Message
×
loading..

Pro Publica, Inc. and Charles Ornstein and Hearst Newspaper, LLC D/B/A the Houston Chronicle and Mike Hixenbaugh v. Dr. O. Howard Frazier ( 2024 )


Menu:
  • Opinion issued April 25, 2024
    In The
    Court of Appeals
    For The
    First District of Texas
    ————————————
    NO. 01-22-00281-CV
    ———————————
    PROPUBLICA, INC., HEARST NEWSPAPERS, LLC D/B/A THE
    HOUSTON CHRONICLE, CHARLES ORNSTEIN, AND MICHAEL
    HIXENBAUGH, Appellants
    V.
    DR. O. HOWARD “BUD” FRAZIER, Appellee
    On Appeal from the 234th District Court
    Harris County, Texas
    Trial Court Case No. 2018-45639
    MEMORANDUM OPINION
    In this interlocutory appeal, four media defendants bring their second
    challenge to the trial court’s denial of their motion to dismiss, under the Texas
    Citizens Participation Act (“TCPA”), the defamation claim against them.1
    Dr. O. Howard “Bud” Frazier is considered one of the world’s leading
    heart-transplant surgeons and a pioneer in the development of the Left Ventricular
    Assist Device (“LVAD”), a surgically implanted medical device that assists a
    patient’s heart with circulating blood when it can no longer do so on its own.
    In 2018, ProPublica, Inc. and its journalist Charles Ornstein, along with Hearst
    Newspapers, LLC, doing business as The Houston Chronicle, and its journalist
    Michael Hixenbaugh (collectively, “the Publishers”), jointly published an article
    about Dr. Frazier’s work, titled “A Pioneering Heart Surgeon’s Secret History of
    Research Violations, Conflicts of Interest and Poor Outcomes.”
    Dr. Frazier sued the Publishers for defamation, asserting that the article
    constituted “a vicious and utterly ill-founded libel” that “reduced his life-saving
    accomplishments to no more than a quest for personal glory at the expense of his
    patients’ health.”
    1
    Because this case was filed prior to the effective date of the 2019 amendments to
    the TCPA, the prior version of the statute governs this appeal. See Act of May 17,
    2019, 86th Leg., R.S., ch. 378, 
    2019 Tex. Gen. Laws 684
    ; see also 
    id.
     at §§ 11–12,
    2019 Tex. Gen. Laws at 687. All references in this opinion to Texas Civil Practice
    and Remedies Code Chapter 27 are to the former version of the statute.
    2
    The Publishers moved to dismiss Dr. Frazier’s suit under the TCPA, and the
    trial court denied their motion.
    The Publishers appealed. Concluding that the trial court erred in refusing to
    consider the Publishers’ arguments and evidence in support of their defenses, we
    reversed and remanded for further proceedings. See ProPublica, Inc. v. Frazier, No.
    01-19-00009-CV, 
    2020 WL 370563
    , at *10 (Tex. App.—Houston [1st Dist.] Jan.
    23, 2020, pet. denied) (mem. op.).
    On remand, the Publishers’ TCPA motion to dismiss was again denied.
    The Publishers once again appeal. In their sole issue, the Publishers contend
    that the trial court erred in denying their motion to dismiss the suit because Dr.
    Frazier did not meet his burden under the TCPA to establish the elements of his
    defamation claim and because the Publishers established their defenses.
    We reverse and remand.
    Background
    At the time of the events, Dr. Frazier was the Director of Cardiovascular
    Surgery Research at the Texas Heart Institute (“THI”) at St. Luke’s Episcopal
    Hospital (now, Baylor St. Luke’s Medical Center).
    In May 2018, as part of a series on the heart transplant program at THI,
    ProPublica and the Houston Chronicle jointly published a lengthy article on their
    websites. And a print version of the article appeared in the Houston Chronicle.
    3
    The print version of the article began: “Things . . . I just couldn’t imagine,”
    followed by the title: “Pioneering Heart Surgeon’s Secret History of Research
    Violations, Conflicts of Interest and Poor Outcomes.” The online versions contained
    only the title. After prominently displaying Dr. Frazier’s photograph, the article
    opens:
    Over decades, Bud Frazier has played a leading role in the development
    of mechanical heart pumps and an artificial heart. Out of public view,
    he’s been accused of putting his quest to make history ahead of the
    needs of some patients.
    There’s a story Bud Frazier tells often. It was around 1966, and Frazier,
    now one of the world’s most celebrated heart surgeons, was a medical
    student at Baylor College of Medicine.
    An Italian teenager had come to Houston for an aortic valve
    replacement, but at some point during the surgery, the teen’s heart
    stopped. Doctors told Frazier to reach in and start pumping the failed
    organ by hand.
    As he did so, the teen lifted a hand to Frazier’s face, and in that moment,
    just before the patient died, he says he realized his life’s calling.
    “As long as I was massaging that kid’s heart, he would wake up,”
    Frazier, now 78, said last year. “I thought then, and I’ve often returned
    to this: If my hand can keep this kid alive, why couldn’t we make a
    device to do the same?”
    In the five decades since, Dr. O.H. “Bud” Frazier has obsessively
    pursued that goal, contributing to many breakthroughs in the long and
    unfinished effort to develop a permanent mechanical replacement for
    the human heart. Today, devices he tested at Baylor St. Luke’s Medical
    Center and its research partner, the Texas Heart Institute, are credited
    with extending the lives of thousands of people worldwide each year.
    But out of public view, Frazier has been accused of violating federal
    research rules and skirting ethical guidelines, putting his quest to make
    medical history ahead of the needs of some patients, an investigation
    by ProPublica and the Houston Chronicle has found. Reporters
    4
    reviewed internal hospital reports, federal court filings, financial
    disclosures and government documents.
    The article then outlines four key points it intends to present from its
    examination of these records and interviews with former St. Luke’s physicians:
    ▪ Frazier and his team implanted experimental heart pumps in patients
    who did not meet medical criteria to be included in clinical trials,
    according to a hospital investigation a decade ago. The findings,
    which have never been disclosed publicly, prompted St. Luke’s to
    report serious research violations to the federal government and
    repay millions of dollars to Medicare.
    ▪ A former top St. Luke’s cardiologist said he believes that Frazier
    favored experimental heart pumps over more proven treatments and
    that Frazier was reluctant to acknowledge when the devices led to
    serious complications. Two other doctors made similar
    observations. In one instance, one of them said Frazier discouraged
    publication of research that found a high rate of strokes in the first
    group of patients implanted with a pump he championed.
    ▪ Frazier has often failed to publicly disclose consulting fees and
    research grants—and in one case, stock options he received and later
    transferred to his son—from companies that made the pumps he
    tested. Most medical journals require such disclosure so that other
    scientists and the public can judge whether personal interests may
    have influenced research findings.
    ▪ And a former St. Luke’s nurse alleged that Frazier allowed a
    researcher who was not licensed to practice medicine in Texas to
    treat heart failure patients in his program. Her 1994 lawsuit, which
    was backed by patient records, testimony and secret recordings of
    hospital employees, revealed that Frazier’s signature stamp was
    sometimes used to authorize the researcher’s improper medical
    orders.
