When is being Transparent Defamatory?

At times there is tremendous pressure on the government and a regulator to be transparent about possible incompetence or misconduct that undermines confidence in the health care system. Awaiting the end of the disciplinary process to comment may not be feasible. However, issuing public statements, particularly where an individual practitioner is identified, can have a devastating impact on the practitioner. In Tsatsi v College of Physicians and Surgeons, 2016 SKQB 389 the decision by the regulator, the Minister and the hospital to inform the public of apparent radiological misinterpretations and to reassure the public of the steps being taken to protect them resulted in a defamation lawsuit.

In that case the Court summarily dismissed the action on the grounds that there was a basis for the public statements (i.e., a peer review report) and that, even if the statements were not justified, the entities were protected by “qualified privilege” which protected them in the absence of malice. On the qualified privilege point the Court said:

In so deciding I am cognizant that Sunrise [the hospital] and McMorris in his capacity as Minister of Health owe their primary duties to the public. Even the College does not exist merely for the purpose of protecting members of the medical profession. Each of the defendants owed a duty to the public, and in particular, an obligation to safeguard the health and welfare of the people of this province and inform them when a potentially serious risk of misdiagnosis has been discovered. The court must therefore exercise caution in second guessing the manner in which this public duty was discharged. This is especially so where, as in this case, there was a factual basis for the impugned communications and each of the defendants was careful to relay only the facts as they understood them and the measures that they were implementing in response.

This case should not only provide assurance to regulators who feel that they must make a public statement (confidentiality provision permitting) on a troubling case, but can also provide guidance on how to do so in a way that minimizes the regulator’s risk of liability.

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