Defamation: Not What The Doctor Ordered

Introduction
How much do you value your reputation? Consider the impact on your career if it was damaged. Protecting one's good name is essential to those whose livelihoods depend on their personal and professional standing. No other group exemplifies this better than doctors. Pathologists, just as much as any other branch of medical specialisation, need to be jealous of their good esteem. A reputation that may have taken years to build can be destroyed in days by a slander or libel.

The 'targets culture' of the medical world and the trend towards performance-related assessment has produced a curious spin-off by way of a rise in related defamation claims. The increase in competition that such assessment provokes has resulted in greater pressure on clinicians and consequently more defamatory allegations being circulated as issues of funding and career development rest on subjective criteria that are almost impossible to measure in the objective way that such targets demand. At the same time doctors want to work in the interests of their patients and their careers without constantly having to worry about being sued for defamation.

All too frequently doctors feel powerless against such pressures and such attacks. But you can fight back. The defamation laws exist to protect your reputation and your ability to speak freely. Thanks to the increasing use of 'no win - no fee' agreements doctors are, at last, able to defend themselves. Protecting one's reputation, through the legal system if necessary, is no longer the exclusive domain of the rich.

Where Can The Threats To Your Reputation Come From?
The problem of defamation is increasing as the means of communication increase. A libellous allegation can be made by e-mail, memo, letter, report, article or on the internet; indeed, through any form of publication and the small and self-contained British medical community has forums at every level for potentially defamatory material to be published.

The threat can take a variety of forms depending on the circumstances and come from a variety of people. Aggrieved patients are often a source. For example, the parents of a child that died of a disease that was not diagnosed in time for treatment complained in a television programme about the care that their son had received from a number of GPs at the medical practice where he had been a patient. In response to the broadcast a notice was posted in the surgery reception area dismissing the allegations in respect of the practice and the parents of the child sued the GPs over the notice which they alleged defamed them.

Embittered ex-employees or staff can start a whispering campaign. Defamatory allegations concerning doctors can spread quickly, especially if they carry a whiff of malpractice or a juicy, salacious twist about the doctor's private life. In 2001, for instance, a GP was forced to dismiss one of the senior nurses from his clinic. In response the nurse wrote a defamatory letter alleging the doctor was unfit to practice and circulated it to many of his patients damaging his reputation in both the local NHS Trust and community. The doctor's patients list has still not recovered.

Colleagues can be relied upon to defame each other. In 1991 a GP called Dr Smith was awarded £50,000 for the slanderous allegation made by fellow GP Dr Houston in the waiting room of a surgery that they shared: Dr Houston had accused Dr Smith of groping both her and other female members of staff.

What Form Can The Damage Take?
In the post-Shipman climate the press pays increasing attention to allegations concerning medical practitioners. Newspapers and broadcasters can easily attempt to justify such intrusion on the grounds of social responsibility and public interest.

Local journalists, often short of anything newsworthy to report, are adept at turning half-truths into whole stories. Consider, for instance, how easy it is for a newspaper to misinterpret the conclusions of an autopsy report or a pathologist's investigation. Tight deadlines can often mean stories are not properly checked and the clinicians, including pathologists, get libelled.

Frequently the defamation is more prosaic. An anonymous letter can easily find its way to a local newspaper. In 1993, for example, a Dr. McLoughlin sued his colleague Dr Kells over his part in a ten-year campaign of anonymous hate mail to the media and potential backers to destroy his reputation and was awarded £85,000.

A similar instance of poor journalism that led to libel proceedings was a doctor's claim against his local newspaper which published untrue allegations that he had adopted a peremptory manner with one of his patients and told him that he was a drain on local resources. The newspaper had incorrectly picked-up on some statements made in court proceedings at the time and was later forced to acknowledge that they were untrue, withdraw the allegations, apologise and pay the doctor damages.

The national press is very good at picking up on local stories and giving them a wider circulation. For example, in 1990 a Dr. Grudzinskas sued the Daily Mirror over an article by Paul Foot that criticised his competence as a gynaecologist and won £25,000. In 1996 the Daily Mirror published three articles which alleged that a hospital consultant called Dr. Percy had failed to take sufficient steps to arrange for proper treatment of a patient whom, it said, died as a result. Following a trial the consultant was awarded £125,000.

Cosmetic surgery seems to attract defamatory allegations in particular. Four years ago the Sunday Mirror had to apologise and pay damages to a respected cosmetic surgeon following allegations concerning his general surgical competence. A year later the Observer also had to withdraw its allegations against a woman whom, it said, had knowingly recommended negligent surgeons to her clients. Again, an apology was printed and damages and legal costs paid out by the newspaper.

There is no escape for clinicians from the perils of libel at the other end of the scale either. The NHS is the single biggest employer in Western Europe. It is right that the press, as watchdog of society, takes an interest in its workings. However, the dry reporting of schemes, initiatives and waiting lists requires humanisation to enter the public consciousness. Press interest inevitably focuses on the individual doctors and managers involved. If you are running a hospital department you need to carefully monitor the reporting of it in the press.

