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Kurt Sansone
It has been a long-drawn out affair. Since 2002 MaltaToday has been locked in a court dispute with former Labour MP Louis Buhagiar.
The latter claimed he was defamed by an article that sought to throw a spotlight on the investigations carried out by British medical insurance companies over allegations that some Maltese doctors were overcharging their foreign patients.
And to nobody’s surprise, Judge Philip Sciberras, in front of whom the appeal filed by MaltaToday was heard, decreed that the first court’s judgement had to stand.
Judge Sciberras turned down the arguments raised by MaltaToday and confirmed the damages awarded by Magistrate Dennis Montebello in the first instant to the tune of Lm4,000 .
This is the highest amount ever awarded for damages in Maltese libel history and it has set a dangerous precedent for future cases involving the media. It seriously risks compromising the media’s freedom.
But both the first judgement and its subsequent confirmation by Judge Sciberras raise a number of questions.
In confirming the damages awarded, Judge Sciberras based his argumentation on the direct and indirect impact the contested news story had on Prof. Buhagiar’s professional and political career.
Judge Sciberras cited Prof. Buhagiar’s own court testimony, in which he said that foreign insurance companies had not paid him as a consequence of the story, as proof of the negative “direct” impact MaltaToday’s report had on Buhagiar’s professional career.
It must be noted that Prof. Buhagiar never submitted his income tax returns in court to substantiate claims that he lost revenue deriving from foreign insurance companies.
Furthermore, the evidence given by two top officials of the health department confirms that foreign insurance companies had met the Maltese authorities in April 2002, almost a month before the story deemed libellous by Prof. Buhagiar appeared in the newspaper. During their Malta visit, the UK insurance representatives had raised the issue of excessive fees charged by some Maltese doctors with the health department.
It was long before MaltaToday started writing about doctors’ excessive fees that UK insurance agencies were already questioning some of the bills their clients were being handed down by Maltese doctors, including Prof. Buhagiar.
In August 2002, MaltaToday had revealed how in 2000, a foreigner living in Malta had written to the Maltese health authorities questioning the bills his mother received from St Luke’s Hospital, Capua Hospital and Prof. Louis Buhagiar.
In the letter dated 11 May 2000, the foreigner asked: “I would like to know if these health and care service prices are normal practices here in Malta because my insurance company seems to put question marks on this matter.”
In this case, MaltaToday had also published the bill charged by Prof. Buhagiar to the tune of Lm800. The consultant’s fee was billed at a rate of Lm110 per day.
MaltaToday had also published the tariff guidelines drawn up by BUPA and the Medical Association, which stipulated a maximum tariff of Lm60 per day for hospital attendance.
But the BUPA tariffs, which are supposed to serve as guidelines, do not seem to have been given their due importance as was the fact that Prof. Buhagiar had long been in the spotlight for charging excessive fees.
The spotlight on Prof. Buhagiar’s fees had been lit by the various patients and insurance agencies that came in contact with the former parliamentary secretary. In January 2002, four months before MaltaToday published the contested article, the Small Claims Tribunal had revised downwards the fee charged by Prof. Buhagiar in the case of a terminally ill Maltese patient. The tribunal deemed the doctor’s fee as being “excessive”.
But for the courts, this case was of “little relevance” since the patient concerned was Maltese and not a foreigner.
All that MaltaToday did in May 2002, when the contested article was published, was to continue bringing the spotlight that had long been lit in private circles, out in the public domain. Both The Times and il-mument, weeks before the contested article appeared in MaltaToday had given prominence to another case involving a British patient treated at St Luke’s Hospital by Prof. Buhagiar and who had alleged that she was charged excessive fees.
Furthermore, Judge Sciberras declined the argument made by MaltaToday that in the report published on 5 May the only charge that could have been attributed to Prof. Buhagiar was that of excessive fees.
The report had revealed two things: foreign patients were purposely and unethically being hospitalised in private hospitals by some doctors, who would then be able to charge high fees and the second issue was the excessive fees themselves which were the subject of a probe by UK insurance companies.
Judge Sciberras refuted the argument raised by the newspaper that Prof. Buhagiar could only be linked to the second issue dealt with in the report, that of excessive fees, even if all the stories about Prof. Buhagiar written prior and after May spoke solely of excessive fees.
The Judge said the story had to be viewed as a whole and therefore Prof. Buhagiar was linked to both the accusations of unethical behaviour and excessive fees.
The court of appeal reaffirmed the original decision that MaltaToday did not provide enough proof to substantiate its claims.
The fact that the Medical Council never found Prof. Buhagiar in breach of professional ethics was cited by the court of appeal as a justifiable argument in Prof. Buhagiar’s defence.
No consideration was given to the fact that the only reason why the Medical Council never investigated Prof. Buhagiar was because the complaints were not made according to law. Despite numerous reports filed with the Maltese health authorities by UK insurance agencies and the subsequent referral of these reports to the Medical Council by the director of institutional health Dr John Cachia, the 43-year-old law regulating the Medical Council makes it compulsory for complaints to be filed in writing by the patients themselves.
In awarding damages Judge Sciberras also cited the negative impact the MaltaToday report had on Prof. Buhagiar’s political career. In April 2003, a full seven months after MaltaToday stopped writing about Prof. Buhagiar, the former MP was not elected on the fifth electoral district in the general election.
The real reason behind Prof. Buhagiar’s non-election was an internal Labour Party decision for Dr George Vella to give up his seat on the third electoral district instead of the fifth. Prof. Buhagiar would have been next in line to be elected in a by-election had Vella vacated the fifth district as he had done in 1998.
And Prof. Buhagiar’s political career had also been compromised by his decision to vote with the Nationalists in favour of the impeachment of judge Depasquale in parliament, going against his own party’s line.
Nonetheless, the appeals court confirmed the original decision of the magistrate’s court condemning MaltaToday editor Saviour Balzan and journalist Kurt Sansone to pay Prof. Buhagiar the global sum of Lm4,000.
Meanwhile, in MaltaToday November 2005, Prof. Buhagiar was again in the limelight when the chief executive of St Philips Hospital, Dr Frank Portelli claimed that Prof. Buhagiar’s income from medical fees between 2000 and 2002 is likely to have tallied some half a million liri.
Dr Frank Portelli asked the Speaker of the House of Representatives to investigate Prof. Buhagiar’s financial declarations as an MP, a request turned down by the Speaker who said such an investigation was not in his remit.
Buhagiar served as a Labour parliamentary secretary between 1996 and 1998, and as an MP until 2003.
Buhagiar was suspended from St Philip’s Hospital – according to Dr Frank Portelli he had brought the private hospital into disrepute.
ksansone@mediatoday.com.mt
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