A doctor who has muscular dystrophy and formerly worked at the state hospital was not discriminated against when he was asked to vacate a room he was seeing patients in, the constitutional court has ruled.

The court overturned a previous court ruling in which Naged Megally was granted €5,000 in moral damages for being subjected to inhuman and degrading treatment and for having suffered discrimination due to his disability.

The incident dates back to July 2018 when Megally was seeing four patients at Mater Dei Hospital’s ultrasound clinic. Another doctor was seeing 10 pregnant women who had to undergo anomaly scans. These check the physical development of the baby and must be carried out between 18 and 21 weeks of pregnancy.

One of the ultrasound machines broke down so the hospital management decided that, given that the anomaly scans had to be carried out at a specific point in the pregnancy, they had to be given priority.

So Megally was asked to vacate the room, when he had three patients left, so the other doctor could carry out the 10 anomaly scans, then see to Megally’s pending three patients.

Megally, who uses a wheelchair, claimed that his superior, Yves Muscat Baron, had told him that he was taking too long. When he insisted on finishing examining his patients, he was physically carried from the chair inside the clinic to a chair outside by the professor and then by hospital CEO Ivan Falzon who would not wait for porters to assist Megally to his wheelchair.

All this took place in full view of his patients, he said.

Megally had initiated court proceedings against the hospital, claiming that he was subjected to inhuman and degrading treatment as well as discrimination due to his disability.

Proof of discrimination

Meanwhile, in October 2021, he was served with a precautionary suspension over alleged “mistakes” and “shortcomings” at his job.

Last year, the court had ruled in his favour. The court found that efforts to suspend him and have him boarded out further proved the ongoing discrimination against him. He was awarded €5,000 in moral damages payable by the Mater Dei authorities and the court had also ordered his immediate reinstatement.

But the hospital appealed to the constitutional court, presided by Chief Justice Mark Chetcuti, sitting with Mr Justice Giannino Caruana Demajo and Mr Justice Anthony Ellul.

The court reviewed the evidence and ruled that it was never contested that Megally took longer than the other doctor to see patients. He spent about half an hour on each patient as opposed to 15 minutes.

It was also accepted that Megally had a lower caseload – something that Megally never objected to in  the past, which meant this was not discriminatory but the hospital’s way of making work more accessible to him.

Claim of being lifted out of wheelchair unproven

The court found that it had not been proven that Megally had been lifted out of his wheelchair as he claimed. There were opposing versions which meant that it was not sufficiently proven.

The decision to ask Megally to vacate the room was taken in the interest of patients. While it could have been handled more professionally, and Megally could have been asked to leave the room after his patient left the room, this did not constitute degrading treatment.

The constitutional court also noted that the first court was wrong when it factored in his suspension and previous attempts to have him boarded out as proof of ongoing discrimination against him due to his disability.

According to evidence, not contradicted, by Muscat Baron, his suspension was due to ongoing investigations by the Medical Council following allegations that included two women almost dying in the span of a week – one of whom had to be operated on twice following an alleged shortcoming from Megally’s end, the court said.

The procedure to have him boarded out was not based on his disability but was due to concerns about how he carried out his work following certain allegations that included: an incident in which he overlooked a tumour in a patient after it was flagged to him by a radiographer; mistakes in the interpretation of ultrasounds that included an incident when he told a woman she had miscarried and had to undergo an intervention and, just before, it turned out it was not the case; and mistakes in reading the results of anomaly scans.

No degrading and inhuman treatment

For these reasons, the court overturned the decision of the first court and ruled that Megally had not been subjected to degrading and inhuman treatment and was not discriminated against due to his disability.

Megally, who has been suspended on half pay since October 2021 due to pending internal investigations, said he intends to continue his battle and take the case further.

“My fight for justice will not stop here and the matter shall now be escalated before the European Court of Human Rights,” he told Times of Malta.

He denied being investigated by the Medical Council. 

“I can confirm that, to my knowledge, there is no investigation being carried out by the Medical Council and the cases mentioned in the judgment are simply false allegations made by Muscat Baron and were never the subject of any investigation. This can be confirmed with the Medical Council, a representative of whom has testified in court on this matter. There is an investigation against me before the Public Service Commission on an unfounded report filed by Muscat Baron. This case is still being heard by the Public Service Commission,” Megally said.

A health ministry spokesperson said: “The ministry can confirm that Dr Megally was put on a precautionary suspension by Mater Dei Hospital’s administration since October 2021, which was approved by the Public Service Commission, pending the outcome of an internal Board of Discipline. The board’s sittings were adjourned at the request of Dr Megally’s lawyers due to the court case referred to in your question and have now resumed. The next sitting will take place on the 19th of April 2023.”

Questions sent to the Medical Council remained unanswered by the time of writing.