DR. SUALEH KAMAL ASHRAF, APPELLANT,
v.
ADVENTIST HEALTH SYSTEM/SUNBELT, INC., A FLORIDA CORPORATION, D/B/A FLORIDA HOSPITAL APOPKA, APPELLEE

Fla. 5th DCA | 2016-07-01
No. 5D15-2415
LAMBFÍRT and EDWARDS, JJ., concur.
200 So. 3d 173 Florida District Court of Appeal, Fifth District (2016) Caution
Cited by 5 cases

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Synopsis

Dr. Ashraf appealed the dismissal of his defamation claim against a hospital for reporting adverse findings to the National Practitioner Data Bank (NPDB). The court affirmed dismissal, holding that the two-year statute of limitations under the single publication rule bars claims not filed within two years of the initial NPDB report, and certified a question of great public importance to the Florida Supreme Court.


Holding

The court held that the two-year statute of limitations under the single publication rule begins to run when a report is issued to the NPDB, and any subsequent issuance of that report does not create a new limitations period. Dr. Ashraf's claim, filed nearly six years after the initial NPDB report, is therefore time-barred.


Headnotes

[1] A defamation claim based on information reported to the National Practitioner Data Bank (NPDB) is barred if not commenced within two years of the date of the report.

[2] The single publication rule dictates that a cause of action for damages founded upon a single publication accrues at the time of the first publication.

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Key Quotes

“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”

The court's holding establishing when the statute of limitations commences for NPDB-based defamation claims.

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Facts & Procedural History

Dr. Ashraf worked as a cardiologist at Florida Hospital Apopka beginning in 2006. In June 2007, the hospital suspended his clinical privileges, and by…

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Opinion of the Court
WALLIS, J.

WALLIS, J.

Dr. Sualeh Kamal Ashraf (“DrAshraf’) 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. Ashrafs 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. Ashrafs 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. Ashrafs clinical privileges.

On December 17, 2008, Florida Hospital reported the revocation of Dr. Ashrafs 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 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). *175Thus, “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] 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.Appx. 862 (11th Cir.2012), cert. denied, - U.S. -, 133 S.Ct. 940, 184 L.Ed.2d 725 (2013) (Mem). In Pierson, the defendant suspended the, plaintiffs 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 plaintiffs 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 plaintiffs 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 Pier-son court 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 plaintiffs 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 *176C.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.

LAMBFÍRT and EDWARDS, JJ., concur.


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  • Block v. Matesic (S.D. Fla. 2023)
    …same defamer . . . is a separate and distinct publication, for which a separate cause of action arises.” Five for Entm’t S.A. v. El Cartel Records, Inc., 725 F. App’x 793, 797 (11th Cir. 2018) (quoting Ashraf v. Adventist Health Sys./Sunbelt, Inc., 200 So. 3d 173, 174 (Fla. 5th DCA 2016)). It’s undisputed that Block published both the 2020 Email and the 2021 Candidacy Letter more than two years before Matesic filed his Counterclaim.5 The question, then, is whether any “separate and distinct publications” o…
  • …llman, 906 So. 2d 1094, 1099 (Fla. 2d DCA 2004) (“We are not persuaded that our supreme court would allow the doctrine [of equitable tolling] to be applied in civil action[s] such as the Plaintiffs’.”); Ashraf v. Adventist Health Sys./Sunbelt, Inc., 200 So. 3d 173, 174 (Fla. 5th DCA 2016) (“The statute of limitations begins to run at the time of publication, not when the plaintiff discovers the alleged defamatory material.”); Aruanno v. Martin Cnty. Sheriff, 343 F. App’x 535, 537 (11th Cir. 2009) (noting that…

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