Most journalists are not statisticians and the necessarily detailed analysis of figures and listings does not make good copy. This can quickly lead to misrepresentation in the media and if it is not dealt with quickly can have a serious impact on funding.

In such circumstances managers and clinicians will often turn to the hospital's in-house PR department or its external communications agency. However, these teams are funded by the hospital trusts and will be forced to act in their interests, often to the detriment of the individual professional's reputation. For instance, a hospital department may be the subject of media scrutiny with the head of the department used as a focus. In such cases the individual may feel compelled to take action to protect his or her personal and professional reputation.

In 2003 an honorary consultant in reproductive medicine and a senior lecturer in obstetrics and gynaecology sued the St. George's NHS Trust. The trust's medical director had given an interview which had received a great deal of national and international media coverage. In the interview the medical director had inadvertently suggested that the consultant was responsible for events that led to the subsequent closure of her unit. The libel proceedings settled with a statement in open court in which the trust apologised for the personal and professional distress it had caused the consultant. The trust also paid the consultant's legal costs and damages.

In such situations the trust is a nebulous body and so criticism will not etch its way onto the public memory in the same way as it does when it is focused on an individual.

Unsurprisingly, this view is attractive to trusts with funding constraints. It is, after all, difficult to sustain an argument for protecting the reputation of a trust in the face of a simplistic comparison between the cost of litigation and the new equipment that such budgets could be spent on. Meanwhile, it is the individuals working within the organisations whose reputations and careers suffer most. Frequently a conflict of interest will arise leaving the doctor or manager exposed.

Like any other large workplace, hospital departments are also subject to their fair share of internal politics. This is another area that frequently generates libellous allegations between members of staff that can have serious repercussions on careers and livelihoods. In 1995, for instance, a gynaecologist at the Doncaster Royal Infirmary called Dr. Giwa-Osagie sued two midwives in his hospital who had alleged sexual assault, on one occasion in a lift and on another in front of a patient. As a result of the midwives' complaints the doctor had been suspended from duty as a registrar. At trial the jury awarded the doctor a total of £45,000 in damages.

Within the hothouse atmosphere of a hospital department practitioners frequently defame each other over issues of competence, breaches of standards and derelictions of duty. For example, in 2002 two respected medical professors at Queen Mary and Westfield College were sued by a fellow lecturer and skin cancer specialist over the content of a defamatory letter which she maintained they had written. The allegations contained in the letter were that the doctor had breached ethical standards by transferring patients' DNA samples without their consent to a commercial company in which she had a personal financial interest.

Pathologists, in particular, deal in areas where differences of opinion and interpretation are part of the fabric of their working lives and can, therefore, expose themselves to the risk of inadvertently defaming someone. Examples abound: An autopsy will require you to interpret the facts and state your opinion. In other instances you may be required to provide a commentary on an investigation or piece of research. Speculative conclusions that overstep the mark or that infer a poor decision or lack of judgment by a third party could expose you to a libel claim. Despite the pressures of time and lack of resources you must be prepared to back up everything you publish. Whilst this sounds obvious consider those occasions where it might be more difficult than it appears. Pressure can be put on pathologists if their diagnosis is not what the clinician wants. As budgetary constraints increase in many departments there is a growing trend for pathologists towards generalism and 'hybridisation'. In these circumstances you may be called upon to offer conclusions in areas that you may not feel as confident as you would like. Where there may be points of disagreement you should make a clear distinction between statements of fact and comment. It can be a thin line between the responsible reporting of concerns you may have and defaming someone. The highest libel award in recent years concerned a report produced by a local authority review team that wrongfully accused two nursery nurses of child abuse. Each of the nurses was awarded £200,000. Despite the risks of defamation you should not be inhibited or constrained in expressing your conclusions and the libel laws will protect many of the formal circumstances in which a pathologist must publish their work through the defence of qualified privilege.

Alongside the risk of defamation is the associated risk of unlawful disclosure of private information. This is a rapidly developing area of the law and could be the subject of another article. However, in addition to being concerned with what they write pathologists need to be sensitive to who may read the reports that they publish. A recent illustration of the problem concerned a consultant forensic psychiatrist who wrongly thought she had obtained her patient's consent to refer and publish her medico-legal report. The patient maintained that consent had not been provided and sued the psychiatrist for defamation and the breach of her privacy.

More and more people are using the GMC complaints procedure to vent their frustration over the way they have been treated. There is a constant flow of stories concerning clinicians' inappropriate or unprofessional behaviour or cases of practitioners' abusing their position or not acting in the best interests of their patients. Pathologists, in particular, are undergoing increased scrutiny by the GMC's 'Fitness to Practice' Panel. Rulings by the GMC can quickly find their way into newspapers. In the hands of a journalist who is not sensitive to the nuances of such rulings or is unfamiliar with the background to the particular complaint the resulting story can easily libel the clinician involved. Thankfully the GMC is becoming more aware of the press's propensity for mis-reporting their findings and has begun to take steps to mitigate this. In a recent case over a post mortem examination report involving the consultant histopathologist Dr. Alan Williams, the determination by the GMC opened with, "I wish to emphasise, on behalf of the panel, to the complainant, to the press and to the public that the Panel's determination is not concerned with why or how C and HC died". Such attempts at clarification do not always stop the problem of misreporting.