    The article presents commentary from Dr. Frazier based on his interview with
    the journalists and subsequent written responses.
    5
    The article notes that St. Luke’s officials hailed Dr. Frazier as a “great surgeon
    and a pioneer.” And it presents commentary from Dr. Frazier’s supporters—who
    noted that he followed the example of the pioneering cardiac surgeons under whom
    he trained. And, like his mentors, Dr. Frazier was “willing to try promising but
    unproven medical devices to help desperate patients”—and “[i]f he broke
    rules, . . . it was to give dying people a shot at survival, a mission that consumed his
    life.”
    The article then discusses the opinions of Dr. Frank Smart, THI’s “top
    transplant cardiologist between 2003 and 2006,” who stated that he “admired
    Frazier’s commitment to developing lifesaving heart pumps, but he believed it led
    him to surgically implant the devices into some patients who were not yet sick
    enough to justify what was, at the time, an experimental treatment.”
    The article shifts focus to a lawsuit filed in 1994 in a United States District
    Court in Houston by former St. Luke’s nurse Joyce Riley. Riley “alleged” that the
    hospital had “fraudulently billed Medicare for unnecessary medical treatments.”
    The “lawsuit alleged” that an “unlicensed physician had been illegally treat[ing]
    heart failure patients”; that the hospital and Dr. Frazier had “participated in a scheme
    to unnecessarily admit patients in order to move them higher on the national heart
    transplant waiting list”; and that Dr. Frazier “knew of, directed, and personally
    participated in the fraudulent conduct and false claims described.”
    6
    The article then returns to Dr. Smart, who is quoted as saying that he witnessed
    things “that I just couldn’t imagine”—the apparent source of the title of the article
    (print version). Dr. Smart “believed that the program, under Frazier’s guidance, was
    putting LVAD research ahead of what was best for patients.” Smart “recalled a
    troubling pattern”:
    A patient would come to St. Luke’s with symptoms of heart failure.
    Smart or another cardiologist would make recommendations for
    treatment, such as prescribing drugs used to improve heart function, a
    common first step in attempting to control the disease and delay the
    need for a transplant. But soon after, before that initial therapy had time
    to work, the patient would be told he or she had days or weeks to live
    and then whisked off for an LVAD.
    The article discusses 2005 data that it attributes to St. Luke’s: “more than half
    of the 34 patients who received heart assist devices at St. Luke’s died without leaving
    the hospital,” which it noted was slightly higher than the national average. A series
    of statements and beliefs by Smart follow.
    The article then presents Dr. Frazier’s side, stating that he denied implanting
    LVADs in patients who did not require them and that all patients were evaluated
    extensively to assess the risks and benefits of the procedure “and were presented to
    a multi-disciplinary review board and had to be approved before they could be
    electively implanted.” He said that patients who needed transplants received them
    when suitable donor hearts became available. “If the patients could [be] treated
    medically the cardiologist would never refer them to our service.”
    7
    The article discusses in a positive light the FDA’s approval of the “HeartMate
    II” LVAD for use as a permanent treatment.
    The article then presents findings detailed in a 2008 special report to members
    of the St. Luke’s board of directors (“Board Summary”). The executives concluded
    that Dr. Frazier and his team had implanted experimental implant devices in 30
    patients who were enrolled in government health plans and for whom the medical
    need for the devices and compliance with trial parameters “could not be
    documented.” St. Luke’s and THI officials reported (“Self-Reporting Letter”) the
    violations to the federal government, pledged a host of reforms, and “planned to give
    back between $3.4 million and $5.4 million in payments that Medicare had made on
    behalf of patients who received unjustified surgical treatments.”
    This discussion is followed by commentary from Dr. Frazier, who denied that
    patients had received LVADs without medical justification. His attorney, David
    Berg, said that the hospital based its findings on a “deeply flawed” two-day review
    by a health-care consulting firm known as the Anson Group. Berg said the Anson
    Group, which did not interview Frazier, inappropriately faulted him and his team for
    implanting LVADs in mortally ill patients who qualified for humanitarian
    exemptions to the research protocols.
    The article also recites that other THI cardiologists were “concerned” about
    troubling side effects they had observed in some patients who had received the
    8
    LVAD device. Namely, “[a]bout a quarter of the first 71 patients implanted with the
    LVAD at St. Luke’s had suffered strokes.” There was disagreement amongst the
    doctors as to whether the findings should be reported. THI heart surgeon Dr. Billy
    Cohn stated that, in hindsight, the team “probably should have” published the stroke
    findings along with their solution. Commentary by Dr. Frazier then follows.
    The article again shifts focus, turning to discussion that Dr. Frazier had failed
    to fully disclose potential conflicts of interest. It states that a 2008 report to the St.
    Luke’s board noted Dr. Frazier’s “failure to accurately complete the conflict of
    interest form.” In addition, Dr. Frazier served as the chairman of the medical
    advisory board for HeartWare International and had been awarded certain stock
    options, according to SEC filings.
    Frazier said that he held the stock options until the next year, when he
    transferred them to his son. And Frazier’s attorney presented financial documents
    showing that the son exercised the options and collected proceeds totaling $130,813.
    But, “Frazier disclosed no conflicts.” The article quotes Dr. Frazier as stating: “It
    never occurred to me that [my son’s] having owned and sold the options was a
    conflict.” The article also mentions that, after reporters raised questions about Dr.
    Frazier’s omissions in two studies, a spokesperson for the New England Journal of
    Medicine (“NEJM”) stated that Dr. Frazier had agreed to submit revised disclosure
    forms.
    9
    Next, the article continues with a discussion of Dr. Frazier’s work. It notes
    that Dr. Frazier, who turned 70 in 2010, had continued to operate on patients and
    that his “LVAD outcomes lagged far behind those of his peers, Medicare data
    shows.” Namely, “[f]rom 2010–15, Frazier implanted long-lasting [LVADs] in 63
    Medicare patients,” and “[s]ome 31 of those patients—nearly half—did not survive
    a year, one of the highest mortality rates in the nation.” And, “[t]hat was nearly
    double the 25 percent one-year mortality rate for Medicare patients who received
    LVADs from other St. Luke’s surgeons during the same period; the national rate for
    Medicare was 28 percent.”
    Finally, the article closes with an extensive discussion from Dr. Frazier about
    his work, presenting his side of the issues raised in the article.
    The online versions of the article contained links to many of its authors’
    sources, including:
    (1)    The Board Summary,
    (2)    The Self-Reporting Letter,
    (3)    The Lawsuit,
    (4)    Statements by Frazier’s Former Colleagues,
    (5)    Evidence Regarding Failure to Disclose Conflicts, and
    (6)    Medicare Data Regarding Dr. Frazier’s High Mortality Rate.
    Simultaneously with the article’s publication, a companion report was
    published explaining the methodology used in analyzing the Medicare outcomes
    discussed in the article.
    10
    On July 9, 2018, Dr. Frazier sued the Publishers for defamation,2 pointing to
    “four specific accusations”:
    ▪ “Dr. Frazier inhumanely experimented on patients and violated the law.”
