Is it ever justified for doctors to sue their patients?
A central tenet of medical ethics is ‘to first do no harm’ to patients (non-maleficence). A recent legal case upheld the view that, in some circumstances, patients waiver their rights to this obligation by their doctor.
Dr Al Muderis is an orthopaedic surgeon who has been decorated in Australia for his charity work, involvement in the Australian Defence Forces, and cutting-edge medical innovations in osseointegration technology. In March 2010, he performed a hip arthroscopy on a private patient, Mr Mazzella, which resulted in a claim of adverse outcomes, including numbness in the penis and loss of sexual function. The claims, based on a supposition of pudendal nerve injury, were never proven. The patient’s injuries were judged to be related to lifestyle issues and pre-existing conditions for which he had received a pre-operative warning by Dr Al Muderis.
The vindictiveness of the patient was such that the following attempts were made for retribution:
- . Civil case of medical negligence
Proceedings were commenced in the New South Wales Court for medical negligence against Dr Al Muderis. Mr Mazzella’s case involved a long drawn-out affair, with non-compliance of orders for expert witnesses and vacating of multiple hearing dates, all at significant emotional and financial cost to the doctor. The action was dismissed and the patient was ordered to pay costs.
- Disciplinary complaint
The patient subsequently lodged an unsuccessful complaint with the Health Care Complaints Commission, claiming that the doctor’s skill and judgment was below standard.
- Frequent direct approaches to Dr Al Muderis
The patient contacted the doctor on multiple occasions, with specific threats that he would not leave Dr Al Muderis alone until he received ‘the explanation he sought’ for his injuries.
- Online harassment
The patient and his brother created websites, YouTube media, Facebook pages, and publications in Pinterest and Dailymotion under different names, dedicated to harassing, menacing and offending the doctor. Examples found included, ‘… as a surgeon butchers his patients’ and ‘… is a low and disgusting monster who mutilates his patients’ genitalia’. There were even published threats to cut off the doctor’s penis and kill him. In the initial phase of the online activity, the matter brought a conviction against the patient for the offences of intimidation and using a carriage service to harass, including an authorised violence order (AVO). This did not halt the patient’s online defamatory, menacing and intimidating behaviour.
Six years of harassment culminated in a successful defamation action against the patient, with an award of damages to the doctor for A$480,000. The consolation was for personal distress and hurt, reparation of the business reputation and the doctor’s personal reputation.
It seems that the increasing use of doctor rating websites is welcomed by patients, who rely on them to inform their views about doctors’ reputations. However, online presence of rating sites creates vulnerability for medical practitioners. The potential harms from false or malicious accounts to reputation, in the emotional sphere of childbirth, are likely to be heightened. There are examples in the USA and South Africa where doctors have sued their patients following negative reviews posted online. For the most part, it would be unethical for a healthcare practitioner to pursue legal action against a patient, since it is in conflict with the obligation of non-maleficence. However, defamation action by Dr Al Muderis, to protect himself and his family, is entirely justified as a last resort to halt the threats and intimidation by the vindictive patient.
Freckleton cautions us to consider the pragmatic advice of many lawyers before suing a patient for reputational damage. Such a legal response may initiate the ‘Streisand effect’, that is, ‘it will generate more publicity and interest in the offensive publication than it would otherwise receive’ by ignoring it.