Lawyers for celebrated surgeon say he can’t be held responsible for patients’ pain

Lawyers for celebrated surgeon Munjed Al Muderis have suggested he cannot be held solely responsible if his patients suffer infections or pain post-surgery.

Al Muderis is suing The Age, The Sydney Morning Herald and 60 Minutes over reports published and broadcast in September 2022.

Investigative journalist Charlotte Grieve arrives at the Federal Court of Australia to give evidence.Credit: Dion Georgopoulos

He alleges the reports convey a range of defamatory meanings, including that he negligently performed osseointegration surgery and provided inadequate aftercare. Osseointegration surgery involves inserting titanium pins into the residual bone of an amputated limb to enable a prosthetic to be connected.

One of the authors of the stories, Charlotte Grieve, an investigative journalist for The Age and The Sydney Morning Herald, has defended the depth and fairness of her reporting as she was cross-examined for a third day in the Federal Court in Sydney by Al Muderis’ barrister, Sue Chrysanthou, SC.

On Thursday, the legal team for the prominent surgeon spent hours grilling Grieve on the credibility of sources who featured in a series of stories, including a nurse who worked for Al Muderis, and several of his past patients.

Chrysanthou put to Grieve that a multidisciplinary team, including a pain specialist and an anesthetist, was responsible for prescribing drugs, particularly painkillers, to osseointegration patients post-surgery.

But Grieve told the court while she accepted Al Muderis had worked in collaboration with a multidisciplinary team, he still had a responsibility for his patients.

“That’s what other surgeons have described as their role and their duty to me,” Grieve said. “Once you perform an operation on the patient … you are responsible for that patient and how they deal with the consequences of that surgery for the rest of their life.”

Al Muderis’ legal team also made a fresh bid for Grieve to reveal the names of two confidential medical sources used in her reporting. This request was rejected by the reporter, who declined to reveal their identities on journalistic privilege and ethical grounds.

Later in the hearing, Chrysanthou accused Grieve of forming a view she was going to stop Al Muderis from operating on people, months before the first of a series of stories examining his medical practice had even been published.

“It was your intent to use stories ... to malign my client, such that, he wouldn’t be able to conduct any more osseointegration surgery,” Chrysanthou said.

Surgeon Munjed Al Muderis (left) and barrister Sue Chrysanthou, SC, at the Federal Court in Sydney last year.Credit: Steven Siewert

“No,” Grieve replied.

Chrysanthou asked whether former nurse Shona Stewart, who was used as a source in Grieve’s reporting on Al Muderis, had breached her professional duties by providing a journalist with several patients’ personal details via text message.

“You understood, didn’t you? That she hadn’t got permission. She was blurting out names to you,” Chrysanthou asked Grieve.

Grieve rejected the accusation.

She said that when she had contacted one of Al Muderis’ patients, Rowena Mattiske, whose details Stewart had given to her, the woman was expecting her call and had already consented to her details being passed on.

The court heard last year that Mattiske had undergone repeated surgeries including osseointegration and had complained to Al Muderis that she had become largely confined to her chair and that her pain had worsened.

“She [Stewart] was providing information she thought was in the public interest,” Grieve said.

Chrysanthou asked Grieve if she held concerns about Stewart’s credibility and reliability where Stewart was willing to “freely engage in such breaches of confidence”.

Grieve disagreed, saying it increased the nurse’s credibility because it added more evidence and weight to mounting allegations about Al Muderis that she had been told during her research into the surgeon.

“I was asking her to provide information that supported what she said, and she was doing that, so if anything, it increased her credibility in my view,” Grieve said.

“The information that we used in the publications was only with the consent of the patients thenselves.”

The defamation trial later heard Stewart had previously had a sexual relationship with Al Muderis and the pair had stayed in contact, with the nurse’s grandmother undergoing knee surgery with him in 2019.

Documents tendered to the court show Stewart worked with Al Muderis between 2015 and 2018.

The court was told Stewart had also made admissions to Grieve there had been an expectation she illegally forged medical scripts for pain medication for patients when she worked for Al Muderis.

Chrysanthou questioned why allegations about forged scripts did not make it into the published articles.

“I want to suggest had you believed that was a credible allegation, you would have pursued it,” Chrysanthou said.

However, Grieve told the court there had been “so many serious allegations” raised about Al Muderis by then – including that he was “cutting corners and acting unethically” – that the claim related to scripts did not stand out as one that most warranted further investigation at the time.

Nine, the owner of the media outlets being sued by Al Muderis, is seeking to rely on a range of defences including a new public interest defence, truth and honest opinion.

During the months-long defamation trial, 60 Minutes reporter Tom Steinfort and producer Natalie Clancy will give evidence in coming days.

The defamation trial continues.

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