One of the many problems faced by victims of medical malpractice in Florida is the lack of publicly available information about past physician disciplinary actions. Congress has established a federal database to record “information on medical malpractice payments and certain adverse actions related to health care practitioners.” But this database, known as the National Practitioner Data Bank (NPDB), is not available to the public. Only organizations that credential, license, or employ physicians may access the NPDB.
Defamation Lawsuit Threatens to Chill Reporting to Federal Malpractice Database
Even if the public cannot view a physician’s malpractice record on NPDB, hospitals can, and they can use the service to avoid hiring doctors who are more likely to injure patients through negligence or malpractice. Unfortunately, some physicians are trying to eliminate even this use of the NPDB by filing defamation lawsuits against hospitals that attempt to report them. And the Florida Supreme Court may soon weigh in on this issue.
Specifically, an intermediate appeals court in Daytona Beach has asked the state’s highest court to determine how long a doctor has to file a defamation claim against a hospital. The case involves a cardiologist who worked at a hospital in Apopka. In 2007, the hospital’s executive committee suspended the cardiologist’s clinical privileges after issuing “22 factual findings” related to the doctor’s practice of medicine.
As required by federal law, the hospital reported its adverse action to the NPDB. In 2014, the cardiologist sued the hospital, alleging this report “contained false and defamatory material.” As a result of the NPDB report, the cardiologist said he has suffered a “loss of employment opportunities.”
The Florida courts have yet to reach the merits of the doctor’s defamation allegations. There is the initial legal question of whether or not the cardiologist waited too long to file his lawsuit. Under Florida law, an action for “libel and slander,” which includes the cardiologist’s defamation claim here, must be brought within two years of “publication.” So, for example, if a newspaper publishes a defamatory article about you on January 1, 2015, you have until January 1, 2017, to file a libel lawsuit.
But the Florida Supreme Court has also said that “each communication of the same defamatory matter by the same defamer…is a separate and distinct publication.” This means that a separate libel claim arises each time the allegedly defamatory material is published. However, there is a further exception in Florida statutes, which provides that the statute of limitations for a defamation claim “founded upon a single publication” begins at the time of “first publication.”
In this case, the cardiologist brought his lawsuit more than two years after the “first publication” of the hospital’s report to the NPDB. To get around this, the doctor argued there was a new occurrence of defamation each time the NPDB report was “published” to a new organization requesting access. Therefore the two-year statute of limitations should reset each time.
The Florida Fifth District Court of Appeal disagreed. In a June 27 opinion, it held the first publication rule should apply, meaning the statute of limitations “begins to run when a report is issued to the NPDB; any subsequent issuance of that report to legally authorized entities does not accrue a limitations period.” But the Fifth District also acknowledged that since no other Florida court has directly addressed this issue, it has asked the Supreme Court to make a final determination.
Need Help From a Florida Medical Malpractice Lawyer?
If the Supreme Court ends up ruling in favor of the doctor, it could have a chilling effect on hospitals, as they may be reluctant to discipline and report negligent physicians in the future due to fear of litigation. This ongoing legal battle emphasizes the importance of holding doctors accountable through the medical malpractice system. If you or a family member have suffered due to a physician’s negligence, it is imperative you speak with a qualified Clearwater medical malpractice attorney as soon as possible. Contact the Law Office of Paul B. Genet, at (727) 538-8865 if you need immediate legal assistance.
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