Healthy Skepticism Library item: 17170

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Publication type: news

Ungoed-Thomas J, Swinford S
Doctor fears ruin by libel from NMT Medical
The Sunday Times 2010 Feb 14
http://www.timesonline.co.uk/tol/news/world/us_and_americas/article7026331.ece

Full text:

A British doctor who is being sued for libel by an American medical company fears financial ruin even if he wins the case.

Dr Peter Wilmshurst was sued by a Boston company, NMT Medical, after he claimed a medical trial involving one of their products was seriously flawed.

It has now emerged that NMT Medical is refusing to pay money into court to guarantee his costs if he wins the case, which are likely to exceed £500,000. The case is one of several that campaigners say have highlighted Britain’s ruinous and draconian libel laws.

Wilmshurst, a consultant cardiologist at the Royal Shrewsbury hospital, said he risked bankruptcy if his costs were not recovered. “It’s outrageous,” he said. “The libel courts seem designed to prevent free speech.”

Wilmshurst’s case has already notched up defence costs of about £280,000. These are expected at least to double if the case goes to trial.

NMT Medical initially agreed to pay some funds into court to cover Wilmshurst’s costs if he won. It is now refusing to provide any further money, citing a legal case which ruled that demanding a surety for costs from a foreign claimant could breach the European Convention on Human Rights.

Mark Lewis, Wilmshurst’s lawyer, said any unpaid costs could be pursued through the American courts. He was, however, concerned that new American laws to make British libel judgments unenforceable in some states might jeopardise any bid to recover libel costs.

“Peter now faces the invidious prospect of having to defend himself with the risk that he will never recover his costs. This is a bullying tactic,” he said.

NMT Medical says it will pay any costs it is required to and there is no need for a surety. However, Lewis has made a legal application for a surety and wants as much as £500,000 paid into court.

Wilmshurst, described by the British Medical Journal as a “champion whistleblower”, has been a long-standing critic of the often opaque financial relationships between medical companies and doctors.

He was one of the doctors involved in an NMT Medical trial in the UK in 2005 and 2006. It was trying to establish whether an implant that repaired a hole in the heart might also prevent migraines, because of an association between the two conditions.

The study found that it did not cure migraines but Wilmshurst also challenged the data in a way that questioned the effectiveness of the NMT product, Starflex, for preventing leakages in the heart. The company says that Wilmshurst effectively accused it of research fraud and that it had to defend its reputation.

Wilmshurst was sued after he detailed his concerns at a cardiology conference in Washington in 2007. His comments were published on an American website.

Britain’s libel laws are now under close scrutiny after concerns that they have been used to stifle scientific debate and intimidate critics. Jack Straw, the justice secretary, has appointed an expert panel, which includes John Witherow, the editor of The Sunday Times, to review the issue.

MPs hit out

An influential Commons committee is expected to warn that British lawyers are touting for business overseas so the rich and powerful can take advantage of the UK’s lax libel laws, writes Marie Woolf.

The culture, media and sport committee is expected to criticise lawyers for promoting “libel tourism” and to call for higher hurdles to be imposed before a libel case can be brought. It is expected to say that some foreign figures are almost unknown here and therefore have no reputation to defend in the UK.

The MPs believe that litigants should not be able to sue for libel if the publication is not widely available in the UK.

The report is also expected to call for greater protection for scientists and doctors against companies using libel laws to silence legitimate scrutiny.