Florida Medical Center, Inc. v. New York Post Co., Inc.

• Decision Date: 12 September 1990
• Docket Number: No. 88-3309,88-3309
• Citation: 568 So.2d 454
• Parties: 15 Fla. L. Weekly D2286, 18 Media L. Rep. 1224 FLORIDA MEDICAL CENTER, INC., d/b/a Florida Medical Center, a Florida corporation, Appellant, v. NEW YORK POST CO., INC., and Maxwell Newton, Appellees.
• Court: Florida District Court of Appeals

Page 454

568 So.2d 454

15 Fla. L. Weekly D2286, 18 Media L. Rep. 1224

FLORIDA MEDICAL CENTER, INC., d/b/a Florida Medical Center, a Florida corporation, Appellant, v. NEW YORK POST CO., INC., and Maxwell Newton, Appellees.

No. 88-3309.

District Court of Appeal of Florida,

Fourth District.

Sept. 12, 1990.

Rehearing and Rehearing En Banc Denied Nov. 9, 1990.

Joel S. Berman and Diane Marger Moore of Sherr, Tiballi, Fayne & Schneider, Fort Lauderdale, for appellant.

Robert L. Shevin of Stroock & Stroock & Lavan, Miami, for appellees.

WARNER, Judge.

This is an appeal from an order dismissing with prejudice appellant's action for libel against appellees regarding the publication in the New York Post of an article concerning appellant. The issue presented is whether the article consists of actionable libel or is opinion protected by the First Amendment. Taking the well-pleaded allegations of the complaint as true for the purposes of ruling upon a motion to dismiss, we hold that the complaint stated a cause of action and reverse the order of the trial court.

On July 12, 1988, the appellee, New York Post Co., Inc., published a column written by appellee, Maxwell Newton. The column, titled "Patients: A Necessary Evil", appeared in the business section of the Post, a newspaper with a national circulation. It appeared on the same page as business news articles and some general stock market quotations from the previous day. The column focused on the writer's conclusions that the hospital administration's purpose was to "rob" insurance companies through their charges for substandard service to patients. At the end Appellee Newton identified Appellant by name as the hospital to which he referred in the article, which is hereinafter produced:

I recently had another experience with a major surgery case (not my own) in a Florida hospital.

I would conclude that the priorities for hospital administration produced by the insurance coverage system have become distorted.

The way the system works is for the doctors and the hospital administration to conspire, overtly, or by inference, to rob the insurance company. The patient does not necessarily benefit.

The principal safety valve is the personal idealism of individual doctors or of individual nurses. The system itself is inherently biased against the individual.

The way it works is there is no barrier from the working of the system itself to the number of tests, procedures or medication provided.

There is no limit here.

Nurses wander into wards taking tests on a routine basis.

Patients who are alert are able to advise nurses that certain tests have already been done; that the patient is leaving the hospital and does not require another blood test of the sort that was taken before surgery.

Intensive care is a major profit center. Here the cost can be $3,000 a day.

So there is an incentive for the hospital administration to leave patients in intensive care for another day, wherever possible.

Disputes among nurses are frequent, with many protestations that individual nurses are being asked to "look after" more than their share of patients.

Something that truly stunned me was and is the incidence of gross obesity among the nursing staff.

On matters where there is no immediate profit return from insurance standards are very low. I refer to routine cleaning, quality of bed sheets, size of beds, size of rooms, cleaning of wards (a pervasive smell of urine is evident in many), quality of foods (a very high content of saturated fat) and minimal provision of salads and fresh vegetables.

The profit priorities are evident in the very poor quality of the facilities in public rooms, where dirt and worn out furniture is widely in evidence.

There is a pervasive use of Asian, Latin and black labor in the hospital. Such labor is not necessarily inferior in performance, but one has the clear impression the hospital administration is cutting many corners in the quality of nursing staff and other labor provided.

This is in effect a "cost plus" system for all items that are recoverable from the insurance carrier and a "service minus" system for all items that do not yield high profit returns from the carrier.

"Full-line forcing" is another profit center. Patients are obliged to buy bed mattresses, pans, jugs, and other sundry items from the hospital. This is a requirement. It goes to the insurance carrier's bill.

The greatest attention is paid to the admitting process. Here the procedure can and does take up to 45 minutes, as the hospital nails down every item of the potential patient's coverage.

No doubt it is a shocking experience to come into contact with the United States hospital system.

