Legal update - Damages of £45,000 were awarded to a doctor in respect of a Daily Mail newspaper article found to be defamatory

17 November 2014

A Spanish GP based in the United Kingdom, Dr. Jose Antonio Serrano Garcia, was awarded damages of £45,000 following his libel action against the Daily Mail.

Dr. Serrano brought proceedings in the High Court following the publication of an article in the Daily Mail by Kelvin McKenzie entitled “A whole year of hell, thanks to a foreign doctor”. In his article Mr. Mackenzie suggested that Dr. Serrano Garcia had misdiagnosed bus driver Mr. Kevin Jones as alcohol dependent without any further tests or medical evidence in support and subsequently reported him to the DVLA who  revoked his driving licence. Mr. Jones claimed that he had told Dr. Serrano that he was just a “social drinker” but that due to a “language barrier” he had misunderstood him.

The Daily Mail raised defences of justification and honest comment.
In a judgment handed down on 10 June 2014 at the Royal Courts of Justice (Garcia v Associated Newspapers [2014] EWHC 3137 (QB)) Mr. Justice Dingemans held that the article bore the following five defamatory meanings:

  1. “Mr. Jones suffered a nightmare when he wanted treatment for swollen legs because Dr. Serrano had written to the DVLA to have Mr. Jones’ licence revoked for persistent abuse of alcohol when it was wrong and inappropriate to do so: (1) because Dr. Serrano had been told that Mr. Jones might have a pint or two after work, and a couple of spirits if he went out with his wife and friends at the weekend; (2)because of the language barrier Dr. Serrano had wrongly understood that Mr. Jones drank that amount every night and then refused to listen; and (3) without any research into whether Mr. Jones persistently abused alcohol such as liver or blood tests, and without any other evidence whatsoever. The DVLA had relied on Dr. Serrano’s report and revoked Mr. Jones bus and personal driving licences.”
  2. “Dr. Serrano reported Mr. Jones to the DVLA and it was wrong and inappropriate to do so because it was a breach of patient confidentiality.”
  3. “Dr. Serrano unreasonably refused to persuade the DVLA to revoke its decision in circumstances where blood, liver and kidney tests, when carried out by another doctor, showed that Mr. Jones did not persistently abuse alcohol, and where tests subsequently carried out by an independent doctor brought in by the DVLA showed no trace of persistent abuse of alcohol“.
  4. “Dr. Serrano pretended not to be able to talk about Mr. Jones’ complaints on the basis of patient confidentiality, when an appropriate consent form had been sent through“.
  5. “Dr. Serrano’s conduct was shocking“.

None of the defamatory meanings were found to be true.

In relation to the first defamatory meaning the Judge held that:

  • Dr. Serrano was not told at the consultation that Mr. Jones might have a pint or two after work, and a couple of spirits if he went out with his wife at weekends.
  • Dr. Serrano was told that Mr. Jones would drink half a bottle of Bacardi at night on some nights.
  • Dr. Serrano had not misunderstood that Mr. Jones drank that amount every night, and his contemporaneous notes show that.
  • There was no language barrier.
  • Dr. Serrano had not refused to listen to Mr. Jones. Dr. Serrano had carried out relevant research into Mr. Jones persistent abuse of alcohol by looking at his previous reports of excessive drinking in 2006 and 2008, and by noting his elevated Gamma GT readings, and by diagnosing gout which had been caused by excessive alcohol intake.There was considerable evidence to justify Dr. Serrano’s actions.
  • In these circumstances it was not wrong and inappropriate for Dr. Serrano to write to the DVLA.

In relation to the second defamatory meaning, the Judge held that Dr. Serrano was entitled to report Mr. Jones to DVLA and it was not wrong or inappropriate for him to do so.

In relation to the third defamatory meaning, the Judge held that Dr. Serrano did not unreasonably refuse to persuade the DVLA to revoke its decision, which the Judge found to have been a correct and sound decision.

In relation to the fourth defamatory meaning, the Judge found that Dr. Serrano was genuinely and properly concerned about patient confidentiality.

Finally, the statement that Dr. Serrano’s conduct was “shocking”  was comment but was based on statements of fact which were not privileged and had not been shown to be true (or sufficiently true).

The Judge did note that there were relevant omissions made by Dr. Serrano in his letter dated 11 February 2011 sent to the DVLA, but that this findings did not satisfy the provisions of section 5 of the Defamation Act. This is because there are important differences between being wrongly accused of reporting someone without evidence to show persistent abuse of alcohol on the one hand, and it being said that the reporting letter, which was properly sent, should have contained more information. 

The Judge accepted Dr. Serrano’s evidence as to the effect of the article on him and that his resignation was in part influenced by the article but refused to make an award of aggravated damages on the basis that he found that the defence of justification had been properly raised and in good faith.

By Kristina Morgan, Paralegal, Dispute Resolution

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