Ashraf v. Adventist Health System , 200 So. 3d 173 ( 2016 )

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FIFTH DISTRICT
NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
DR. SUALEH KAMAL ASHRAF,
Appellant,
v. Case No. 5D15-2415
ADVENTIST HEALTH SYSTEM/ SUNBELT, INC.,
a Florida Corporation, d/b/a FLORIDA HOSPITAL APOPKA,
Appellee.
__________________________________________________/
Opinion filed July 1, 2016
Appeal from the Circuit Court
for Seminole County,
Jessica J. Recksiedler, Judge.
Troy J. Webber and Sarah S. Hussein, of
Hussein & Webber, P.L., Jacksonville, for
Appellant.
Mason H. Grower, III, Samantha L.
Aylward, and Emily R. Katz, of Grower,
Ketcham, Rutherford, Bronson, Eide &
Telan, P.A., Orlando, for Appellee.
WALLIS, J.
Dr. Sualeh Kamal Ashraf ("Dr. Ashraf") appeals the trial court's dismissal of his
complaint for defamation against Adventist Health System/Sunbelt, Inc., d/b/a Florida
Hospital Apopka ("Appellee"). We agree that the two-year statute of limitations under the
single publication rule bars Dr. Ashraf's claim. We affirm in all respects and certify a
question of great public importance to the Florida Supreme Court.
In 2006, Dr. Ashraf began working as a physician in the cardiology department at
Florida Hospital Apopka ("Florida Hospital"). In June 2007, Florida Hospital's Medical
Executive Committee ("MEC") notified Dr. Ashraf of the suspension of his clinical
privileges. The MEC voted to continue the temporary suspension of privileges while the
Investigative Review Committee ("IRC") conducted a formal investigation. In November
2007, the IRC completed its investigation, issuing 22 factual findings and recommending
permanent revocation of Dr. Ashraf's clinical privileges. The MEC convened for a meeting
at which it adopted verbatim the IRC's findings. Dr. Ashraf disputed the accuracy of those
findings and requested review by a Fair Hearing Panel ("FHP"). The FHP upheld the IRC's
findings and forwarded its recommendation to Florida Hospital's Board of Directors for
final approval. Florida Hospital's Board of Directors approved the recommendation and
permanently revoked Dr. Ashraf's clinical privileges.
On December 17, 2008, Florida Hospital reported the revocation of Dr. Ashraf's
clinical privileges to the National Practitioner Data Bank ("NPDB"), an information
repository formed under federal law containing information regarding healthcare
practitioners and providers. Federal law requires Florida Hospital to report their adverse
actions and findings to the NPDB. The NPDB then generates a confidential report
available upon request by a select group of legally authorized entities. Florida Hospital's
report to the NPDB contained verbatim the 22 factual findings issued by the IRC.
In October 2014, Dr. Ashraf filed a two-count complaint against Appellee for
defamation and permanent injunctive relief. Dr. Ashraf alleged his NPDB report contained
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false and defamatory material, directly resulting in loss of employment opportunities as
recently as September 2014. Appellee moved to dismiss the complaint, arguing the two-
year statute of limitations under the single publication rule barred his claim. The trial court
agreed and granted Appellee's motion to dismiss.
Florida law establishes a two-year statute of limitations for actions for "libel and
slander." § 95.11(4)(g), Fla. Stat. (2014). The statute of limitations begins to run at the
time of publication, not when the plaintiff discovers the alleged defamatory material.
Wagner, Nugent, Johnson, Roth, Romano, Erikson & Kupfer, P.A. v. Flanagan, 629 So.
2d 113, 114 (Fla. 1993). "It is the general rule that each communication of the same
defamatory matter by the same defamer, whether to a new person or to the same person,
is a separate and distinct publication, for which a separate cause of action arises."
Restatement (Second) of Torts § 577A cmt. a (1977). Thus, "every repetition of a
defamatory statement is considered a publication." Doe v. Am. Online, Inc., 783 So. 2d
1010, 1017 (Fla. 2001) (citation omitted). "This general rule is referred to as the 'multiple
publication rule.'" Musto v. Bell S. Telecomms. Corp., 748 So. 2d 296, 297 (Fla. 4th DCA
1999).
