A court has tossed out a deregistered endocrinologist’s claims against senior specialists who were expert witnesses in hearings that led to her being barred from medical practice.
Dr Shaheen Qasim brought claims in the NSW Supreme Court in 2021 naming 15 defendants including four specialist doctors, several legal practitioners and a former judge who were party to NSW Medical Council and tribunal hearings dating from 2010.
Dr Sara Bird, now manager of professional services at medicolegal advisers MDA National, was also targeted in the Supreme Court action by Dr Qasim, who represented herself in the matter.
Dr Qasim was suspended by the Medical Council in 2010 after concerns were raised by five endocrinologists from the Hunter New England Health region. She was deregistered in 2014 after the NSW Civil and Administrative Tribunal (NCAT) upheld five complaints against her, including one of psychiatric impairment, brought by the the NSW Health Care Complaints Commission.
It found she suffered from “a paranoid or delusional disorder which is of sufficient nature and degree to impair the practitioner’s mental capacity to practice the profession”.
In his decision on March 17, Justice David Davies cited legal principles of immunity for expert witnesses, barristers, and tribunal members named by the plaintiff.
He also ruled that Dr Qasim’s claims were “misconceived” on various counts and her objectives were unclear. For example, she sought damages against some individuals “but could not specify on what basis they ought to be ordered”.
While the proceedings shone some light on protections for witnesses under the law, it also exposed the stress on individual doctors caught up in legal matters.
After the verdict, endocrinologist Professor Joseph Proietto of Melbourne University, who provided expert evidence on Dr Qasim’s case work for the 2014 NCAT proceeding, told the limbic he had been “very concerned” to hear of the claim against him.
“I can tell you, if it wasn’t for the fact that the case was handled by Avant, I would have been terribly stressed unnecessarily by these proceedings. I knew they were taking care of the legal matters, so it wasn’t too bad,” the Professor Proietto said.
“If you didn’t have that sort of cover, I would never again accept a task to give an expert opinion on these matters.”
Professor Roger Smith, who was the lead author of a notification to the Medical Council in 2010 raising concerns about Dr Qasim’s professional performance and potential impairment, said he knew several doctors had been upset by the latest threat of legal action.
“Certainly, being called to the Supreme Court made people lose sleep and distressed them. It impacts them, it impacts their families and their work.”
Professor Smith, head of endocrinology at John Hunter Hospital at the time, said doctors were obliged to report matters where there was a risk to patient safety but they were uncertain about possible reprisals and ramifications.
“It’s interesting that the legal situation was unclear to lots of people,” he said, referring to the latest case.
He told the limbic he had involved his whole department in the 2010 notification decision in order to protect individual doctors.
“I decided to call together all the members of our department and consider the evidence before us of Dr Qasim’s practice and as a department, we all agreed that it was inappropriate. I thought that was a way of protecting the individual members of our department from legal and other difficulties”, he said.
“Of course, that meant I was exposing myself. I did not have direct contact with Dr Qasim or her patients. But I knew I could take the heat.”
Georgie Haysom, general manager of Advocacy, Education and Research at Avant, explained that it was a longstanding and established principle that witnesses would be immune from suit by a “disappointed litigant”.
“This means that if a party to proceedings is unhappy or disagrees with the evidence a witness gave in a case, they cannot sue the witness about that evidence, for example claiming that the evidence was incorrect, false or defamatory. This applies to all witnesses, including expert witnesses,” she said.
The rationale behind witness immunity is to allow witnesses to give evidence freely without the threat of legal action by a party to the proceedings, and to avoid multiple court actions where the evidence is considered over and over again, Ms Heysom explained.
The immunity extends beyond the words spoken in a courtroom to the steps “intimately connected with the giving of evidence in court”, such as preparing an affidavit.
“However, it does not prevent disciplinary proceedings if the witness’s evidence raises professional conduct issues and it does not prevent a witness being criminally prosecuted for perjury or contempt of court,” she added.