Concerns about adequacy of medical treatment & defamation

Prince v Malouf [2014] NSWCA 12 is an interesting joint decision of the New South Wales Court of Appeal published today.

In March 2006 Dr Prince sent a series of letters to persons involved in various capacities in the administration of the hospital and one sent to a number of patients on the hospital’s ENT waiting list. The letters referred, among other things, to concerns as to the post-operative care of patients on whom the hospital was proposing Dr Malouf should conduct surgery (as part of a waiting list clearance plan). Dr Prince also sent copies of the letters to officers of the insurance fund providing insurance cover for public hospitals, to his professional indemnity insurer and to the Australian Medical Association.

The Court of Appeal judgment deals with defamation proceedings brought by Dr Malouf against Dr Prince, which were partly successful (relating to the publication to the private indemnity insurer and the AMA). Damages were awarded in the sum of $20,000. The judgment considers the availability of a defence of common law qualified privilege and whether there was malice.

Dr Prince asserted he had both a legal and a moral duty to send the letter to patients on the ENT waiting list to inform them of his concerns about potential risks to their health and welfare arising from the follow-up care proposed to be provided by Dr Malouf and the hospital., The following passage discussing that assertion is of particular interest:

165  As to the asserted moral duty, Dr Prince submitted that it would be expected by those of ordinary intelligence and moral principle (using the terminology in Mowlds v Ferguson [1940] HCA 38; (1940) 64 CLR 206 at 220) that he would inform the patients on the ENT waiting list, with whom he had a pre-existing relationship and to whom he had given advice in relation to the recommended surgery and explanation as to the post-operative care he would provide, of the changed state of affairs with respect to post-operative care in circumstances where he had a genuine concern that this gave rise to a risk of harm.
166 Dr Prince’s submissions should be accepted. As a matter of public policy, it was in the general interests of the whole community, that qualified privilege should attach to the occasion of such a communication, given that the recipients of the letter were still Dr Prince’s patients. The defamatory statements were sufficiently connected to the occasion of qualified privilege as to fall within the scope of the defence.