ABC wins defamation suit; “PrimeTime Live” comments about heart doctor were opinion, not fact

From the Spring 2002 issue of The News Media & The Law, page 31.

ABC’s “PrimeTime Live” did not defame a Buffalo heart surgeon in a broadcast about the doctor’s patient-mortality rate, a New York appeals court ruled March 15.

In a 1992 broadcast, reporter Chris Wallace stated that Dr. Samuel C. Balderman “wasn’t representing where he had finished” in a study that ranked cardiac surgeons’ patient-mortality rates. Wallace also said Balderman had not been “upfront” about his ranking.

Those statements were opinion, not defamation, and ABC did not act with gross irresponsibility in broadcasting the segment, ruled the New York Supreme Court, Appellate Division, Fourth Judicial Department in Rochester.

The court’s ruling reverses a decision by the trial judge, who refused to grant ABC’s request for summary judgment. The decision of the appeals court dismisses the case.

Wallace made his comments during an on-camera interview with Dr. Bradley Truax, assistant medical director of Erie County Medical Center, where Balderman performed cardiac surgery. Before making the comments, Wallace gave the facts on which his statements were based. Thus, the average person listening to the interview would recognize Wallace’s statements as opinion, Justice Samuel L. Green wrote for a unanimous five-judge panel.

“A proffered hypothesis that is offered after a full recitation of the facts on which it is based is readily understood by the audience as conjecture,” Green wrote.

The news show was investigating how patients, surgeons and hospitals used information from a state Department of Health study that compared the quality of heart surgery at New York hospitals.

The 1990 study, popularly known as “the Scorecard,” calculated the risk-adjusted mortality rates for surgeons and hospitals by examining the number of deaths occurring during cardiac surgery and accounting for differences in patients undergoing the surgery.

Balderman’s risk-adjusted mortality rate for 1989 and 1990 was 8.48 percent, compared with the statewide average of 3.32 percent.

Two employees of “PrimeTime Live” posed as the son and daughter of a prospective patient in need of heart surgery. Using a hidden camera, they conducted an undercover interview of Balderman for a segment of the show called “Surgical Scorecards.”

During his on-camera interview of Truax, Wallace played portions of the undercover couple’s exchange with Balderman. While the tape played, a voice-over told the audience how Balderman’s mortality rate compared with the state average and that out of 112 surgeons on the list still practicing in New York, Balderman ranked 103rd.

The tape showed Balderman telling the undercover couple that he ranked “somewhere in the middle.”

Wallace commented to Truax that Balderman “just wasn’t representing where he had finished.” Truax responded, “That’s correct.”

Then Wallace asked Truax, “Do you think he was being upfront with this patient?”

Truax responded, “I would say no.”

Balderman sued, claiming the network defamed him by making false statements of fact that characterized him as deceptive, untruthful, unethical and lacking in professional skill. He also claimed that the network acted with gross irresponsibility in broadcasting the show.

The court ruled that even if Wallace’s comments were statements of fact, as opposed to opinion, his statements were not demonstrably false. Wallace’s statements were based on statistics in the state report, on ABC’s calculations derived from the state data, and on Balderman’s comment that he was “somewhere in the middle,” the ruling said.

Balderman attempted to show that his assessment of his ranking was accurate under his expert’s interpretation of the state data. The court ruled Balderman’s evidence insufficient to establish that Wallace’s comments were false, since Wallace’s characterization of the doctor’s ranking was “fully supported by a different interpretation of the DOH data.”

ABC did not act with gross irresponsibility, the court found. The network confirmed with reliable sources that the state statistics did not support Balderman’s position that he was “somewhere in the middle” of the ranking. The fact that ABC consulted other reliable sources who supported Balderman’s interpretation of the data did not persuade the court otherwise.

“Defendant’s decision to omit or downplay information provided by sources critical of the Scorecard is a matter of editorial judgment in which the courts, and juries, have no proper function,” the opinion said.

A handwritten note allegedly containing instructions from the show’s producer regarding the hidden-camera interview also did not show that the network acted with gross irresponsibility, the court said. The note included instructions such as “push people,” “goad them,” “get them to lie,” “go for the big lie” and “set them up.” (Balderman v. ABC) — MD