The Florida Democratic Party launched its first TV ad this year in the governor’s race and the subject is a familiar one: the investigation into Republican Gov. Rick Scott’s former health care company.
"Maybe you’ve heard about what was the largest Medicare fraud in history, committed when Rick Scott was a CEO," the narrator says. "Or that Scott’s company paid record fraud fines of $1.7 billion dollars. And when Scott was deposed in lawsuits about his company, he took the Fifth 75 times. Meaning, 75 times, Scott refused to answer questions because – if he had – he might admit to committing a crime."
The ad launched June 17, 2014, and is airing in West Palm Beach and Orlando, as well as Tampa Bay, which is home turf for Democratic front runner Charlie Crist.
Earlier this year, we fact-checked a similar claim by the Democrats about the $1.7 billion fine, rating it Mostly True. Here we will fact-check whether Scott took the Fifth Amendment 75 times. It’s not a new topic, for Scott or for us. We fact-checked similar claims during Scott’s first race in 2010.
Scott started Columbia in 1987 by purchasing two El Paso, Texas, hospitals. He quickly grew the company into one of the country’s largest publicly traded hospital chains, and in 1994, merged Columbia with Tennessee-headquartered HCA and its 100 hospitals.
In early 1997, federal agents revealed they were investigating the Columbia/HCA chain for, among other things, Medicare and Medicaid fraud. Allegations included that Columbia/HCA billed Medicare and Medicaid for tests that were not necessary or ordered by physicians, and that the hospital chain would perform one type of medical test but bill the federal government for a more expensive test or procedure. Agents seized records from facilities across the country including in Florida.
Scott resigned in July 1997. Scott said he wanted to fight the federal government accusations, but the corporate board of Columbia/HCA wanted to settle. In 2000, the company pleaded guilty to at least 14 corporate felonies and agreed to pay $840 million in criminal fines and civil damages and penalties.
The government settled a second series of similar claims with Columbia/HCA in 2002 for an additional $881 million. The total for the two fines was $1.7 billion.
Scott gave a deposition in 2000 in which he invoked the Fifth Amendment to the U.S. Constitution 75 times. The amendment reads in part that no one "shall be compelled in any criminal case to be a witness against himself."
But that deposition was not part of the criminal fraud case being pursued by the federal government. In fact, Scott was never officially questioned during the federal criminal investigation.
The deposition was part of a civil case in which Nevada Communications Corp. alleged that Columbia/HCA breached the terms of a communications contract.
Scott gave the deposition at his offices in Stamford, Conn., on July 27, 2000, months before the settlement with the federal government. (The records of Scott’s deposition were distributed to reporters by Scott’s Republican primary opponent Bill McCollum in 2010.)
The deposition shows that Scott repeatedly refused to answer questions. Scott's lawyer first interjected after an opposing lawyer began the deposition by asking simply if Scott was employed.
"Under normal circumstances, Mr. Scott would be pleased to answer that question and other questions that you pose today," Scott's lawyer, Steven Steinbach, said. "Unfortunately because of the pendency of a number of criminal investigations relating to Columbia around the country, he's going to follow my advice, out of prudence, to assert his constitutional privilege against giving testimony against himself."
Scott then went on to read the same answer, even when asked if Scott is a current or former employee of Columbia/HCA -- "Upon advice of counsel, I respectfully decline to answer the questions by asserting my rights and privileges under the Fifth Amendment of the U.S. Constitution."
The Democrats’ ad doesn’t tell viewers that the deposition was part of a civil case unrelated to the federal government’s criminal fraud investigation. However, Scott’s reason for invoking the Fifth Amendment was as a result of the criminal investigations, his lawyer said.
What about other depositions?
The Democrats’ ad makes a reference to multiple lawsuits: "And when Scott was deposed in lawsuits about his company, he took the Fifth 75 times."
"The Nevada Communications Corp. case is the only lawsuit where Scott took the Fifth 75 times," Florida Democratic Party spokesman Joshua Karp told PolitiFact Florida. (The ad includes video footage of Scott from a 1995 case -- not the 2000 case which is the focus of the ad.)
Karp pointed to a 2010 Miami Herald/Tampa Bay Times article which stated that Scott gave "murky testimony" in a series of depositions.
An example: In a 1997 deposition when he was asked about an apparent agreement he made with a Texas doctor, Scott said: "I don't know what your definition or anybody's definition of an ‘agreement’ is, or an ‘offer’ is, or ‘promise’ is.''
What he ‘might’ admit to if he had testified
The ad states that "Scott refused to answer questions because, if he had, he might admit to committing a crime." We can’t fact-check what Scott might or might not have admitted, but it’s worth noting a few things about the Fifth Amendment.
The Fifth Amendment cannot be used in a criminal court to suggest guilt, the U.S. Supreme Court ruled in 1956.
In a civil case, things get a little murkier, and judges or juries can infer what they want from a person using the Fifth Amendment.
"The bottom line is that in a civil case, the judge and jury are free to draw the inference that 'a truthful answer to the questions that he was asked would incriminate him,' " George R. Dekle, Sr., a professor of law at the University of Florida, told PolitiFact Florida in 2010. "However, there can be myriads of reasons other than guilt which prompt a person to claim a Fifth Amendment privilege, and it might be just as reasonable to infer that the witness refused to answer for some other reason."
During the Univision debate in October 2010, Scott was asked about the deposition:
"With regard to that deposition, that was years after I left HCA. It was just, you know, all the same trial lawyers that are supporting my opponent, they were doing a fishing expedition, and they sat there, you know, it was a case I knew nothing about, I was not involved, I was not a defendant. So to stop the fishing expedition I just didn't do it."
As for the case itself, Scott told the Tampa Bay Times in 2010, "There's no question that mistakes were made and as CEO, I have to accept responsibility for those mistakes. I was focused on lowering costs and making the hospitals more efficient. I could have had more internal and external controls. I learned hard lessons, and I've taken that lesson and it's helped me become a better business person and a better leader."
The Florida Democratic Party’s TV ad states that when Rick Scott "was deposed in lawsuits about his company, he took the Fifth 75 times."
We have two quibbles with the ad: the Democrats don't specify that the deposition was from a civil business case -- not the federal government’s criminal fraud investigation into Columbia/HCA. However, Scott used the Fifth Amendment due to that federal investigation.
Also, the ad refers to multiple lawsuits -- Scott was deposed in separate lawsuits, but he took the Fifth Amendment 75 times in only one of them.
We rate this claim Mostly True.