    ▪ “Dr. Frazier hid the harmful effects of the LVAD.”
    ▪ “Dr. Frazier was bought off and let money influence his medical
    decisions.”
    ▪ “Dr. Frazier allowed a researcher, who was an unlicensed doctor, to treat
    patients.”
    Dr. Frazier alleged that the Publishers’ “statements and publications as a
    whole and each of their statements explicitly and through their implications and
    impressions are false and defamatory.”
    He further alleged that the article “failed to ‘risk-adjust’ raw Medicare
    mortality data for the health risks of [his] mortally ill patients”; “St. Luke’s decision
    to reimburse Medicare was based on the deeply flawed [Board] Summary”; and the
    article “omitted material facts to create a false impression that Dr. Frazier could be
    ‘bought off’ and valued money and medical history over saving lives.”
    Dr. Frazier also alleged that the article “relied on unreliable sources” and
    “omitted material facts that are fatal to their conclusions drawn from the [Board]
    Summary, the Anson Report, and Dr. Smart’s accusations of research violations
    2
    On September 10, 2020, Dr. Frazier non-suited his claim for intentional infliction
    of emotional distress against all defendants.
    11
    regarding the LVAD.”        He additionally asserted that the Publishers’ conduct
    constituted defamation per se.
    The Publishers filed a motion to dismiss the suit under the TCPA. They
    alleged that Dr. Frazier could not meet his prima facie burden to establish material
    falsity or the requisite degree of fault, i.e., actual malice. They also asserted (1) the
    defense of substantial truth; (2) fair report and fair comment privileges; and (3) that
    certain statements constituted non-actionable or protected opinions.
    During a discovery hearing, the Publishers stated on the record:
    Defendants stipulate that for the purposes of the anti-SLAPP motion,
    and the appeal of the anti-SLAPP motion, that plaintiffs do not have to
    establish clear and specific evidence of actual malice, because
    defendants are waiving the actual malice argument for this proceeding.
    The trial court subsequently set a hearing on the Publishers’ TCPA motion to
    dismiss. Before the hearing, the Publishers moved to strike several of Dr. Frazier’s
    exhibits, including a report by Dr. Frazier’s expert, Shannon LaBove.               The
    Publishers argued that LaBove was asked “to evaluate whether an ordinary reader
    would believe the false impressions of Dr. Frazier created by the May 2018 article.”
    And LaBove’s report was based, in part, on a survey of 12 people who “purport[ed]
    to interpret the meaning of the article.”        They argued that LaBove’s report
    constituted improper evidence because it purported to determine what a
    “hypothetical, objectively reasonable reader” would believe based on the article,
    when such a determination is “a quintessentially judicial test.” The trial court denied
    12
    the Publishers’ motion to strike the LaBove report, stating that “I will give it the
    weight it deserves.”
    After the hearing, the trial court denied the Publishers’ TCPA motion to
    dismiss. In its findings of fact and conclusions of law, the trial court found that Dr.
    Frazier met his burden to show clear and specific evidence to establish a prima facie
    claim for defamation. It concluded that the Publishers “cannot raise the ‘substantial
    truth’ defense at this stage of the proceedings as a matter of law.”
    In the first appeal to our Court, we held that the trial court erred by not
    considering the Publishers’ defenses. We reversed the trial court’s order denying
    the Publishers’ motion to dismiss and remanded for further proceedings. We noted
    that the trial court could “revisit its evidentiary rulings on remand should it decide
    to do so.”
    Subsequently, and without conducting further proceedings, the trial court
    again denied the Publishers’ TCPA motion to dismiss.3 The trial court found that
    the article created five false impressions: (1) and (2) that Dr. Frazier had federal
    research and ethical violations, (3) that he hid research showing an increased rate of
    stroke in LVAD patients, (4) that he had conflicts of interest, and (5) that he was “an
    3
    Because the trial court did not hold a hearing after remand and the Publishers filed
    their notices of appeal within twenty days after the trial court signed a written order
    denying the TCPA motion, this court’s jurisdiction over the instant interlocutory
    appeal was invoked. See KHOU-TV, Inc. v. Status Lounge Inc., 
    639 S.W.3d 752
    ,
    757 (Tex. App.—Houston [14th Dist.] 2021, no pet.).
    13
    old and incompetent surgeon who should not have been operating in his seventies.”
    The trial court concluded that Dr. Frazier met his burden to show clear and specific
    evidence to establish a prima facie claim for defamation and that the Publishers did
    not meet their burden to establish any of their defenses. This second appeal ensued.
    TCPA Motion to Dismiss
    In their sole issue, the Publishers contend that the trial court erred in denying
    their TCPA motion to dismiss because (1) Dr. Frazier failed to meet his burden to
    establish a prima facie case of defamation, (2) they established their defenses, and
    (3) the LaBove report that the trial court relied on is legally irrelevant and not
    reliable. Because the Publishers’ second argument is dispositive, we address it first.
    Standard of Review
    The purpose of the TCPA is “to encourage and safeguard the constitutional
    rights of persons to petition, speak freely, associate freely, and otherwise participate
    in government to the maximum extent permitted by law and, at the same time, [to]
    protect the rights of a person to file meritorious lawsuits for demonstrable injury.”
    TEX. CIV. PRAC. & REM. CODE § 27.002. It “protects citizens . . . from retaliatory
    lawsuits that seek to intimidate or silence them” from exercising their First
    Amendment freedoms and provides a procedure for the expedited dismissal of such
    suits. In re Lipsky, 
    460 S.W.3d 579
    , 584 (Tex. 2015). The TCPA is intended to
    identify and summarily dispose of lawsuits “designed only to chill First Amendment
    14
    rights, not to dismiss meritorious lawsuits.” Id. at 589. It is to be “construed liberally
    to effectuate its purpose and intent fully.” TEX. CIV. PRAC. & REM. CODE §
    27.011(b).
    A defendant who believes that a lawsuit is based on his valid exercise of First
    Amendment rights may move for expedited dismissal of the suit. Lipsky, 460 S.W.3d
    at 586. The defendant must first show by a preponderance of the evidence that the
    TCPA applies, that is, that the plaintiff’s legal action is based on, relates to, or is in
    response to the defendant’s exercise of: (1) the right of free speech; (2) the right to
    petition; or (3) the right of association. Id. at 586–87; see TEX. CIV. PRAC. & REM.
    CODE § 27.005(b).
    Once the initial showing is made, the burden shifts to the plaintiff to establish
    by “clear and specific evidence a prima facie case for each essential element of the
    claim in question.” TEX. CIV. PRAC. & REM. CODE § 27.005(c).
    “Requiring ‘clear and specific evidence’ means that the plaintiff ‘must
    provide enough detail to show the factual basis for its claim’ and must provide
    enough evidence ‘to support a rational inference that the allegation of fact is true.’”
    Dall. Morning News, Inc. v. Hall, 
    579 S.W.3d 370
    , 377 (Tex. 2019) (quoting Lipsky,
    460 S.W.3d at 590–91). “The plaintiff may rely on circumstantial evidence—
    indirect evidence that creates an inference to establish a central fact—unless ‘the
    connection between the fact and the inference is too weak to be of help in deciding
    15
    the case.’” 