In 2003 a local newspaper reported on allegations put to a Dr. Towfiq Sharif at a GMC Hearing. The allegations concerned staff at the doctor's surgery who were not medically qualified and who were supposed to have been dispensing medication to patients. The doctor denied the allegations and the GMC did not find any of them to be proven. Shortly after the GMC had vindicated the doctor a local newspaper published the allegations directly to the community from which the majority of the doctor's patients were drawn. The newspaper subsequently accepted that the article was inaccurate and paid Dr Towfiq Sharif £10,000 in damages and his legal costs together with the publication of an apology.

Often it can be simple journalistic techniques that defame the medical practitioner by inference rather than straightforward allegation. To make a story more interesting newspapers will frequently libel a doctor by association. The use of unnecessary analogies such as, "Shipman-like", or, "as dangerous as Shipman". In two articles in 2000 the Sun libelled a former paediatric nurse called Elaine Chase, in part, by references to Harold Shipman and 'the Angel of Death' Beverley Allitt in the article. As a result the court awarded Ms Chase over £100,000 in damages. The damage to reputation is not just a question of what is written. The use of carefully laid-out photographs can suggest an association even when the text makes no reference to such. Relatively minor misdemeanours by doctors can be blown out of all proportion by the use of such common journalistic techniques. Doctors sometimes make the mistake, however, of thinking that because the allegations were not made directly they do not have a cause of complaint. They do.

What Can You Do About It?
Medical practitioners at every level are becoming increasingly aware of the potential risks that their reputations are under and the value in taking steps to protect those reputations. Unfortunately, they are being met by a lack of support. The main insurers do not cover defamation claims. The Medical Defence Union, for instance, stopped funding defamation claims after a case concerning two doctors collapsed with outstanding costs of over £2 million that the Union had to pick up.

The various medical professionals' unions also take the view that libel claims are not worth supporting in the same way as employment tribunal proceedings or other forms of litigation that safeguard their members. Professional bodies are similarly reluctant having been scared off by the cost of protecting their members from this form of attack. In 1990, for example, a cosmetic surgery nurse supported by the Royal College of Nursing sued the News of the World following an article that accused her of negligence in the course of cosmetic surgery. She lost the case and the RCN had to pay both her costs and those of the newspaper.

Doctors are now able to fight back themselves. The over-riding deterrent against trying to clear your name has been the debilitating cost of litigation. However, those who think they have been defamed are now able to get legal representation on a 'no win - no fee' basis regardless of their income. Indeed, the largest award ever given by a court to a case brought on a 'no win - no fee basis' was for a thoracic surgeon called Dr. Joe Rahamim who successfully sued Channel 4 and ITN and was awarded £175,000.

The basis of 'no win - no fee' litigation is that if the client does not win the case he/she does not have to pay their solicitor's fees (or their barrister's fees if they also act on this basis). If the client does win the case he/she will normally have their legal costs paid for by their opponent.

In essence the 'no win - no fee' scheme of litigation provides access to legal advice for medical practitioners who, in the past, were not able to protect their reputation.

If you are the subject of libellous allegations you should take action as soon as you become aware that the allegations are going to be published or have been published. The complexities of libel make it essential to get legal advice from specialist practitioners as early as possible. It is usually the case that the publisher who has libelled you should agree to pay your legal costs and, depending upon the seriousness of the allegations, a further payment in compensation for the damage to your reputation. The level of compensation will depend very much on the extent of the damage caused.

If you have caused a defamatory allegation to be published for whatever reason you should also seek legal advice quickly. Speed of response is critical: An apology published while the allegations are still in the readers' minds will have far more impact than something published weeks or months later. For an apology to offer any form of mitigation it should be made quickly. There are often ways to rectify any damage caused to a reputation.

Conclusion
The potential for libellous claims within the pressured culture of clinical governance and continuous audit is mounting all the time. In our increasingly litigious society doctors are already overburdened by threats of claims for misconduct, mismanagement and malpractice. So why should you have to worry about yet another threat to your career? The answer is simply that your livelihood depends upon your reputation.

In the relatively small worlds of medical specialisms it is disconcerting how rumours can dog a career if not challenged appropriately. Allegations can harden in people's memory until they are indistinguishable from truth. Clinicians who have been libelled are put in an invidious position. If they do not take steps to obtain an apology or clarification that the allegations are false it can look as though they have accepted the truth of them. On the other side of the fence it can be all too easy to inadvertently libel another medical practitioner in the course of your work either directly or by inference.

The introduction of 'no win - no fee' funding for libel litigation is providing medical practitioners with access to legal expertise to help them combat the damage that can be caused by libel and slander. As the forums for communication increase so do the risks of damage to your reputation. On whichever side you may become involved in defamation seek advice quickly. To do otherwise may seriously damage your health.

Magnus Boyd
The Magazine of the Association of Clinical Pathologists