May 15, 2014

GP criticised over death of patient has £15,000 libel claim against Mail Online struck out

By William Turvill and Press Association

A GP has failed in a bid to sue the Mail Online for defamation over allegations he claimed would not have been published if he was "white".

Dr Atef Halim Wissa was claiming £15,000 for an article alleging that he was one of three doctors who had not realised a patient, who later died, had a "tumour the size of a tennis ball".

In a claim form, lodged in January and seen by Press Gazette, Wissa said Mail Online had published claims about him "to sensationalise… and to encourage racial baiting".

In the claim, Wissa said he would rely on "the racial abuse opined by readers on the website as evidence of the [Mail Online] causing or permitting to be caused racial abuse and suggestion that [he] was incompetent as a result of his foreign sounding name".

Wissa, who was criticised in a report for the General Medical Council, complained that the article, published last June, alleged that his diagnosis of Chris Buckley, 34, "was wrong and has no rational clinical basis thereby causing the unnecessary death of the patient”.

He also said the article suggested that the GMC had found the treatment he gave was inadequate and that he was "incompetent as a general practitioner thereby fuelling the unjustified criticism faced by doctors from foreign countries or ethnic background". The GMC conducted an investigation into the case, and eventually concluded that no further action needed to be taken.

But it told Wissa and another doctor who treated Buckley that they should reflect on the findings of independent expert Dr Leonard Peter, who had concluded in his report that the treatment the two gave Mr Buckley fell "seriously below that expected of a reasonably competent GP".

The claim was struck out yesterday by Mr Justice Tugendhat on the grounds that Wissa had failed to specify which allegations in the article he was complaining about. The High Court also ruled that neither of the versions of the article which he complained about bore the defamatory meaning he alleged.

Wissa, who practices at the Robert Frew Medical centre in the Wickham area of Essex, was being represented by Taylor Wood Solicitors.

Associated Newspapers applied for the case to be struck out, arguing Wissa’s claim failed to specify the exact words complained of, that the article it published did not contain the words complained of, and that even if the words complained of had been published they were not capable of bearing the claimed defamatory meanings.

Tugendhat said Wissa had produced a number of print-outs of the article, including one from the Newlookup.com website, and some from the Mail Online site.

He said that in a claim for libel it was necessary for a claimant to set out word for word precisely those words which he alleged defamed him, whether that was the whole of the text or an extract.

"The Defendant needs to know exactly what words are complained of in a long article, so that it can frame its defence appropriately," the judge said.

In addition, the Particulars of Claim contained words which did not appear in the print-outs supplied with the claim.

Tugendhat said: "It entirely defeats the function of a statement of case if there should be that degree of uncertainty as to the precise words allegedly published by the defendant and complained of as a libel."

Tugendhat said neither version of the article before the court was capable of bearing the meaning that it was the GMC which concluded that the standard of care was below that of a reasonably competent GP. A reasonable reader who read the whole article could not fail to understand that that was the opinion of Dr Leonard Peter.

He added: "If the claimant were to ask for permission to amend I would be minded to give him an opportunity to do so, notwithstanding that the defendant's solicitors have already given him ample opportunity in the correspondence, which the claimant's solicitors have chosen to ignore.

"But if such an opportunity is given, the claimant must make clear which version of the article he is complaining of, and set out word for word the precise words he complains of."

Striking the case out, the judge added: "In considering what action to take following the handing down of this judgment, the claimant (and any reader of this judgment) will note that I have held that the defendant has not alleged that the GMC concluded that the claimant's care was inadequate or incompetent. His reputation needs no vindication from an allegation that has not been made."