    Id.
     (quoting Lipsky, 460 S.W.3d at 589). If the plaintiff does not meet
    his burden, the trial court must dismiss the plaintiff’s claim. See TEX. CIV. PRAC. &
    REM. CODE § 27.005.
    However, “even if the plaintiff satisfies the second step, the court will [still]
    dismiss the action if the defendant ‘establishes by a preponderance of the evidence
    each essential element of a valid defense’ to the plaintiff’s claim.” ExxonMobil
    Pipeline Co. v. Coleman, 
    512 S.W.3d 895
    , 899 (Tex. 2017); see TEX. CIV. PRAC. &
    REM. CODE § 27.005(d) (“Notwithstanding the provisions of Subsection (c), the
    court shall dismiss a legal action against the moving party if the moving party
    establishes by a preponderance of the evidence each essential element of a valid
    defense to the nonmovant’s claim.”)
    In deciding whether dismissal is warranted, we must consider the “pleadings
    and supporting and opposing affidavits stating the facts on which the liability or
    defense is based.” TEX. CIV. PRAC. & REM. CODE § 27.006(a); see Lipsky, 460
    S.W.3d at 589 (“[T]he Act endorses a summary process, requiring judicial review of
    the pleadings and limited evidence”). We review de novo the trial court’s
    determinations under section 27.005. See Hall, 579 S.W.3d at 377.
    Defamation
    The essential elements of a defamation claim are (1) the publication of a false
    statement of fact to a third party, (2) that was defamatory concerning the plaintiff,
    16
    (3) made with the requisite degree of fault, and (4) caused damages, in some cases.
    Lipsky, 460 S.W.3d at 593.
    “Establishing the falsity of an allegedly defamatory article is not as simple as
    showing that the article contains a statement that falls short of literal truth.” Polk
    Cnty. Publ’g Co. v. Coleman, 
    685 S.W.3d 71
    , 76 (Tex. 2024). “A statement need
    not be perfectly true; as long as it is substantially true, it is not false.” 
    Id.
     (quoting
    KBMT Operating Co. v. Toledo, 
    492 S.W.3d 710
    , 715 (Tex. 2016)). Substantial
    truth may be measured by whether the report “taken as a whole is more damaging to
    the plaintiff’s reputation than a truthful [report] would have been.” Toledo, 492
    S.W.3d at 714; see Coleman, 685 S.W.3d at 80. “This requires determining the
    import of the [report] as a whole—its gist to the ordinary listener—and comparing
    it to a truthful report.” Toledo, 492. S.W.3d at 714.
    “Assessing substantial truth requires more than merely asking whether one
    statement plucked from a lengthy article is true or false.” Coleman, 685 S.W.3d at
    76. “Instead, ‘the meaning of a publication . . . depends on a reasonable person’s
    perception of [its] entirety . . . and not merely on individual statements.’” Id.
    (quoting Turner v. KTRK Television, Inc., 
    38 S.W.3d 103
    , 115 (Tex. 2000)). An
    article is substantially true if its “gist”4 is correct, even if it errs in the details. 
    Id.
    4
    “Gist” refers to a publication’s “main theme, central idea, thesis, or essence.” Dall.
    Morning News, Inc. v. Tatum, 
    554 S.W.3d 614
    , 629 (Tex. 2018).
    17
    That is, a news article “with specific statements that err in the details but that
    correctly convey the gist of a [true] story is substantially true and therefore not
    actionable.” 
    Id.
     (internal quotations omitted).
    “Identifying the gist of an allegedly defamatory publication is a question of
    law for the court.” 
    Id.
     “Courts determine an article’s gist or meaning by examining
    how a person of ordinary intelligence would view it.” 
    Id.
     (internal quotations
    omitted). This is an objective inquiry that asks how a “‘hypothetical reasonable
    reader’ would understand the article, not how any particular reader actually
    understood it.” 
    Id.
     (quoting New Times, Inc. v. Isaacks, 
    146 S.W.3d 144
    , 157 (Tex.
    2004)).
    With respect to the second element above, whether words are capable of the
    defamatory meaning the plaintiff attributes to them is also a question of law for the
    court. Better Bus. Bureau of Metro. Hous., Inc. v. John Moore Servs., Inc., 
    441 S.W.3d 345
    , 356 (Tex. App.—Houston [1st Dist.] 2013, pet. denied). Libel is
    written defamation that “tends to injure a . . . person’s reputation and thereby expose
    the person to public hatred, contempt or ridicule, or financial injury” or to “impeach”
    the person’s “honesty, integrity, virtue or reputation.” TEX. CIV. PRAC. & REM. CODE
    § 73.001. A communication that hurts the plaintiff’s feelings or is merely
    unflattering, abusive, annoying, or embarrassing is not actionable. John Moore
    Servs., Inc., 
    441 S.W.3d at 356
    .
    18
    With respect to the third element, the status of the person allegedly defamed
    determines the requisite degree of fault. Lipsky, 460 S.W.3d at 593. Here, Dr. Frazier
    asserts, and the Publishers do not dispute, that he is “a renowned heart surgeon and
    public figure.” A public figure must prove actual malice. Id. “Actual malice” in this
    context means that the statement was made with knowledge of its falsity or with
    reckless disregard for its truth. Huckabee v. Time Warner Ent. Co., 
    19 S.W.3d 413
    ,
    420 (Tex. 2000).
    Finally, the plaintiff must establish damages, unless the statements at issue are
    defamatory per se. Lipsky, 460 S.W.3d at 593. Defamation per se refers to statements
    that are so obviously harmful that general damages are presumed. Id. Generally, “a
    statement is defamatory per se if it injures a person in [his] office, profession, or
    occupation.” Bedford v. Spassoff, 
    520 S.W.3d 901
    , 905 (Tex. 2017) (internal
    quotations omitted). Whether a statement constitutes defamation per se is generally
    a question of law. Lipsky, 460 S.W.3d at 596.
    Dr. Frazier’s TCPA Burden
    Here, the parties do not dispute that the TCPA applies to the claim asserted.
    See TEX. CIV. PRAC. & REM. CODE § 27.005(b). Thus, the burden shifted to Dr.
    Frazier to establish by clear and convincing evidence a prima facie case for each
    essential element of his defamation claim. See id. § 27.005(c).
    19
    Even were we to conclude that the trial court properly considered all of Dr.
    Frazier’s evidence—including the LaBove report—and that Dr. Frazier established
    the prima facie elements of his defamation claim, the trial court would still be
    required to dismiss his claim if the Publishers proved by a preponderance of the
    evidence the essential elements of a valid defense. See TEX. CIV. PRAC. & REM. CODE
    § 27.005(d) (“Notwithstanding the provisions of Subsection (c),” i.e., the plaintiff’s
    burden to establish the prima facie elements of his claim, “the [trial] court shall
    dismiss a legal action against the moving party if the moving party establishes by a
    preponderance of the evidence each essential element of a valid defense to the
    nonmovant’s claim.” (emphasis added)); ExxonMobil, 512 S.W.3d at 899 (“[E]ven
    if the plaintiff satisfies the second step, the court will [still] dismiss the action if the
    defendant establishes by a preponderance of the evidence each essential element of
    a valid defense to the plaintiff’s claim.” (internal quotations omitted)).
