Scalpels out in surgeon legal battle twist

A top orthopaedic surgeon’s defamation case against a colleague who allegedly called him a “random serial killer” has taken a stunning turn.

Dr Elie Khoury’s defamation case against Dr David Kirwan has taken a turn.

There’s an old joke among the medical fraternity.

Q. What’s the difference between a God and a surgeon?

A. God doesn’t believe he’s a surgeon.

It’s a cheeky jab at the perceived egotism — the so-called God complex — of those in the profession. But for many surgeons, reputation is king.

So what happens when someone allegedly seeks to ruin that reputation?

The question is set to be played out in Victoria’s Supreme Court as a bitter defamation stoush involving two warring orthopaedic surgeons heats up.

Elie Khoury, an Albury and Melbourne-based surgeon, last year sued rival hip and knee specialist David Kirwan for allegedly mounting a “campaign of vilification” against Dr Khoury in which he claimed he was responsible for multiple patient deaths and labelled him a “random serial killer”.

Dr Khoury claims the vendetta poisoned his colleagues and patients against him and sought to have his medical licence revoked.

In turn, Dr Kirwan claims the defamation case is a “smokescreen” and he had a “moral or ethical duty” to inform fellow medicos of his concerns about Dr Khoury.

But the trial, due to begin in August, took a stunning turn last week as Dr Khoury was found guilty of contempt of court.

Dr Khoury admitted he’d instructed his partner to forward confidential emails authored by a third orthopaedic surgeon — Dr Jeremy Kolt — to the head of a private hospital in Albury.

The consequences of that leak, Supreme Court judge John Dixon found, were serious and the battle lines have now been drawn in the fractured medical community that stretches across the Victoria-NSW border.

The scalpels are out.

CASE SPARKED BY NAME-CALLING

Dr David Kirwan.

‘He’s killed another one,” Dr Kirwan allegedly remarked to an anaesthetist in an Albury operating theatre in July 2019.

The statement was in reference to an elderly patient of Dr Khoury’s who had died in hospital after undergoing a bilateral knee replacement days earlier.

Dr Kirwan allegedly repeated the remark to three more doctors in a tea room in November that year.

Dr Khoury claims these weren’t the only times Dr Kirwan had made such comments to fellow physicians.

In 2012, Dr Kirwan allegedly emailed seven local anaesthetists criticising Dr Khoury’s practice, labelling it “orthopaedic misadventure”.

Dr Kirwan would allegedly go on to accuse Dr Khoury in 2016 of torturing a 90-year-old World War II veteran and urge the hospital to notify police of an “attempted murder”.

Court documents allege Dr Kirwan had described Dr Khoury, among other things, as a “sociopath”, “a corrupt grub surgeon” and “a black c---” to another orthopaedic surgeon.

Dr Khoury claims that when the pair came face-to-face at a medical conference in Noosa in 2017, Dr Kirwan stormed past him and his partner, knocking their baby’s pram in the process.

Dr Khoury alleges Dr Kirwan’s antipathy towards him was sparked by his refusal to partner him in private practice in Albury in 2008.

EMAILS AT CENTRE OF DEFAMATION CASE

In the ensuing years, Dr Kirwan allegedly reported his concerns about Dr Khoury to the Albury Wodonga Private Hospital, the Health Care Complaints Commissioner and the Chairman of Ramsay Health’s Medical Advisory Committee.

The pair’s animosity was well known in the Albury medical community, Dr Khoury alleges. Emails sent by Dr Kirwan between July and November 2019, some with as many as 23 recipients across Victoria and NSW, form the basis of Dr Khoury’s defamation case.

Dr Jeremy Kolt.

Several emails were also sent to local orthopaedic surgeon Dr Kolt – then acting chair of the Medical Advisory Committee at Albury Wodonga Private Hospital where Dr Khoury had practised since 1999.

“You must keep your position safe. It is important,” Dr Kirwan allegedly wrote to Dr Kolt on November 3, 2019.

“You are acting on the inside, I am on the outside. This will be a two-pronged attack, and we will need it,” he continued.

