An orthopaedic surgeon who settled a libel action against BUPA, Britain's biggest private health insurer, in May is to fight BUPA's application for a permanent injunction banning him from commenting publicly on the issues surrounding the case.
David Johnson, a Bristol surgeon with a private practice specialising in knee problems, sued BUPA for libel, alleging that in letters to patients and GPs the insurer accused him of overcharging. But the case was settled out of court just hours before the hearing was due to start.
BUPA obtained an interim injunction against Mr Johnson after early editions of the London Evening Standard reported what the paper believed to be details of the confidential settlement. The story was removed after the second edition. The insurer also obtained an injunction against the publishers of Hospital Doctor, which had put the story on its front page. Some 6000-7000 copies had already gone out, and the publication had to pulp most copies and reprint with a new front page.
The injunction also prevents the BMJ from disclosing details of the settlement. But since hundreds of thousands of Londoners have seen the story, an application to lift the injunction might be successful on the basis that the details are already in the public domain.
Mr Johnson claimed in his libel action that the letters from BUPA to local GPs and patients were defamatory and caused him to lose income. He argued that the letters suggested he charged above BUPA's benefit maximums, which were “fair, reasonable and customary,” and that he failed to warn patients of this in advance.
The surgeon was set to argue in the High Court case that BUPA allowed higher rates for some surgeons and that higher payments were possible under some corporate schemes, so the rates could not be described as “customary.” BUPA itself guaranteed a 10% “bonus” to those who signed up to their consultant partnership scheme and charged within the maximums. Mr Johnson said BUPA's rates had not risen since 1992. (See p 120.)
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David Johnson: pledged to fight injunction