    Because we conclude below that the Publishers established a valid defense to
    Dr. Frazier’s defamation claim, we need not determine whether Dr. Frazier
    established a prima facie case—that is, achieved a lower burden—for each element
    of that claim. See Youngkin v. Hines, 
    546 S.W.3d 675
    , 681 (Tex. 2018) (“Assuming
    without deciding that [plaintiff] met his burden, we nevertheless hold that
    [defendant] is entitled to dismissal because he established [a valid defense].”);
    Choctaw Constr. Servs. LLC v. Rail-Life R.R. Servs., LLC, 
    617 S.W.3d 143
    , 151
    20
    (Tex. App.—Houston [1st Dist.] 2020, no pet.) (“[a]ssuming without deciding” that
    TCPA plaintiff met its burden and determining whether defendant established valid
    defense).
    The Publishers’ TCPA Burden
    In their TCPA motion to dismiss, the Publishers asserted the defenses of
    (1) substantial truth, (2) non-actionable opinion, and (3) the fair reporting and fair
    comment privileges.
    A.      Substantial Truth defense
    As pertinent here, the trial court found that the article created “false
    impressions” that Dr. Frazier (1) committed federal research violations,
    (2) committed ethical violations, (3) failed to disclose conflicts of interest, and
    (4) was “an old and incompetent surgeon who should not have been operating in his
    seventies.”
    “Implicit defamatory meanings—like explicit defamatory statements—are
    not actionable if they are either true or substantially true.” Dall. Morning News, Inc.
    v. Tatum, 
    554 S.W.3d 614
    , 640 (Tex. 2018).
    “The truth of the statement in the publication on which an action for libel is
    based is a defense to the action.” TEX. CIV. PRAC. & REM. CODE § 73.005(a). “In an
    action brought against a newspaper or other periodical or broadcaster, the defense
    21
    described by Subsection (a) applies to an accurate reporting of allegations made by
    a third party regarding a matter of public concern.” Id. § 73.005(b).
    In determining whether the Publishers met their burden to establish substantial
    truth, we apply the same substantial truth test discussed above with respect to Dr.
    Frazier’s prima facie case. See Coleman, 685 S.W.3d at 76; see also Vice v.
    Kasprzak, 
    318 S.W.3d 1
    , 17 n.9 (Tex. App.—Houston [1st Dist.] 2009, pet. denied)
    (“The test is the same whether the burden of proving falsity rests on the plaintiff or
    on the defendant proving the . . . defense of substantial truth.”).
    That is, substantial truth may be measured by whether the article, taken as a
    whole, is more damaging to Dr. Frazier’s reputation than a truthful report would
    have been. See Toledo, 492 S.W.3d at 714; Baumgart v. Archer, 
    581 S.W.3d 819
    ,
    827–28 (Tex. App.—Houston [1st Dist.] 2019, pet. denied); see also Cox Media
    Grp., LLC v. Joselevitz, 
    524 S.W.3d 850
    , 861 (Tex. App.—Houston [14th Dist.]
    2017, no pet.). “In making this determination, we do not compare the gist of the
    article to the actual facts; instead, we must determine whether the article is a ‘fair,
    true, and impartial account of the proceedings’ reported.” Baumgart, 581 S.W.3d at
    827–28 (quoting Toledo, 492 S.W.3d at 715); Joselevitz, 
    524 S.W.3d at 861
    ; see also
    Hall, 579 S.W.3d at 380 (citing TEX. CIV. PRAC. & REM. CODE § 73.005(b))
    22
    (“[M]edia outlets that accurately report allegations made by a third party about
    matters of public concern can assert the truth as a defense.”).5
    1.     Federal research violations
    The Publishers argue that the trial court erred in finding that the article created
    a false impression that Dr. Frazier had federal research violations because the gist of
    the article is substantially true.
    The article presents findings detailed in a 2008 Board Summary to the
    members of St. Luke’s board of directors.            The article states that executives
    concluded that Dr. Frazier and his team had implanted experimental implant devices
    in 30 patients who were enrolled in government health plans and for whom the
    medical need for the devices and compliance with trial parameters “could not be
    documented.” St. Luke’s and THI officials reported the violations to the federal
    government, pledged a host of reforms, and “planned to give back between $3.4
    million and $5.4 million in payments that Medicare had made on behalf of patients
    who received unjustified surgical treatments.” The article cites, and the online
    versions link to, the Board Summary and Self-Reporting Letter.
    5
    As noted in our opinion in the first appeal in this case, Dr. Frazier did not preserve
    his complaints regarding the constitutionality of section 27.005(d). ProPublica, Inc.
    v. Frazier, No. 01-19-00009-CV, 
    2020 WL 370563
    , at *10 (Tex. App.—Houston
    [1st Dist.] Jan. 23, 2020, pet. denied) (“[T]he trial court never ruled on the
    constitutionality of the TCPA in connection with the Motion to Dismiss.”).
    23
    The gist of the article is that Dr. Frazier has been accused of violating federal
    research rules. See Joselevitz, 
    524 S.W.3d at
    861 n.13.
    In support of their motion to dismiss, the Publishers presented copies of the
    Board Summary and Self-Reporting Letter.
    The Board Summary states:
    Through our corporate compliance program, St. Luke’s has identified
    Instances of ongoing research noncompliance in connection with the
    (HeartMate II LVAD Pivotal Study/Clinical Evaluation of the Jarvik
    2000 Heart Assist System) protocol.
    ....
    In total, we identified 30 patients with government healthcare program
    claims associated with the LVAD studies for which medical necessity
    and compliance with the approved protocol could not be documented
    by the patient’s medical record. These patients were enrolled in the
    studies in violation of the entry criteria without justification for the
    protocol deviation.
    The Board Summary also reflects that Epstein Becker & Green PC reviewed
    LVAD research studies and produced recommendations, observations, and findings.
    The review included:
    •      Heartmate II (Thoratec) and Jarvik 2000;
    •      Compliance issues and deviations from protocols; and
    •      Reimbursement from federal programs for patients who did not qualify
    for the protocol.
    The Board Summary states that the review “revealed serious and repeated
    non-compliance with FDA regulations including implantation of LVAD’s in
    violation of study criteria and without IRB [institutional review board] approval.”
    24
    “Medicare regulations state that devices must be medically necessary in order to
    receive reimbursement and must be used in accordance with protocols.” And, “[t]his
    improper use placed St. Luke’s at risk for $5.4 million.”
    The Board Summary identifies “categories of possible risk” including: “No
    reasons documented for medical necessity; therefore, St. Luke’s would be required
    to repay approximately $3.4 million (involving 17 patients).”
    The Board Summary also includes the “Young Report,” stating as follows:
    James Young, MD (a cardiologist with previous links to Baylor College
    of Medicine and The Methodist Hospital), a Cleveland Clinic
    physician, conducted an assessment of St. Luke’s heart failure program.