It is a system driven by a wild profit priority that really does not [respond] to the welfare of the patient.

The patient who is the customer, has little or no say in what happens to him and is not the focus of the profit process.

The patient is a means to an end--the robbing of the insurance carrier.

So, in a very profound sense, the patient is a necessary evil, the key to the insurance carrier's pocket.

The hospital I refer to is the Florida Medical Center Hospital, Oakland Park Blvd., Fort Lauderdale.

After failing to obtain a retraction because the statements contained therein were false and defamatory, appellant filed suit for libel alleging that the statements made were motivated by actual malice in that Defendants knew or reasonably should have known that the article and the factual statements contained therein concerning plaintiff were false and untrue.

The dispute in this case comes down to whether the statements contained in the article are protected opinion or actionable statements of fact. In Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974), the Supreme Court stated:

Under the First Amendment there is no such thing as a false idea. However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but on the competition of other ideas. But there is no constitutional value in false statements of fact. Neither the intentional lie nor the careless error materially advances society's interest in "uninhibited, robust, and wide-open" debate on public issues. New York Times Co. v. Sullivan, 376 U.S., at 270 [84 S.Ct. 710 at 721, 11 L.Ed.2d 686 (1964) ]. They belong to that category of utterances which "are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality." Chaplinsky v. New Hampshire, 315 U.S. 568, 572 [62 S.Ct. 766, 769, 86 L.Ed. 1031] (1942).

Id., 418 U.S. at 339-40, 94 S.Ct. at 3007 (footnote omitted). This passage has been very recently re-addressed by the Supreme Court in Milkovich v. Lorain Journal Co., 497 U.S. 1, 110 S.Ct. 2695, 111 L.Ed.2d 1 (1990). In that case the court stated:

Read in context, though, the fair meaning of the passage is to equate the word "opinion" in the second sentence with the word "idea" in the first sentence. Under this view, the language was merely a reiteration of Justice Holmes' classic "marketplace of ideas" concept. See Abrams v. United States, 250 U.S. 616, 630 [40 S.Ct. 17, 63 L.Ed. 1173] (1919) (Holmes, J., dissenting) ("(T)he ultimate good desired is better reached by free trade in ideas ... the best test of truth is the power of the thought to get itself accepted in the competition of the market"). Thus we do not think this passage from Gertz was intended to create a wholesale defamation exemption for anything that might be labeled "opinion." See Cianci [v. New Times Publishing Co.], supra, [639 F.2d 54, 61 (CA 2 1980) ], at 62, n. 10 (The "marketplace of ideas" origin of this passage "points strongly to the view that the 'opinions' held to be constitutionally protected were the sort of thing that could be corrected by discussion"). Not only would such an interpretation be contrary to the tenor and context of the passage, but it would also ignore the fact that expressions of "opinion" may often imply an assertion of objective fact. If a speaker says, "In my opinion John Jones is a liar," he implies a knowledge of facts which lead to the conclusion that Jones told an untruth. Even if the speaker states the facts upon which he bases his opinion, if those facts are either incorrect or incomplete or if his assessment of them is erroneous, the statement may still imply a false assertion of fact. Simply couching such statements in terms of opinion does not dispel those implications; and the statement, "In my opinion Jones is a liar," can cause as much damage to reputation as the statement, "Jones is a liar." As Judge Friendly aptly stated: "[It] would be destructive of the law of libel if a writer could escape liability for accusations of [defamatory conduct] simply by using, explicitly or implicitly, the words 'I think.' " See Cianci, supra, at 64. It is worthy to note that at common law, even the privilege of fair comment did not extend to "a false statement of fact, whether it was expressly stated or implied from an expression of opinion." Restatement (Second) of Torts, supra, § 566 Comment a.

Milkovich, 110 S.Ct. at 2705-06.

The distinction between fact and non-actionable opinion is a question of law to be determined by the court and not an issue for the jury. Zambrano v. Devanesan, 484 So.2d 603 (Fla. 4th DCA 1986); From v. Tallahassee Democrat, Inc., 400 So.2d 52 (Fla. 1st DCA 1981), rev. denied, 412 So.2d 465 (Fla.1982). See also Milkovich which states:

This Court has also determined "that in cases raising First Amendment issues ... an appellate court has an obligation to 'make an independent examination of the whole record' in order to make sure that 'the judgment does not constitute a forbidden intrusion on the field of free expression.' "

Milkovich, 110 S.Ct. at 2705. Courts have made varying attempts to...