that ignored repeated warnings and alarm bells calling for a cessation of these highly complex pediatric open heart surgeries,” he wrote.
His conclusion: “Because CNN’s reporting as a whole was substantially true, Dr. Black has not raised a triable issue of material falsity.”
Jane Musgrave is a contributor to Stet News Palm Beach.
This story was originally published by Stet Palm Beach, a WLRN News partner.