    He described it as an aggressive program that pushes the limits. Dr.
    Young found the documentation to be poor and noted that Dr. Frazier
    was not up front.
    The Self-Reporting Letter reflects that St. Luke’s and THI conducted a review
    of records associated with the HeartMate II Pivotal Study and the Clinical Evaluation
    of the Jarvik 2000. The review “identified several instances in which subjects were
    enrolled without the necessary prior approval of the IRB” and “identified instances
    of ongoing research noncompliance occurring over a period of years.” The review
    states that THI will use an independent third party to conduct an audit of all “current
    studies in which [Dr. Frazier] is the principal investigator and report any unapproved
    protocol deviations and previously unreported adverse events to the IRB.”
    Comparing the article to the record shows that the article substantially mirrors
    the Board Summary and Self-Reporting Letter. See 
    id. at 862
    .
    25
    Yet, the trial court found that the Publishers created a false impression that
    Dr. Frazier has research violations because they omitted from the article “facts about
    the FDA 2006 and 2009 audits”; omitted discussion of the FDA Clinical Study
    Approval Protocols; “published false statements” by Dr. Young in the Board
    Summary; and “misleadingly relied on reports authored by a law firm [Board
    Summary] and a consulting group [Anson Report].”
    “A plaintiff can bring a claim for defamation when discrete facts, literally or
    substantially true, are published in such a way that they create a substantially false
    and defamatory impression by omitting material facts or juxtaposing facts in a
    misleading way.” Baumgart, 581 S.W.3d at 828 (quoting Turner, 38 S.W.3d at 115);
    see Tatum, 554 S.W.3d at 627 (in cases of defamation by implication, defamatory
    meaning arises implicitly from statement’s text). So even if a publication “gets the
    details right but fails to put them in the proper context and thereby gets the story’s
    ‘gist’ wrong,” it may be liable for defamation. Turner, 38 S.W.3d at 115 (internal
    citation omitted).
    Dr. Frazier’s evidence includes an FDA “Establishment Inspection Report”
    from June 2009, which references an August 2006 inspection. The article does not
    mention the FDA—other than to note, in a positive light, its approval of the
    HeartMate II device.
    26
    However, the substantial truth of the statements in the article is not measured
    by the accuracy of the underlying facts, i.e., whether the Board Summary or Anson
    Report are actually correct in light of isolated FDA reports or protocols, or whether
    the Board Summary accurately reflects Dr. Young’s reviews. See Baumgart, 581
    S.W.3d at 827–28. Rather, any liability of the Publishers focuses on whether the
    article is a “fair, true, and impartial account of the proceedings reported.” See id.
    (emphasis added).
    The trial court also found that the Publishers created a false impression that
    Dr. Frazier had research violations by “misleadingly juxtapos[ing] statements.”
    Specifically, it found that the Publishers placed a quote by Dr. Smart—“Things. . . I
    just could not imagine.”—in the article headline, followed by: “A Pioneering Heart
    Surgeon’s Secret History of Research Violations, Conflicts of Interest, and Poor
    Outcomes.” It found that such “gives the false and misleading impression that the
    quote is about Dr. Frazier—that the accusation of his ‘hidden history’ is true.”
    Dr. Frazier’s evidence includes a transcript of Hixenbaugh’s telephonic
    interview with Dr. Smart. In the interview, Dr. Smart recounted his experiences in
    the St. Luke’s LVAD program. The statement at issue, “Things. . .I just could not
    imagine,” occurs within the context of Dr. Smart’s discussion of the program, which
    he notes was under Dr. Frazier’s guidance.
    27
    We conclude that the allegedly defamatory statements, when compared
    against the record, are substantially true because they are not more damaging to Dr.
    Frazier’s reputation than truthful statements would have been. See Tatum, 554
    S.W.3d at 640–41; Toledo, 492 S.W.3d at 714–15; Baumgart, 581 S.W.3d at 827–
    29. Thus, the gist of the article, that Frazier has been accused of violating federal
    research rules, is substantially true. See Coleman, 685 S.W.3d at 76; Baumgart, 581
    S.W.3d at 827–28; see also Joselevitz, 524 S.W.3d at 861–62.
    2.     Ethical violations
    The trial court also found that the Publishers created a false impression that
    Dr. Frazier has ethical violations because they “misleadingly reported” the 1994
    lawsuit. Specifically, the Publishers “made the following false statement: ‘Frazier
    allowed a researcher who was not licensed [“Dr. Brano”] to practice medicine in
    Texas to treat heart failure patients in his program.’”
    The Publishers argue that the gist of the article is substantially true because it
    accurately describes the allegations in the Riley lawsuit.
    The article states that, in a “1994 federal lawsuit,” former St. Lukes nurse
    Joyce Riley alleged that Dr. Frazier had “‘participated in a scheme’ to unnecessarily
    admit patients in order to move them higher on the national heart transplant waiting
    list.” According to the article, filings in the lawsuit state that a researcher who was
    not licensed to practice medicine in Texas had “routinely issued orders for patients
    28
    in Frazier’s program, prescribed drugs, took resident medical students on rounds,
    helped harvest organs for transplant and provided post-surgical patient care.” And
    the 1994 lawsuit, “backed by patient records, testimony, [and] secret recordings of
    hospital employees, revealed that Frazier’s signature stamp was sometimes used to
    authorize the researcher’s improper medical orders.” The lawsuit alleged that Dr.
    Frazier “knew of, directed, and personally participated in the fraudulent conduct and
    false claims described therein.”
    Thus, the gist of the article is that Dr. Frazier has been accused of skirting
    ethical guidelines. See Joselevitz, 
    524 S.W.3d at
    861 n.13. The essence of the
    allegation is that he knowingly allowed his signature to be used on the orders of an
    unlicensed physician.
    In support of their motion to dismiss, the Publishers presented a copy of the
    Third Amended Complaint filed in United States, ex rel Joyce Riley v. St. Luke ’s
    Episcopal Hospital, Cause No. H-94-3996, in the United States District Court for
    the Southern District of Texas. The complaint reflects that Riley alleged:
    4.     [A]n ongoing conspiracy among all the Defendants allows a man who
    was not licensed to practice medicine in the United States to harvest organs
    and treat transplant patients. St. Luke’s Episcopal Hospital, its doctors and
    nurses, as well as the University of Texas Health Science Center, Baylor
    College of Medicine, Surgical Associates of Texas, P.A., and the Texas Heart
    Institute, all knew Branislav Radovancevic had no license. Yet “Dr. Brano,”
    as he was nicknamed, cared for patients on the transplant floor. Issued orders.
    Prescribed drugs. Took doctors on rounds. Upgraded patients’ status.
    Harvested organs here in Houston and around the country. And decided who
    would receive a transplant.
    29
    5.    The physician and nursing staff were told to follow his orders—but not
    to sign his name to any documentation. Other doctors signed for him.
    Ostensibly, Defendant Dr. O. Howard Frazier, a licensed doctor, was
    supposed to care for these patients. He was the doctor who billed these
    patients. But many never saw him.
