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The Federal Court has been shown raw footage of a former soldier taking a kitchen knife to his leg and hacking excess skin from his amputation site, during the high-stakes defamation case brought by prominent surgeon Munjed Al Muderis against Nine.
Al Muderis is suing The Age, The Sydney Morning Herald and 60 Minutes over reports published and aired in September 2022. He alleges the reports convey a range of defamatory meanings, including that he negligently performed osseointegration surgery and provided inadequate aftercare.
Brennan Smith with his dog Archie near his house in Brisbane last year.Credit: Glenn Hunt
Nine, owner of the media outlets, is seeking to rely on a range of defences including a new public interest defence, truth and honest opinion.
Former soldier Brennan Smith underwent osseointegration – a procedure in which titanium pins are inserted into bone, allowing prosthetic limbs to be connected – performed by Al Muderis.
In an affidavit, Smith said he had experienced pain from the site of the osseointegration for years after the procedure.
Footage aired on 60 Minutes showed Smith cutting an area of skin on his leg with a kitchen knife. Dr Matt Collins, KC, acting for the news outlets, said Smith cut skin from the site as often as twice a week because the skin felt like it was burning, and it prevented him from sleeping.
Surgeon Munjed Al Muderis at the Federal Court in Sydney on Monday.Credit: Dion Georgopoulos
Under cross-examination, Al Muderis alleged the program had an “extremely malicious” intention in airing the allegations, and said hypergranulation, or excess skin, near Smith’s operation site was “objectively” confined to a tiny area.
“There is no justification of a patient to take his own kitchen knife and operate on himself in a toilet,” Al Muderis said. “That’s inappropriate. I mean, there are clinicians that can do that.”
Collins asked Al Muderis whether he considered Smith’s surgery to be a success given Smith’s ongoing problems with pain and hypergranulation – skin that forms beyond the surface of the surgically created opening.
“Identifying success is very difficult because a patient may be highly functional and return back to mobility, which he didn’t have before the surgery, but still unhappy with his pain and unhappy with certain aspects,” Al Muderis replied.
“I don’t know if that’s failure or success. There are facts and there are feelings. Factually speaking, Mr Smith is highly mobile, highly active, [and] doing CrossFit. [He’s] returned back to his activity and mobility, while he was wheelchair-bound beforehand.”
Al Muderis was quizzed about another patient, Mary Heffernan, who complained to the Health Care Complaints Commission that she had been “totally dismayed” about her care. The court heard that the commission investigated her treatment and subsequently made findings against Al Muderis.
In her letter, which was shown to the court, Heffernan said she had experienced “a totally unnecessary year of pain and misery” between 2020 and 2021, while she was aged 77 and 78, after a total knee replacement conducted by Al Muderis.
Heffernan wrote that her knee had become “loose” within months of surgery. She went on to have a second total knee replacement conducted by a different surgeon, to replace the work Al Muderis had performed.
“Ms Heffernan says that she had continued to be misinformed by you and your associates as having nothing wrong with her knee,” Collins said. “You did repeatedly tell her, did you not, in successive consultations after the [first] surgery that there was nothing wrong with her knee?”
Al Muderis replied: “I addressed her concerns. I accepted her concerns with face value. And I investigated her repeatedly with the appropriate investigations. And I couldn’t find any indicator for me intervening unnecessarily in her knee.”
Al Muderis said the last time he saw Heffernan, before her replacement knee surgery, she had been improving. “I am surprised that she underwent revision knee replacement. At the time that I saw her last she did not need a revision knee replacement.”
The hearing continues.
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