Disciplined Surgeon Wins Google Right to Be Forgotten Case

Peter Russell

January 28, 2019

A surgeon who was reprimanded for medical negligence won the right to remove Google search results about her case in what was described as a landmark 'right to be forgotten' legal ruling.

The right to be forgotten is a legal option available within the EU under European data protection laws.

The Dutch doctor was disciplined when a complication arose in one of her patients, who later filed a complaint about lack of organisation and aftercare at her clinic.

Following the complaint, the Regional Disciplinary Court for Healthcare suspended the surgeon from the BIG register of healthcare professionals which lists those who are authorised to practise in the Netherlands.

On appeal, the Central Disciplinary Court for Health Care annulled the earlier judgment and substituted a conditional suspension of her registration with a probationary period, understood to have been a few months.

'Digital Pillory'

Although the surgeon was allowed to continue to practise, a Google search of her name brought up a prominent mention of her disciplinary procedure on a private, unofficial 'blacklist' of doctors in the Netherlands, which she and her representative argued amounted to 'digital pillory'.

Her case was taken up by Willem van Lynden of the Amsterdam firm MediaMaze, who specialises in the field of online reputation management.

He told Medscape News UK: "Those search results were very, very prominent when you looked up the doctor's name – it was the first result on the first page – and that gave a totally wrong impression of the doctor's capabilities because, yes, there had been a sanction but she had been treating patients for 40 years, and she has had one sanction in those 40 years."

Google resisted attempts to have the links removed, and the Dutch data protection authority, Autoriteit Persoonsgegevens, determined it was "important for future patients to be able to find this information".

The district court of Amsterdam subsequently ruled that the surgeon "has an interest in not indicating that every time someone enters their full name in Google's search engine, (almost) immediately the mention of her name appears on the 'blacklist of doctors', and this importance adds more weight than the public's interest in finding this information in this way".

The court also rejected claims by Google that most people would find it difficult to access information about the surgeon on the BIG register.

Censorship or Reputation Protection?

Colm McGrath, a specialist in medical law at King's College London, told Medscape News UK: "Citizens may not understand that there are different gradations of infraction and there are different ways in which one can fall foul of the professional regulator, and not all are worthy of the level of stigma we might put upon it."

Mr van Lynden said the relevant information remained in the public domain. "The people who want this information can still access it, and if that is the case why do you need these other pages detailing the sanctions?" he asked.

"Those who are screaming high and low that this is censorship and we should have access – you still have it, and there really is no problem."

Bryan Vernon, senior lecturer in healthcare ethics at Newcastle University, told Medscape News UK: "A disciplinary committee's primary aim should be ensuring patient safety. This committee believed she was safe to practise, albeit with conditions. Such information could influence a patient consenting to treatment from her. Informed consent is central to patient care.

"Concealing such information could undermine trust in the medical profession.

"Blacklisting means that she should be avoided: this is an opinion, not a fact, and not what the appeal committee had decided. It was, however, what the original committee believed. Unless new facts came to light, it is hard to see the original decision as libellous.

"Reporting it is hardly irrelevant or excessive. When balancing the right to free speech and a patient's right to informed consent against doctors' interests in suppressing unfavourable opinions about them, I find it hard to support the doctor in this case."

The court case was concluded in July 2018 but only recently made public.

Mr van Lynden said he had recently been contacted by a number of doctors who had asked him for help because they had been included on a blacklist and that he was "looking at the various legal options to force Google into abiding by the rules".


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