New libel threat for heart doc over BBC Today comments

Eminent British cardiologist Dr Peter Wilmshurst is facing a fresh UK libel threat over comments originally made in the US in 2007 about the effectiveness of a surgical treatment.

The Wilmshurst case has become a cause célèbre for those who want to reform the UK libel system because he is facing potential financial ruin over comments about a medical procedure which campaigners argue were self-evidently in the public interest.

His comments about the Starflex device – used to treat heart defects – were originally reported on a US website, but Wilmshurst is being sued by NMT Medical – the device manufacturer – in the UK courts because the story was read and reported in this country. The litigation is still at the pre-trial stage.

NMT Medical, which is based in the US, is now threatening further libel action against Wilmshurst over comments he made on Radio 4’s Today programme on 27 November, 2009.

In that interview he voiced concerns that he felt the full results of a trial of the StarFlex device had not been publicised.

Barrys, the solicitors represnting NMT Medical in the UK, state in their letter to Wilmshurst: ‘The words spoken by Dr Wilmshurst meant, and were understood to mean, that the results of two of three checks carried out on the Starflex device had been unscrupulously concealed by NMT because they were less complimentary of the Starflex device.

‘Those words were untrue and defamatory and were calculate to disparage our client in its business.”

The US company is demanding an apology, costs, damages and a statement in open court.

In response, Wilmshurst’s lawyer – Mark Lewis from Taylor Hampton – said in a letter to Barrys that the latest libel threat amounted to ‘legal bullying to try and stop our client from speaking out about the abusive way that legal threats are being used by your client to stop honest criticism”.

Defending Wilmshurst’s comments, Lewis said: ‘Our client commented honestly about the fact that he was being sued and his defence to the claim. The latest threat is just another attempt to bully our client into withdrawing his defence to the previous action you have started.”

Lewis told Press Gazette that this case, if it reached trial, could lead to potentially crippling costs of more than £2m per side. He is defending Wilmshurst on a no win, no fee basis.

He said: ‘If medical researchers can’t speak out about this product because they are afraid of getting sued then you have a real risk of self-censorship. This extends to medical journals, the BMJ is pulling more articles because it can’t afford to fight these cases.”

In April this year science writer Simon Singh won his long-running legal battle against the British Chiropractic Association which brought a libel action against him after he questioned some of the medical claims made about the alternative medical procedure in a comment piece for The Guardian.

Despite being the victor, Singh said he would still be left £60,000 out of pocket because of the high cost of defending the case.

So far more than 50,000 people have signed the Libel Reform Campaign petition, which is urging the Government to reform UK libel laws.

The Coalition Government has pledged to table proposals for a libel reform bill in March next year.

Announcing the proposed bill earlier this year justice minister Lord McNally said: ‘We recognise the concerns raised in recent months about the detrimental effects that the current law may be having on freedom of expression – particularly in relation to academic and scientific debate, the work of non-governmental organisations and investigative journalism.

“In reviewing the law we want to focus on ensuring that freedom of speech and academic debate are protected and a fair balance is struck between freedom of expression and the protection of reputation.”

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