Dr Gerard Panting answers questions on libel proceedings and what to say when the press asks you to comment on a case
Q Following a patient complaint, a local newspaper has pilloried me. They have taken everything said by the patient as absolutely true and I have had no chance to defend myself. Can I sue them?
A Yes, of course you can sue, but whether it’s a wise thing to do is another matter altogether. Libel proceedings are long-winded and expensive and usually very difficult.
You cannot simply sue because the reporting has been unkind to you; the article must be defamatory. That means, first of all, the statements complained about must be untrue and injure your reputation. However, clearing this hurdle is not the end of the story.
There are a number of defences to defamation claims. First, and rather obviously, the statements were in fact true (which does not appear to be the case here) and second, justification, which simply requires that the paper believed that the statements were true at the time of publication, even if they were subsequently shown to be false.
Even if the legal arguments are in your favour, it still may not be to your advantage to sue the paper. Newspapers are notoriously reluctant to admit that they have got anything wrong and so tend to wage war (or litigation) by attrition, hoping to wear the claimant down.
There is also the expense. Libel proceedings are extraordinarily expensive, and although in English law the loser pays the winner’s costs, that rarely comes close to all that has been spent. It can easily be tens of thousands of pounds short of what the claimant has had to pay his or her own legal team.
An additional consideration in libel cases is that the other side will go digging for dirt, so the publicity surrounding any trial (should it come to that) can be more damaging than the original article. By that time, most people will have forgotten what it said anyway.
So from a practical point of view, suing for libel is not an option in many cases.
Q Do indemnity organisations help doctors with libel proceedings?
A Not all indemnity organisations will assist doctors with defamation proceedings. However, MPS will do so if they are merited. As a discretionary organisation, MPS has the freedom to help with any issue arising from professional practice and that does sometimes include defamation proceedings, as the following case illustrates.
The Daily Mirror agreed to a settlement for substantial damages plus costs to a GP. The newspaper agreed to print an apology on an equivalent page of the issue dated Friday, 24 January 2003. The apology stated:
In an article entitled ‘Girl scarred for life after GP blunder’ published on 26 September 2001, we stated that Dr X had wrongly removed a lump on a five year old girl’s head which would not have happened if the diagnosis had been correct. These statements are wrong. We accept that the action taken and treatment prescribed by Dr X were correct and this was confirmed by the Convenor of the North Essex Health Authority after a thorough investigation. We wish to apologise to Dr X and are pleased to set the record straight. We have agreed to pay him damages for the harm he has suffered and his legal costs.
Q If I can’t sue for libel, is there anything else I can do to set the record straight?
A You can complain to the Press Complaints Commission (PCC), an independent body that deals with complaints made by the public about the contents of newspapers and magazines.
Newspapers and magazines are meant to adhere to the PCC’s code of practice, which provides the framework against which complaints from the public can be addressed.
The code addresses issues such as accuracy, an opportunity (rather than a right) to reply, privacy, harassment, intrusion into grief or shock, children, children in sex cases, hospitals, reporting crime and payment to criminals.
As far as accuracy is concerned, the code requires that the press “must take care not to publish inaccurate, misleading or distorted information, including pictures”. However, if this does happen, a correction should be promptly published with due prominence and, if appropriate, an apology. The problem here is the degree of journalistic licence allowed in the definition of “inaccurate, misleading or distorted”.
That leads on to the problem with the opportunity to reply. It is one thing to say a fair opportunity for replying to inaccuracies must be given when reasonably called for, but if you cannot agree that something was inaccurate in the first place that opportunity does not arise.
As far as hospitals are concerned, the code requires journalists to identify themselves and obtain permission from a responsible executive before entering a non-public area of a hospital or similar institution to pursue enquiries. It goes on to say “the restrictions on intruding into privacy are particularly relevant to individuals in hospital or similar institutions”. Unfortunately, the code does not refer at all to the concept of medical confidentiality.
The declared aim of the PCC is to deal as quickly as possible with any complaint raising a possible breach of the code of practice. Of the 3649 complaints received in 2003, only 23 resulted in the Commission having to adjudicate. Any adjudication that is critical of a newspaper must be published in full with due prominence by the publication concerned.
Certainly, there is nothing to be lost by a complaint to the PCC, although it may not be possible to achieve an adequate remedy.
Q I was approached by a local newspaper about an elderly patient who had been sent home by the local A&E department in the early hours of the morning. They wanted to know a lot of medical detail, which I did not feel I could provide. The paper said that I “had been contacted but refused to comment” and went on to imply that I was really trying to stick up for the hospital, which clearly I was not.
A These are always difficult situations – the journalist wants to ensure that the story has maximum impact, so a medical slant on how dangerous the situation was for your patient would have been a boon. Secondly, a local GP condemning the care provided by the local hospital is good contentious copy, quite possibly destined for the front page. This pressure on the journalist is likely to result in a pressurising style when it comes to procuring the all-important information and quotes.
The difficulty for doctors (whether the subject of criticism or not) is that the rules of professional confidence still apply. Without the patient’s consent, disclosing confidential medical details cannot be justified. Even when consent is given, the pages of the local newspaper are not the forum to discuss the pros and cons of an individual patient’s clinical management or the local hospital discharge policy.
More often than not, however, there is no patient consent and so you can say very little.
In these circumstances, it would seem legitimate to say that the issues raised are very serious and should therefore be pursued with the hospital, so that the full facts can be established, but until then it is impossible to make any substantive comment.
The second point to make is that this patient, like every other patient, is entitled to have her confidentiality respected and therefore it is inappropriate to divulge details of her medical history to the newspaper.
Now, after the event, you can if you want write to the newspaper, making the points set out above and also saying that any implication that you agree to discharging elderly patients from A&E in the early hours of the morning is totally wrong but that until the facts of this particular case are established it is unhelpful to speculate about what happened.