ProPublica, Inc., Hearst Newspapers, LLC d/b/a The Houston Chronicle, Charles Ornstein, and Michael Hixenbaugh v. Dr. O. Howard “Bud” Frazier (No. 01-22-00281-CV; April 25, 2024) arose from an investigative report published by the Houston Chronicle alleging that Dr. Frazier, a renowned heart surgeon, had, according to the report’s title, a “secret history of research violations, conflicts of interest and poor outcomes.” Dr. Frazier sued the paper and journalists for defamation. Defendants moved to dismiss under the TCPA. The trial court denied the motion. On appeal, the Houston [1st] Court of Appeals ruled that the trial court erred in failing to consider Defendants’ arguments and evidence and reversed and remanded the case. On remand, Defendants refiled their TCPA motion. Once again, the trial court denied it, and once more Defendants appealed.

Once more, in an opinion by Justice Adams, the court of appeals reversed and this time ordered the trial court to dismiss the case. The news article in question appeared in the newspaper and on its website in May 2018. It was quite lengthy, but the gist may be described succinctly. Dr. Frazier, who at the time was Director of Cardiovascular Surgery Research at the Texas Heart Institute at Baylor St. Luke’s Center, helped to innovate a new heart pump for patients with heart failure. Based on records and interviews stretching back nearly 30 years, the article revealed four major findings: (1) Frazier and his team implanted experimental heart pumps in patients who did not meed medical criteria, which St. Luke’s reported to the federal government and for which it repaid millions of dollars in Medicare reimbursements; (2) former cardilogists at St. Luke’s believed that at times Frazier “favored experimental heart pumps over more conventional treatments” and that he “was reluctant to acknowledge when the devices led to serious complications,” including a high rate of strokes in patients who received the pump; (3) Frazier did not publicly disclose consulting fees and research grants from manufacturers of the pumps he tested, nor did he disclose stock options he received from one of the manufacturers, which he subsequently transferred to his son (the son sold the stock for a $130,000 profit); and (4) a former St. Luke’s nurse sued Frazier in 1994 for permitting a physician not licensed in Texas to treat heart failure patients in his program.

Dr. Frazier alleged that these and other allegations were defamatory because they falsely accused him of “inhumanely experimenting on patients,” “hid[ing] the harmful effects of the” pump; “let money influence his medical decisions”; and “allowed an unlicensed researcher to treat patients.” He also alleged that the article made him look like an old, incompetent surgeon, based on its finding that mortality rates from his surgeries significantly increased after he hit age 70. The publishers, in their TCPA motion to dismiss, contended that Dr. Frazier failed to meet his burden to establish by clear and specific evidence a prima facie case and that the article was substantially true.

The court zeroed in on the publisher’s “truth defense,” assuming without deciding that Dr. Frazier had established a prima facie case. The issue thus came down to whether the article created “false impressions” that Dr. Frazier violated federal research standards, committed ethical violations, did not disclose certain financial conflicts-of-interest, and was an “old and incompetent” surgeon. The standard for “substantial truth” is “whether the article, taken as a whole, [was] more damaging to Dr. Frazier’s reputation than a truthful report would have been” (citations omitted). In making that determination, the court “must determine whether the article is a ‘fair, true, and impartial account of the proceedings’ reported,” not a comparison of the “gist” of the article to the “actual facts” (citations omitted). As to the federal research violations, the court ruled that the article, which relied on a 2008 summary of the St. Luke’s board meeting at which the board determined that Dr. Frazier had implanted devices in 30 Medicare patients without documentation of medical need, resulting in Medicare overpayments (the publishers also produced the self-reporting letter St. Luke’s sent to Medicare), “substantially mirror[ed] the Board Summary and Self-Reporting Letter.” In short, “the gist of the article, that Frazier has been accused of violating federal research rules, is substantially true” (citations omitted).

Next, the court took the 1994 lawsuit and allegations of Dr. Frazier’s ethical violations. Here “the gist of the article [was] that Dr. Frazier has been accused of skirting ethical guidelines” by “knowingly allow[ing] his signature to be used on the orders of an unlicensed physician” (those orders allowed the unlicensed physician to harvest organs and treat transplant patients). The article thus presented a “fair, true, and impartial account of the proceedings reported” and “the allegedly defamatory statements, when compared against the record, are not more damaging to Dr. Frazier’s reputation than a truthful statement would have been” (citations omitted). As to the conflicts of interest allegation, the court noted that federal data showed that device manufacturers had paid Dr. Frazier $44,000 for travel, meals, and work on their behalf, but that Dr. Frazier did not disclose those payments in related research papers. It noted further that the publisher’s evidence showed that Dr. Frazier served as the chair of the medical advisory board for one manufacturer, received stock options which he transferred to his son, and the amount the son derived from exercising the options. Thus “the gist of the article [was] that Dr. Frazier failed to comply with standards for disclosure and conflicts of interest.” Again, the court found that the article’s statements were substantially true and not more damaging to Dr. Frazier’s reputation than truthful statements would have been.

Finally, Dr. Frazier asserted that the article created the impression that he was “an old and incompetent surgeon who should not have been operating on patients.” The article alleged that between 2010 and 2015, when Dr. Frazier stopped doing surgery at the age of 75, “Dr. Frazier ‘implanted long-lasting [heart pumps] in 63 Medicare patients,’” and “‘[s]ome 31 of those patients—nearly half—did not survive a year,’” a mortality rate “nearly double the 25 percent one-year mortality rate for Medicare patients who received [the pumps] from other St. Luke’s surgeons during the same period.” The gist of the article, therefore, was “that Dr. Frazier had one of the highest mortality rates in the nation during the last five years of his career as a surgeon.” Dr. Frazier argued that the publishers failed to “risk-adjust” the CMS data they used for the story, which made him look like a “doddering” surgeon with “diminished surgical skills.” However, Dr. Frazier did not offer “any evidence of what properly risk-adjusted data would have shown.” Consequently, the court once again concluded that the statements in the article were substantially true.

This case presents an excellent illustration of how the TCPA is supposed to work. The court’s careful review of the evidence reveals that the publishers and reporters did everything right and should not have been sued in the first place. Even though it took two trips to the court of appeals to force the trial court to properly apply the statute (what was up with the trial court anyway?), the outcome ultimately vindicated the TCPA’s core purpose.

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