An exception to the general rule, known as the single publication rule, provides
that a "cause of action for damages founded upon a single publication or exhibition or
utterance, as described in s. 770.05, shall be deemed to have accrued at the time of the
first publication or exhibition or utterance thereof in this state." § 770.07, Fla. Stat. (2014).
The single publication rule is "merely a convenient tool to express the rule that all causes
of action for widely circulated libel must be litigated in one trial, and that each [publication]
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need not be separately pleaded and provided." Daytona Beach News-Journal Corp. v.
Firstamerica Dev. Corp., 181 So. 2d 565, 568 n.1 (Fla. 3d DCA 1966) (citation omitted).
Although no Florida appellate court has addressed whether the single or multiple
publication rule applies to defamation claims stemming from NPDB reports, and other
jurisdictions have decided differently on this issue,1 we choose to follow Judge Antoon's
well-reasoned decision in Pierson v. Orlando Regional Healthcare Systems, Inc., No.
6:08-cv-466-Orl-28GJK, 2010 WL 1408391, at *1 (M.D. Fla. Apr. 6, 2010), aff'd, 451 Fed.
App'x 862 (11th Cir. 2012), cert. denied, 133 S. Ct. 940 (2013) (Mem). In Pierson, the
defendant suspended the plaintiff's emergency and trauma call privileges and reported
its findings to the NPDB in February 2004. Id. at *12. The plaintiff brought an action for
defamation, among other claims, in August 2009. Id. In determining that the statute of
limitations barred the plaintiff's defamation claim, the court distinguished Musto, 748 So.
2d 296, where the Fourth District Court held that the single publication rule does not apply
to the common law tort of credit slander. Id. The Pierson court reasoned that, unlike in
Musto, the plaintiff "knew of the contents of the Adverse Action Report at the time it was
issued to the NPDB; thus, the potential pitfall of credit report subjects not knowing of a
defamatory credit statement until the statute of limitations has run is not present." Id.
Importantly, the court also cautioned that, were it to agree with the plaintiff's interpretation,
he "could apply for employment over and over again and create a new defamation claim
based on reissuances of the NPDB report at his whim." Id. Accordingly, the Pierson court
1
See Williams v. Univ. Med. Ctr. of S. Nev., No. 2:09-cv-00554-PMP-PAL, 2010
WL 3001707, at *1 (D. Nev. July 28, 2010); Stephan v. Baylor Med. Ctr. at Garland, 20
S.W.3d 880 (Tex. App. 2000); Swafford v. Memphis Individual Practice Ass'n, No. 02A01-
9612-CV-00311, 1998 WL 281935, at *1 (Tenn. Ct. App. June 2, 1998).
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concluded that the two-year limitations period began to run when the defendant first
issued the Adverse Action report to the NPDB, thus time-barring the plaintiff's claim
brought nearly four years later. Id.
We adopt Pierson and hold that the two-year 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 new limitations period. We note that the NPDB
establishes internal procedural safeguards whereby the subject of a report can file an
exception disputing the accuracy of the report's contents, in addition to the challenge
procedures available to Dr. Ashraf during the course of Florida Hospital's investigation.
See 45 C.F.R. § 60.21 (2014). Moreover, unlike in the credit report context, where a
plaintiff may not know of the contents of their report until after the limitations period runs,
the NPDB sends the subject a copy of his or her report. See 45 C.F.R. § 60.6 (2014).
Thus, all plaintiffs will have actual knowledge of the contents of their NPDB report well
before the limitations period expires. See Pierson, 2010 WL 1408391, at *12. Based on
the foregoing, we affirm and certify the following question to the Florida Supreme Court
as one of great public importance:
DOES THE SINGLE PUBLICATION RULE BAR ANY
DEFAMATION CLAIM BASED UPON INFORMATION
REPORTED TO THE NPDB IF NOT COMMENCED WITHIN
TWO YEARS OF THE DATE OF THE REPORT?
AFFIRMED; QUESTION CERTIFIED.
LAMBERT and EDWARDS, JJ., concur.
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