Constitutional Court clears Mater Dei Hospital of discrimination against obstetrician Naged Megally

The Constitutional Court has overturned a judgment which upheld claims of discrimination made by a disabled obstetrician, but noted the case “could have been handled much better.” 

Dr Naged Megally, who has been a wheelchair user ever since he was diagnosed with muscular dystrophy in 1986, had filed a case claiming that Prof. Yves Muscat Baron and then Mater Dei CEO Ivan Falzon had interrupted a 4D scan he was carrying out on a patient in July 2018 and manhandled him out of the room.

Megally, a candidate in the 2019 European elections for the far-right Patriots party, claimed he had been ordered to leave the room as Prof. Muscat Baron needed to use the equipment, and that he was taking too long to finish his work “because of his disability.” Megally, who requires assistance with mobility due to his disability, claimed to have been manhandled out of the room in front of his patient.

In June last year, the First Hall of the Civil Court found for Megally, ruling that he had suffered discriminatory treatment and ordered that he be immediately allowed to return to duty, also ordering the health ministry to pay the obstetrician €5,000 in compensation.

The Minister for Health and Celia Falzon, who had since become CEO of Mater Dei hospital, had subsequently filed an appeal.

The hospital argued in its appeal that from the testimony given by Muscat Baron before the court of first instance, it appeared that the events had not taken place in the manner described by Megally.

Muscat Baron had said that he had suggested to Megally that it would be quicker were the other doctor be allowed to finish seeing his ten patients before the plaintiff saw his three patients. Muscat Baron had told the lower court that Megally had been allocated a much smaller number of patients than his colleagues, and that he had assumed this was because it was necessary due to his disability.

The witness had also confirmed that after the incident in question happened, the number of patients on the applicant's list had increased substantially.

Celia Falzon disagreed with the first court’s findings, which had concluded that the hospital authorities had tried to dismiss Megally due to his disability. She argued that the evidence appeared to show that this discussion had been prompted solely by serious concerns based on a number of complaints from the plaintiff's patients regarding the performance of his duties.

In its judgment in Megally’s favour, the First Hall of the Civil Court had pointed out that the plaintiff was a specialist in foetal medicine with a career stretching back to 1993, noting that he had been working for 13 years as a resident specialist in Obstetrics and Gynaecology in the department of Obstetrics and Gynaecology at Mater Dei Hospital at the time the case was filed.

That decision has now been overturned by the Court of Appeal, presided by Chief Justice Mark Chetcuti together with judges Giannino Caruana Demajo and Anthony Ellul.

Megally contradicted himself

After reading the documents of the case, the Court said it could not find any evidence to corroborate the plaintiff’s account of events, “and on the contrary, it appears that in the course of these proceedings, this allegation was contradicted by the plaintiff himself.” 

Although Megally had claimed that the incident had taken place in the presence of a patient, the plaintiff's patient, who had testified both in court and also before the hospital’s internal inquiry, had made no mention of it and neither had any other patient come forward to confirm the plaintiff’s version of events.

“From the testimony given by Dr Lina Janulova, both during the inquiry and also during these procedures it turns out that the plaintiff’s allegation to have been forcefully taken out of the room is unfounded. She explained that she was present when the plaintiff left the room and that the plaintiff had done so with the help of porters who transferred him to his wheelchair.”

The judges also noted that although in his initial application, Megally had claimed to have been physically removed from the room, and not by the porters, this account had changed in his subsequent affidavit where he claimed that Muscat Baron had wanted him to be taken out of the room but that Megally had refused to leave before the porters arrived.

This meant that the first court had been wrong to consider as proven the plaintiff’s allegation that he had been violently removed from the room, the Constitutional Court said.

No intention to humiliate

The judges observed that from an examination of the acts it "absolutely does not appear that there was any intention to humiliate the plaintiff."

What emerged from the documents, said the court, was that when the incident in question occurred, a problem had arisen because one of the machines used for ultrasounds on pregnant women was out of order. The only working machine was being used by a doctor who had about 10 patients on his list, while the plaintiff, who had been using the now malfunctioning machine, had a total of four.

The court rejected the plaintiff's assertion that the fact that he had been seeing fewer patients than his colleagues at the time, demonstrated "systematic discrimination."

"It appears the situation had been like this for a number of years and during those years Megally had never complained nor clarified that he could see more patients than were being assigned to him. The obstetrician was not paid less than his colleagues as a consequence of this reduced workload," the court added, noting that his superiors, who had inherited this system where Megally was assigned fewer patients, were under the impression that this was due to his disability and had never confronted him about the number of patients he was seeing.

“Instead it seems that the situation had been accepted by everyone, including the plaintiff, without difficulty or complaint. In the view of this Court, all this shows that the hospital was taking steps to make the workplace more accessible for the plaintiff, and not that the plaintiff was subject to any systematic discrimination.”

On the day in question, the other doctor’s patients had been scheduled to have an anomaly scan, an examination that had to be carried out in a specific, short timeframe during the pregnancy, said the court, noting that it was imperative to avoid cancelling such appointments whenever possible.

“In the opinion of this Court in those particular circumstances the hospital was justified in its decision to give the plaintiff’s room to the other doctor, because it seems that this decision was taken in the best interests of the patients which is always the priority of the hospital and the doctors who work in it.”

Doctor should not have been ordered to leave room in front of patient

However, the judges noted that the situation “could have been handled much better”, stressing that Muscat Baron should not have ordered Megally to leave the room in front of a patient.

The professor’s indirect reference to Megally’s disability by pointing out that he took longer to examine his patients than the other doctor was “not aimed at humiliating the plaintiff or show any contempt towards him, but was intended only to explain why it was necessary for the plaintiff to give up the room… in the best interest of the patients so as not to cancel the appointments that the other doctor had on his list.”

In the circumstances, the court ruled that the incident at issue is not of the necessary severity to be considered as inhuman or degrading treatment, adding that the plaintiff's allegations about his treatment were not sufficiently proven.

Different treatment was proportionate

The plaintiff had never complained about the limited number of patients that his clinic would be assigned and therefore Falzon and Muscat Baron had been justified in their assumption that he needed more time to attend to patients than the other doctor, said the judges. 

“Even if it were to be accepted that the plaintiff had been treated differently due to his disability, the Court considers that such distinction in treatment was justified and proportionate in the circumstances of the case since the health and well-being of the patients is the priority of the Hospital's administration and of all the doctors who work there, including the plaintiff.”

The court also noted that the decision that the plaintiff be boarded out had not been based on his disability but on concerns about a number of serious mistakes on his part, including telling a patient whose ultrasound had flagged a tumour that she was fine in one case, and incorrectly telling another patient that she had lost her baby, which mistake had only been discovered just before she was operated on to remove the remnants of the pregnancy, in another. The court also pointed to errors in Megally’s reading of anomaly scans where patients were given information which was the direct opposite of that actually resulting from these scans.

The plaintiff had been suspended pending an investigation by the Medical Council into the serious allegations, and the first court should not have considered this suspension as proof of discrimination against him, said the judges. As those investigations were still ongoing, the court said it could not interfere with this process before its completion, “particularly since it does not even appear prima facie that this investigation is malicious and discriminatory.”

In light of all this, the Court declared the doctor’s claim to have suffered discrimination to be unfounded, and upheld the hospital’s appeal.