The two exchanged numerous emails in which they discussed surgical incidents which resulted in the death or injury of patients at the hospital.

They also discussed payments made by Ramsay Health – which runs AWPH – to Dr Khoury which they believed were “bribes”.

“I am in a real bind here. I need to maintain my position as … committee chair so I can continue to have access to high level and sensitive/confidential material. It’s a strategic position,” Dr Kolt allegedly wrote to Dr Kirwan.

‘UNSATISFACTORY’ INVESTIGATION CLAIM

In October 2019, restrictions were placed on Dr Khoury’s medical accreditation following an independent review by Ramsay Health. These were lifted in August 2020.

Dr Khoury believed Dr Kirwan and Dr Kolt were responsible for the review, the court heard last month. More so, he believed Dr Kolt had breached his obligations of confidentiality by leaking details of Dr Khoury’s patients — details that Dr Kolt could only have known through his role as acting chair of the medical advisory committee at the hospital.

Dr Khoury asked Ramsay to investigate the matter, but was “unsatisfied” with its response, the court heard. By March last year, he had filed his defamation suit.

As part of their case, Dr Khoury’s legal team ordered Dr Kolt — who is not a party to the defamation — to hand over a further 77 emails. When Dr Khoury began to read the emails, he felt sick.

“I read about a quarter of them, I couldn’t stomach more than that,” he told his contempt hearing last month.

“Honestly, I was pretty angry. I was really angry … I didn’t form a view on anything except the vile nature of what was going on between two people (Dr Kolt and Dr Kirwan) that were professionals,” he said.

Justice Dixon, in his contempt ruling, said he was satisfied Dr Khoury was looking for vindication.

“Khoury wanted Ramsay Health to see that his complaint in late 2019, that Kolt had breached confidence, had been correct,” Justice Dixon said.

DR KHOURY FOUND IN CONTEMPT

On July 30 last year, Dr Khoury called his partner, Jessica Nowell, in a flurry.

He was in the middle of a busy surgical list, he said, and had just spoken to the CEO of AWPH, Sheryl Kier. He told Ms Nowell to “send the emails” to Ms Kier.

He testified he was referring to emails contained in the publicly available statement of claim, not the subpoenaed material.

Dr Khoury with his partner, Jessica Nowell.

Ms Nowell claimed she misunderstood her partner’s request and instead sent the 77 subpoenaed emails from Dr Kolt.

Doing so meant she was in breach of a legal undertaking which prevents subpoenaed material being used for any purpose other than the case for which they were compelled.

Days after receiving the emails, Ms Kier forwarded them to Ramsay Health’s legal department.

A week later, Australia’s largest private hospital operator was drafting a ‘show cause notice’ to Dr Kolt as to why his accreditation to treat patients at the hospital should not be cancelled.

In the witness box, Ms Kier denied the subpoenaed emails were the sole purpose for issuing Dr Kolt with the disciplinary notice, recounting a bizarre episode that occurred in the thick of the state’s coronavirus pandemic.

“I’ve had some issues with Dr Kolt,” she told the court.

Ms Kier revealed Dr Kolt had been signing into the hospital under the name of ‘Prince Andrew’ — a British monarch who has been linked to convicted sex offender Jeffrey Epstein.

“I was concerned that he was operating in isolation,” Ms Kier continued.

“There were fractures within the medical community and I could not get him to come and talk with me at all about anything.”

The show cause notice was later withdrawn.

Dr Kolt and Dr Kirwan both launched contempt of court proceedings, seeking Dr Khoury and Ms Nowell be punished for disclosing the material.

Dr Khoury and Ms Nowell had argued the breach was accidental and unintended.

Judge Dixon rejected this and lambasted Dr Khoury’s demeanour in the witness box as “pugnacious” and his evidence unreliable.

The parties will return to court next month to argue if any punishment should be imposed. The Herald Sun understands Dr Khoury and Ms Nowell are appealing the judgment.

The defamation trial is set to begin in August.

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