LEGAL RISKS FACING HEALTHCARE PROVIDERS

Legal Risks Facing Healthcare Providers



Legal Risks Facing Healthcare Providers

Defamation actions are time consuming and complex. The costs associated with defending an action more often than not significantly outweigh any damage sustained. The litigation can also lead to negative publicity for all involved.

In order to be defamed, a person(s) ('the Plaintiff') must be identified in a publication issued by or on behalf of another ('the Defendant'). The Plaintiff can be identified by name, title, photograph or other description. Generalisations about groups of people are usually insufficient (e.g. all employees at a particular hospital) though a broad reference to a smaller group may be sufficient (e.g. the physiotherapists at a particular hospital), which also means that you can defame several persons with the one reference. Organisations with more than 10 employees cannot sue for defamation.

In order to be defamed, there must first be a publication communicated by one person to at least one other person, apart from the person defamed. The publication can be in any medium of communication - radio, photograph, newspaper, television broadcast or internet. The publication must also convey the defamatory meaning (referred to as an imputation) which can arise from the literal meaning of the words, reading between the lines or a combination of what is stated and what persons already know.

The most common form of defamatory publication is actually the republication of defamatory statements made by someone else. The second publisher of the defamatory statement can be just as liable as the first author of the statement. Quantum of damages is linked to the number of people to whom the defamatory statement has been published.

An imputation is considered defamatory if it tends to lower a person's reputation, lead others to think less of the person, make others shun or avoid the person or cause others to ridicule hate or despise the person. Damage to reputation is the basis of any defamation action.

A number of defences can be raised to a defamation action and a defendant is not limited to just one. These include:

justification/truth - where the defendant proves the defamatory imputations to be substantially true;

contextual truth - where the defendant can come up with his/her own defamatory meaning which is equally as serious and prove it to be true;

qualified privilege - which applies to a statement made by a person who has a duty to do so, ...