    A comparison of the article to the record shows that the article accurately
    presents the allegations in the petition. See Joselevitz, 
    524 S.W.3d at 862
    . And the
    article postures these allegations as such, i.e., “allegations.” That these are the
    allegations in the lawsuit is literally true. See Tatum, 554 S.W.3d at 640; see also
    TEX. CIV. PRAC. & REM. CODE § 73.005(b).
    Dr. Frazier presented his affidavit stating that the hospital was responsible for
    credentialing physicians and that he bore no responsibility for verifying the
    credentials or licensure. He stated that “any implication or expression” that he
    “allowed or encouraged an unlicensed doctor to practice medicine is false.”
    Again, we do not compare the gist of the article to the actual facts; instead,
    we have determined simply that the article is a “fair, true, and impartial account of
    the proceedings reported.” See Baumgart, 581 S.W.3d at 827–28.
    Further, with respect to skirting ethical guidelines, we conclude that 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. See
    Tatum, 554 S.W.3d at 640–41; Toledo, 492 S.W.3d at 714–15; Baumgart, 581
    30
    S.W.3d at 827–29. Thus, they are substantially true. See Coleman, 685 S.W.3d at
    76; Baumgart, 581 S.W.3d at 827–28; see also Joselevitz, 524 S.W.3d at 861–62.
    3.     Failing to disclose conflicts of interest
    The Publishers argue that the trial court erred in finding that the article created
    the “false impression . . . that Dr. Frazier had conflicts of interest that impacted the
    accuracy of the research” because the gist of the article is substantially true.
    The article states that Dr. Frazier has had, by his own accounting, a hand in
    developing nearly every cardiac pump in use today. Yet, he had “often” failed to
    fully disclose potential conflicts of interest dating back to 2008. It states that a 2008
    St. Luke’s Board Summary noted his “failure to accurately complete the conflict of
    interest form” and that he “still doesn’t understand.” In support of their motion to
    dismiss, the Publishers presented the Board Summary.
    According to the article, from 2013 to 2016, federal data showed that device
    makers paid Dr. Frazier $44,000 for travel, meals, and work on their behalf. But Dr.
    Frazier did not disclose those payments in related research papers. The article cites,
    and the online versions link to, two studies and a letter that editors at NEJM sent to
    Dr. Frazier. A spokesperson told reporters that Dr. Frazier agreed to submit revised
    disclosure forms. In support of their motion to dismiss, the Publishers presented the
    NEJM correction.
    31
    The article also states that, in 2008, Dr. Frazier served as the chairman of the
    medical advisory board for HeartWare International and, according to SEC
    documents, which were linked in the online version of the article, he was awarded
    certain stock options. One year later, Frazier transferred them to his son. And
    Frazier’s attorney presented documents showing that the son had exercised the
    options and collected proceeds totaling $130,813. The article quotes Dr. Frazier as
    stating: “It never occurred to me that [my son’s] having owned and sold the options
    was a conflict.”
    The gist of the article is that Dr. Frazier failed to comply with standards for
    disclosure and conflicts of interest. See Joselevitz, 
    524 S.W.3d at
    861 n.13. Dr.
    Frazier complains that the article “omitted material facts to create a false impression
    that [he] could be ‘bought off’ and valued money and medical history over saving
    lives.” And it “misleadingly juxtapose[d]” facts to make it appear that he “often”
    failed to comply with industry standards regarding reporting conflicts. However, a
    comparison of the article to the record before us shows that the article substantially
    mirrors the Board Summary and NEJM correction. See 
    id. at 862
    .
    Further, in his affidavit, Dr. Frazier does not dispute that he received $44,000
    as stated in the article and that he received payments over a “several-year period.”
    He does not address disclosure but simply asserts that such payments “would not
    32
    have caused [him] to have any conflicts of interest.” In his response to the motion
    to dismiss, he admits having received the stock options.
    Accordingly, we conclude that 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. See Tatum, 554 S.W.3d at 640–41; Toledo,
    492 S.W.3d at 714–15; Baumgart, 581 S.W.3d at 827–29.                  Thus, they are
    substantially true. See Coleman, 685 S.W.3d at 76; Baumgart, 581 S.W.3d at 827–
    28; see also Joselevitz, 524 S.W.3d at 861–62.
    4.     “Old and incompetent surgeon”
    The Publishers argue that the trial court erred in finding that the article created
    the false impression that Dr. Frazier was “an old and incompetent surgeon who
    should not have been operating in his seventies.” The trial court found that the
    Publishers falsely reported that, during the last five years of his career as a surgeon,
    Dr. Frazier had one of the highest mortality rates in the nation.
    According to the article, Dr. Frazier stated that, in 2010, he turned 70 years
    old and “began to transition to a new role”—“continuing to direct research” at THI
    while “allowing younger physicians to take the lead on most transplants and pump
    implantations.” And it was his decision to stop operating in 2015.
    The article states that “Medicare data shows” that, from 2010 to 2015, Dr.
    Frazier “implanted long-lasting [LVADs] in 63 Medicare patients,” and “[s]ome 31
    33
    of those patients—nearly half—did not survive a year.” This was “nearly double the
    25 percent one-year mortality rate for Medicare patients who received LVADs from
    other St. Luke’s surgeons during the same period.” In addition, it was “one of the
    highest mortality rates in the nation”—as the “national rate for Medicare was 28
    percent.” The article notes that St. Luke’s “said it stood behind the accuracy of the
    numbers it submitted to Medicare.”
    In the article, Dr. Frazier responded that it was “grossly unfair” to focus solely
    on Medicare patients, rather than on the larger pool of patients the hospital treated.
    But the article explains that “[r]esearchers commonly compare outcomes using
    Medicare data because it represents tens of millions of patients and because data for
    privately insured patients is not publicly available.”
    The gist of the article is that Dr. Frazier had one of the highest mortality rates
    in the nation during the last five years of his career as a surgeon. See Joselevitz, 
    524 S.W.3d at
    861 n.13.
    In support of their motion to dismiss, the Publishers presented the affidavit of
    Hannah Fresques, a data reporter for ProPublica. In her affidavit, Fresques noted
    that she has a Master’s Degree in Quantitative Methods for Social Science from
    Columbia University, where she studied research methodology, applied statistics,
    and data science, and she has five years’ experience as a data analyst in policy
    research. With respect to her work on the article, she stated:
    34
    10.   For our analysis, ProPublica used data from The Centers for Medicare
    & Medicaid Services (CMS) covering hospital in-patient visits and
    mortality for 2010-2015. (Specifically, the files were the Medicare
    100% Standard Analytic Files and Denominator Files.) The data was
    submitted by hospitals to Medicare for billing purposes, and hospitals
    are responsible for its accuracy. The data is not publicly available but
    instead is only available to researchers who go through an approval
    process and sign a data use agreement. . . .
    11.   Each record in the data represents a patient’s hospital visit, indicating
    when the patient was admitted, what diagnoses were present, which
    procedures were performed, and the identity of the operating surgeon,
    if applicable. The data conceals patients’ names, Medicare ID numbers,
    addresses, and dates of birth. The data does not represent all patients,
    only those who are enrolled in fee-for-service Medicare.
