Case study: When social media and the press question your skills or conduct

Mr Wozniak* contacted his medicolegal consultant (MLC) for advice in relation to an open inquest case. He had performed a knee operation on a local footballer some months earlier. The surgery went smoothly, but the patient subsequently died as a result of a massive pulmonary embolism.

Mr Wozniak had received advice from his MLC regarding his statement for the Coroner. He had also received confirmation that the Trust’s legal team would represent him on the day, and he felt comfortable with the process of giving evidence. However, he had recently seen several untrue and derogatory comments regarding his surgical skills on social media. 

Inquests are open hearings, and it is not unusual for journalists to be present, particularly if the deceased was well-known or the cause of death is deemed ‘newsworthy’. Doctors should be cautious in responding to any request for information, as the duty of confidentiality continues after death. The Medical Protection press office is available to provide advice on dealings with the media.

Unfortunately, it is not uncommon for doctors to be the subject of negative material posted on social media. Such comments can be deeply upsetting, both personally and professionally, but regulatory requirements mean that doctors are restricted in terms of how they can respond. It is important for a doctor to consider what further steps could be taken and the pros and cons of each. 

The Defamation Act 2013 sets out the requirements for a claim in defamation and they include:

1. The statement that is published needs to be defamatory in that it would lower the doctor in the estimation of a reasonable person and would cause (or is likely to cause) serious harm to their reputation.

2. Identification – the doctor needs to be identifiable from the post(s)

3. Meaning - the law of defamation recognises two types of meaning the ordinary meaning of the words used, and innuendo.

4. Serious harm - Section 1 of the Act outlines that a statement will not be defamatory unless its publication has caused or is likely to cause serious harm to the person’s reputation.

In past cases which have come before the courts the threshold for establishing serious harm has been very high and required substantial evidence to show that serious harm had or was likely to occur.

The courts consider the following in deciding if serious harm has or is likely to occur:

(d) The position of the author

It is generally the case that comments on social media about a doctor are overall of little interest to the public. However, pursuit of a defamation claim may in itself attract media interest, thereby opening up the posts to a wider audience. In general, actions in defamation can cause more harm to a person’s reputation than the original comments. Moreover, such defamation cases are notoriously difficult to win.

Doctors involved in matters that are likely to attract press attention should be mindful of their duty of confidentiality. This duty continues even after death. Medical Protection’s press office is available to support doctors approached by a journalist in relation to a case.

If a doctor is the subject of negative comments on social media, doing nothing and allowing the interest in the matter to dissipate is often the best approach. Contacting the social media platform to ask for the offending content to be deleted may also be successful, particularly if the approach is made by the Trust on behalf of the individual doctor. 

It is only in limited circumstances that Medical Protection would advise pursuing an action in defamation.