NMT libel case intensifies for cardiologist

By Pallab Ghosh
Science correspondent, BBC News

image captionDr Wilmshurst made comments on the BBC's Today programme

A US medical devices company has threatened to step up its libel action against a consultant cardiologist who criticised its clinical trials.

NMT Medical is suing Dr Peter Wilmshurst, who practises at the Royal Shrewsbury Hospital, over remarks he made on BBC Radio 4's Today programme.

NMT says he has accused the company of research fraud, which it denies.

Dr Wilmshurst says he was engaging in scientific argument and court is not the place to settle these issues.

Those campaigning for libel reform have condemned the action and said this case is the latest example of large organisations using English libel laws to suppress what they regard as legitimate scientific discussion.

Editors of some of the UK's scientific journals have told BBC News they have withdrawn what they regard as perfectly good articles, unrelated to the case against Dr Wilmshurst, for fear of libel action.

NMT's dispute with Dr Wilmshurst began three years ago when he made remarks about the conduct of clinical trials of one of NMT's products, a device to treat migraine, at a medical conference held in the US.

Those comments were reported on a US website.

London action

NMT is suing Dr Wilmshurst for libel in the London courts on the basis of the article. Neither the journalist nor the US website were sued.

NMT has said: "This is not a case where libel laws are being used to stifle scientific debate.

"Dr Wilmshurst is not being sued because of any scientific views that he holds, but because he has accused NMT, of research fraud, an allegation which NMT contend is untrue and was made by Dr Wilmshurst in bad faith."

The latest dispute is in relation to statements made last year by Mr Wilmshurst on BBC Radio 4's Today programme.

NMT alleges that they were "to the effect that NMT sought to conceal his review of data (which is not the case). NMT intend to seek to add this as a further instance of alleged serious defamation.

"Dr Wilmshurst used the occasion to publish his accusations on a prime time radio broadcast.

"NMT argue that he did this, knowing that his allegations of concealment were untrue."

The company could pursue a separate action over the Today programme comments or add it to the existing action.

Dr Wilmshurst says he was engaging in a scientific argument: "We're discussing the science, the experiments that are being done, the procedures that were done, and these can be verified. They are a matter of fact.

"So I don't see why the courts should be involved, really, dealing with scientific arguments".

Singh case

Dr Wilmshurst also said that fellow scientists had been put off speaking about their concerns about medical research after seeing what had happened to him.

image captionThe legal dispute over comments on research is ongoing

"I know other people who have, as a result of this, decided not to speak out about things that concern them in medical research.

"Because where the industry was concerned, they've seen what's happened to me in the past three years and decided it's probably best to keep quiet and just go along with what they are asked to do and asked to say."

Dr Wilmshurst's case is similar in some ways to that of Simon Singh's which was heard in the High Court last year.

Dr Singh was being sued by the British Chiropractic Association because of comments he had made about the effectiveness of chiropractic treatments.

He won an appeal that would have allowed him to use the fair comment defence in the case, which led to the case against him being dropped.

Dr Singh believes that his case and the case against Dr Wilmshurst demonstrate that libel laws need to be reformed: "The way science progresses is through debate and argument and robust discussion.

"If (the threat of) libel chills that debate, it stymies scientific progress.

"It also affects what the public are allowed to read. So the public only gets half the story when it comes to issues of major public interest."

Journal constraint

The Libel Reform Campaign is asking the government to incorporate a public interest defence that it claims would safeguard legitimate discussions about research results.

Tracey Brown, director of the campaign group Sense About Science, among the groups campaigning for change, says many scientific debates are effectively being suppressed.

She said: "When Simon Singh's case came publicly prominent, many medical publishers had contacted us to say it was fairly standard practice for them to be contacted by lawyers or to be advised by their own lawyers not to publish something or not to go ahead with a particular commentary, perhaps around the conduct of research, because of fear of libel action."

Dr Philip Campbell, editor in chief of one of the world's leading scientific journals, Nature, told BBC News his journals have on occasion been "forced to dilute stories, and to not tell readers what we consider to be essential parts of a story, purely as a result of English legal constraints that would not apply under, say, US law".

"We have abandoned stories altogether on a very few occasions over the last year."

Dr Fiona Godlee, editor in chief of the British Medical Journal, says staff there are "very exercised by the risk of being sued. Threats of legal action are not uncommon - I would say we get five or six substantive threats per year.

"Probably three or four times in the past five years we have decided not to publish articles submitted to the journal.

"Much more frequently we decide not to publish rapid responses/letters on legal advice, and to take down rapid responses after publication, though we are always reluctant to do this."

Dr Evan Harris, one of the conveners of the Libel Reform Campaign, said: "There has to be more protection for the right of the public to hear and for the right of clinicians and scientists to discuss with each other, in the scientific tradition, often in robust terms, criticisms of other people's work."

Some experts, however, believe that the current legislation provides sufficient protection for journalists to write and publish articles that are fair comment and are in the public interest.

According to Professor Gavin Phillipson, a law professor at Durham University: "Changes to the libel law in recent years have benefited journalists.

"English law used to be much worse. It now strikes a reasonable balance between free speech and the rights of the individual."

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