The Leapfrog Group is asking a federal appeals court to overturn a ruling that barred the hospital-rating organization from using a disputed methodology to grade five South Florida hospitals.
In a brief filed Thursday with the 11th U.S. Circuit Court of Appeals, Leapfrog argues the case raises First Amendment issues because its A-to-F safety grades are “opinions” protected by the Constitution.
The case involves five Tenet Healthcare hospitals that did not participate in Leapfrog's 2024 voluntary survey. Using an updated methodology, Leapfrog gave those hospitals the lowest possible scores for some measures when data was unavailable.
The hospitals, part of the Palm Beach Health Network, sued, alleging the grades misled the public about their safety.
U.S. District Judge Donald Middlebrooks, of the Southern District of Florida, agreed with Tenet, finding Leapfrog's changed methodology violated Florida's consumer-protection law. He ordered Leapfrog to remove the affected grades and stop using the disputed methodology for the five hospitals.
Leapfrog complied with Middlebrooks’ order. In May, its spring report did not assign grades to about 450 hospitals that did not participate. Eight were in Florida, including the five that filed suit: Good Samaritan Medical Center and St. Mary’s Medical Center in West Palm Beach; Delray Medical Center in Delray Beach; Palm Beach Gardens Medical Center; and West Boca Medical Center.
The judge rejected Leapfrog's request to reconsider that ruling in June.
In its latest appeal, Leapfrog argues the hospitals are essentially trying to use a consumer-protection law to silence criticism. It says the grades reflect Leapfrog's judgment about hospital safety, rather than “irrefutable, objective scientific fact.”
Leapfrog says the First Amendment protects its ratings as opinions on a matter of public concern.
“The First Amendment’s twin guarantees of free expression and a free press protect those judgments as paradigmatic opinions,” the organization argues in its brief.
Leapfrog also argues that, even if the grades are treated as factual statements, Tenet failed to prove that Leapfrog acted with malice – “as though it had issued the imputed scores and grades in reckless disregard of known truth.”
Leapfrog puts that argument more bluntly elsewhere in the brief, saying: “This ‘don’t grade me or I’ll sue your pants off’ response to displeasing grades has no place under the First Amendment.”
Middlebrooks also put on hold the Palm Beach Health Network’s attempt to force Leapfrog to cover $10.5 million in legal fees – about $2 million for each of the five hospitals. The judge said the request could be refiled after Leapfrog exhausted all appeals.
In a statement sent to WUSF, Palm Beach Hospital Network said it was confident the district court's ruling will be upheld on appeal.
"Leapfrog now seeks to recast its misleading Safety Grades as 'protected opinion' – effectively admitting those scores are not fully grounded in real facts," the health system said. "Leapfrog cannot avoid accountability by labeling their scores as opinion ratings that it falsely presents to patients and the public as grounded in data and hospital safety.
"Leapfrog’s Safety Grades are flawed and misleading and they have been caught deceiving the public. What they do is harmful to hospitals, doctors, other caregivers and patients, and we will continue to fight for the transparency and accuracy that patients deserve."