    12.   For the purpose of our analysis, we looked at a subset of records related
    to patients who underwent certain heart procedures. Specifically, we
    looked at claims submitted under diagnosis groups 001 and 002, which
    cover heart transplants mid implantation of mechanical heart pumps,
    and then further looked for specific procedure codes that correspond to
    ventricular assist device implantation (37.66 under the 1CD-9 schema
    and 02MA0QZ under ICD-10). In total, our analysis looked at 7,552
    such in-patient visits, covering a total of 7,277 patients. These numbers
    include 63 patients operated on by Frazier. . . .
    13.   With 63 patients, Frazier was one of the highest-volume surgeons in the
    country for ventricular assist device Implantations in Medicare patients.
    There were 773 surgeons who performed the operation under Medicare
    in that time period. By number of LVAD patients, Frazier ranked 24th
    among them. St Luke’s/THIs program ranked third in terms of volume
    of LVAD Medicare patients among the 188 hospitals where the
    operation was performed.
    14.   We looked at mortality data for Frazier as well as surgeons at all other
    hospitals across the country and found that, during the time period at
    issue (2010–2015), about half (31 of 63) of Frazier’s patients did not
    survive a year, which was one of the highest mortality rates in the
    nation. Frazier’s mortality rate was 49 percent; this was nearly double
    the 25 percent mortality rate for Medicare patients who received
    LVADs from other St. Luke’s surgeons during that same time period.
    During that period, the national mortality rate for Medicare was 28
    35
    percent. Comparing Frazier to the 191 other surgeons in the country
    with ten or more LVAD procedures under Medicare during 2010-2015,
    Frazier had the ninth highest mortality rate, though the highest among
    doctors who performed as many or more surgeries than him.
    The Publishers also presented a companion report, “Here’s How ProPublica
    Analyzed Bud Frazier’s Medicare Outcomes,” in which it publicized its underlying
    methodology.
    A comparison of the article to the record shows that the article tracks the
    Publishers’ findings based on their review of CMS data covering hospital in-patient
    visits and mortality for 2010–2015—specifically, the Medicare 100% Standard
    Analytic Files and Denominator Files. See 
    id. at 862
    .
    But Dr. Frazier complains that the Publishers “failed to ‘risk-adjust’ raw
    Medicare mortality data for the health risks of [his] mortally ill patients.” He argued
    that there are other variables for which the article simply fails to account—such as,
    “heart surgeons nationwide sent their hardest cases” to him. And, rather than placing
    his “high-risk practice in proper context,” the Publishers “portrayed [him] as a
    doddering surgeon operating ‘well into his 70s,’ his diminished surgical skills
    proven by an abnormally high mortality rate.”
    In his affidavit, Dr. Frazier states that a “properly risk-adjusted ranking would
    not show [his] patients’ outcomes so low.” He did not, however, present any
    evidence of what properly risk-adjusted data would have shown.
    36
    We conclude that the allegedly defamatory statements, when compared
    against the record before us, are not more damaging to Dr. Frazier’s reputation than
    a truthful statement would have been. See Tatum, 554 S.W.3d at 640–41; Toledo,
    492 S.W.3d at 714–15; Baumgart, 581 S.W.3d at 827–29.                    They, too, are
    substantially true. See Coleman, 685 S.W.3d at 76; Baumgart, 581 S.W.3d at 827–
    28; see also Joselevitz, 524 S.W.3d at 861–62.
    B.     Non-actionable opinions
    The Publishers argue that the trial court erred in finding that the article created
    the false impression that Dr. Frazier “hid research showing an increased rate of
    stroke in LVAD patients.” They assert that the statements at issue by Drs. Cohn and
    Smart constitute non-actionable opinions as they are expressly stated as their
    “beliefs” in the article.
    “[S]tatements that are not verifiable as false cannot form the basis of a
    defamation claim.” Scripps NP Operating, LLC v. Carter, 
    573 S.W.3d 781
    , 794–95
    (Tex. 2019). “Statements that cannot be verified, as well as statements that cannot
    be understood to convey a verifiable fact, are opinions.” Tatum, 554 S.W.3d at 639.
    In distinguishing between a fact verifiable as false and an opinion, we focus on the
    verifiability of the statement. Bentley v. Bunton, 
    94 S.W.3d 561
    , 581 (Tex. 2002).
    “And even when a statement is verifiable as false, it does not give rise to liability if
    the ‘entire context in which it was made’ discloses that it is merely an opinion
    37
    masquerading as fact.” Tatum, 554 S.W.3d at 639. Whether a statement constitutes
    a non-actionable opinion is a question of law. Id.
    The article discusses what two cardiologists at THI who were familiar with
    Dr. Frazier’s research “said” and “believed” with respect to their concerns about the
    incidence of stroke in patients who had received the Heartmate II LVAD.
    Drs. Cohn and Smart “observed a troubling side effect in some patients,”
    namely, “[a]bout a quarter of the first 71 patients implanted with the LVAD at St.
    Luke’s had suffered strokes.” (Emphasis added.) They “told reporters that they
    believed those findings should have been published in a medical journal, but they
    were not.” (Emphasis added.) Dr. Cohn recalled the matter as a “disagreement” with
    Dr. Frazier.
    Additionally, Dr. Smart expressed his concerns that LVAD research was
    taking priority over what he believed was best for patients, and, as a result, patients
    were receiving experimental heart pumps before they needed them and were staying
    on them rather than receiving transplants.
    The article throughout postured the comments by Drs. Cohn and Smart as their
    “beliefs” and recounted examples of why they held those beliefs. These are reports
    on assertions of opinion. See Tatum, 554 S.W.3d at 639. As such, they cannot form
    the basis of a defamation claim. Id.
    38
    Dr. Frazier states in his affidavit that he has published research results
    indicating a significant risk of stroke in LVAD patients. He does not state, however,
    that these articles disclosed the incidence of stroke in the first 71 patients implanted
    with LVADs at St. Luke’s—the concern stated by Drs. Cohn and Smart. The article
    does not state that Dr. Frazier has never published any articles on the risk of stroke.
    Accordingly, we conclude that the Publishers established by a preponderance
    of the evidence their defenses of substantial truth and non- actionable opinion. See
    TEX. CIV. PRAC. & REM. CODE § 27.005(d); ExxonMobil, 512 S.W.3d at 899. We
    therefore do not reach their privilege defenses.
    We sustain the Publishers’ sole issue.
    Conclusion
    For all the reasons above, we hold that the Publishers are entitled to dismissal
    under the TCPA. We therefore reverse the trial court’s order in all things and remand
    39
    for dismissal and a determination of attorney’s fees consistent with the TCPA. See
    TEX. CIV. PRAC. & REM. CODE § 27.009(a).
    Terry Adams
    Chief Justice
    Panel consists of Chief Justice Adams and Justices Guerra and Farris.
    40
    

Document Info

Docket Number: 01-22-00281-CV

Filed Date: 4/29/2024

Precedential Status: Precedential

Modified Date: 5/6/2024