A DEFAMATION case involving Albury surgeons could be heard by the Supreme Court of Victoria in Wodonga.
Elie Khoury is taking action against David Kirwan, alleging the fellow orthopaedic specialist damaged his reputation via two statements and 12 emails in 2019.
They involve comments made by Dr Kirwan to other medicos about Dr Khoury's treatment of patients which the latter operated on.
The statement of claim alleges that Dr Kirwan implied Dr Khoury was a serial killer, had acted in a criminal manner and was corrupt in addition to a range of other suggestions.
Dr Khoury's barristers state Dr Kirwan had a reputation for hostility towards their client.
"It was well-known in the Albury medical community that the defendant had previously displayed animosity towards the plaintiff and had engaged in a campaign of vilification against him in order to injure the plaintiff's reputation over a number of years," the claim reads.
Dr Khoury is seeking aggravated damages, a permanent injunction to restrain Dr Kirwan publishing material and interest and costs.
In a defence lodged with the Supreme Court, Dr Kirwan's law firm rejects various allegations and imputations cited by Dr Khoury.
It also points to qualified privilege and honest opinion as defences for Dr Kirwan's statements.
In relation to the former, Dr Kirwan felt he had a duty to inform fellow medicos about Dr Khoury.
It is argued "recipients had an interest in the subject matters as medical practitioners responsible for patient care, safety and wellbeing in the public interest or in the management and licensing of the hospitals in which the plaintiff performed surgeries".
Dr Kirwan's lawyer posits honest opinion on the basis his client relied on "proper material" and his views were on "matters of public interest of patient care, safety and wellbeing and the management and licensing of the hospitals in which the plaintiff performed surgeries".
Dr Kirwan had sought the case be transferred from the Supreme Court in Victoria to its NSW counterpart, on the basis the issues at the heart of the case arose in Albury.
However, Victorian Supreme Court judicial registrar Julie Clayton ruled on Thursday the matter should stay in the Garden State.
"The 'nuts and bolts' of case management in the Supreme Court of Victoria would mean that, given the facts in this case, there is a real prospect that the matter will be listed for trial in Wodonga during the annual Supreme Court of Victoria circuit there," Ms Clayton said.
"Having considered the principles and the facts of this case, I am not persuaded that it in the interests of justice to transfer the proceeding."
They include him having to undertake bilateral total knee replacement operations in a public hospital only and providing a record of all such procedures he has done to the Medical Council of NSW at the end of each month.
That material needs to include patient details and outline any complications such as "any unplanned return to theatre and/or any post-operative infection".
Dr Khoury previously conducted such surgery at Albury Wodonga Private Hospital which is operated by the company Ramsay Health Care.
That firm conducted an investigation of Dr Khoury's status following a complaint and he was stopped from doing bilateral joint replacements.
That edict has now been lifted after an independent review, however Ramsay no longer performs bilateral joint replacements at that hospital without the consent of the site's chief executive.
Ramsay is aware of AHPRA conditions on Dr Khoury and it "confirmed that he will not undertake bilateral joint replacements at the hospital".
Litton Legal, which represents Dr Khoury, stated its client was subject to a complaint via surgeon David Kirwan, and it led to the review that saw him "required, by law, to self-report his restrictions by Ramsay Healthcare (sic) to the Medical Council of NSW and AHPRA", resulting in AHPRA imposing the conditions upon him.
"Dr Khoury is now in the process of having those restrictions removed which takes time and often several months," it stated.
"As such, to suggest that Dr Khoury has restrictions on his practice which are as a result of wrongdoing is false and misleading."
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