Issue 11 / 31 March 2014

CONCERNS about access to adequate postoperative care were at the heart of a recent unanimous NSW Court of Appeal decision in a defamation case.

Space constraints prevent a detailed summary, but the case involved Dr Stephen Prince and Dr John Malouf, both ear, nose and throat (ENT) surgeons.

The core facts seem to have been that Dr Prince was the regular visiting ENT surgeon at Grafton Base Hospital in rural NSW. However, as a contingency for an expected absence and in an attempt to reduce waiting lists, the hospital sought the assistance of Dr Malouf to perform surgery on the ENT list patients.

Dr Prince had no concerns as to Dr Malouf’s surgical skills, but he was concerned about postoperative care for patients as Dr Malouf was not based in Grafton. Presumably, the inference was that Dr Malouf would not be readily available in the postoperative period.

The hospital sought to address that concern by patient selection but there were said to be problems nonetheless.

Dr Prince remained concerned for the welfare of the patients who would be treated by Dr Malouf. They were, in effect, his patients as they had seen him for assessment before being listed for surgery.

A defamation claim was made by Dr Malouf because Dr Prince sent a number of letters expressing his concerns, including to patients.

The initial District Court trial — a hearing that lasted 29 days — found Dr Prince had defamed Dr Malouf in the letter to patients. The judge ordered Dr Prince to pay Dr Malouf $138 500 in damages and most of his court costs.

Dr Prince appealed the judgment saying he should have succeeded in a defence based on qualified privilege.

The Court of Appeal recognised the defence of common law qualified privilege in relation to some of the letters — those sent to people within the hospital including the chairman of the Medical Quality Committee and to the Treasury Managed Fund (in effect, the hospital’s insurer). They were found to have had a sufficient interest in receiving the letters.

However, there was no defence available for copies of the letters sent to the AMA and to a private indemnity insurer. They were held to be third parties who did not have a sufficient interest in receiving the letters.

Dr Prince had also sent letters to up to 100 patients on the waiting list. The letters included the statement: “The hospital has arranged for another surgeon to carry out extra operations. I have no part in these arrangements but I have significant concerns regarding the post-operative care of some patients who had surgery on this basis earlier in the year. Whether or not you choose to have another surgeon operate on you is of course totally your own choice.”

Dr Prince submitted that it would be expected by those of ordinary intelligence and moral principle that he would inform the patients on the ENT waiting list — who he had a pre-existing relationship with and had given advice to in relation to the recommended surgery and the postoperative care he would provide — of the changed state of affairs with respect to postoperative care in circumstances where he had a genuine concern that this gave rise to a risk of harm.

The court accepted that, as a matter of public policy, it was in the general interests of the whole community that qualified privilege was available as a defence, given that the recipients of the letter were still Dr Prince’s patients.

Whether there was a Rogers v Whitaker type legal duty to provide such information to patients was discussed in the judgment, but the precise finding on that point is difficult to discern.

What principles can we derive from the decision?

In essence, the Court of Appeal was prepared to recognise a common law qualified privilege defence in respect of potentially defamatory letters if sent to people with a sufficient interest in receiving those letters.

And the practical outcome? For the defamatory imputations in letters to the AMA and to a private indemnity insurer, there was a modest award to Dr Malouf of $20 000 in damages.

The Court of Appeal also expressed concern on the overall costs incurred, saying: “Further, it is apparent from the material before the Court that both parties bore some responsibility for the extraordinary length of the trial (29 days) which was not warranted on any rational analysis of the issues involved. It must have been apparent well before the trial was over (and perhaps before it started) that the costs incurred would far exceed any likely judgment, regardless of the vicissitudes of litigation.”

Despite that concern, both parties may have felt some vindication from the outcome. The decision has also served to clarify the law on who to alert about concerns regarding patient care.

Mr Bill Madden is the National Practice Group Leader, Medical Law, with Slater & Gordon.

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