In a recent blog post, we gave you our top tips on how to avoid receiving negligent advice from professionals. In this post, we look at how the professionals can potentially reduce their exposure too.
Picture the scene: you are a doctor and a patient comes to see you about a cosmetic product. You hand your patient a brochure about it, which has been prepared by the manufacturer. The patient likes what they read and agrees to have the product administered as part of a cosmetic procedure. It turns out, however, that some of the manufacturer’s statements in the brochure were incorrect. What does that mean for you, the doctor?
Well, a recent Court of Appeal case* concluded that you may be liable for misrepresentation.
The claimants in this case were patients who underwent cosmetic treatment to rejuvenate their skin using a process developed and marketed by a third party manufacturer. Keeping the science to a minimum, the process involved taking a sample of the patient’s skin; sending it to the manufacturer; cultivating a cell type from the sample in a mixture of bovine proteins; and washing the cultivated cell types to remove as much of the bovine proteins as possible. The manufacturer then turned the cell types into an injectate which would be returned to the doctor and injected into the patient.
Still with me?
The manufacturer had produced brochures about how the injectate was prepared which, the Court of Appeal observed, “used language to suggest that the injectate which a patient received contained only that person’s cells and no extraneous material” (emphasis added).
Expert evidence showed, however, that despite washing the cell types, small traces of the bovine proteins may remain and be included in the injectate. Further expert evidence showed that between 3% and 10% of the population may have a propensity to suffer an allergic reaction to bovine proteins.
The patients were not happy about this and commenced proceedings against their doctors on the basis that the brochures they were given contained (incorrect) statements that only their own cells would be injected; and the doctors were responsible for those statements. A claim was not brought against the manufacturer as it had gone into administration.
The trial judge found in favour of the patients and the doctors appealed.
The Court of Appeal agreed that the statements in the brochures were misrepresentations. In determining whether the doctors were responsible for the contents of the brochures, the following facts were considered important:
- There was a “stark imbalance of knowledge between the parties”, with the doctors being qualified clinicians and the patients being consumers;
- The treatment was purely elective: none of the patients needed to undergo the procedure for any medical or therapeutic purpose; and
- The doctors did not give a disclaimer or express any reservations about the accuracy of the brochures.
Taking everything into account, the Court of Appeal concluded that in handing over the brochures to patients they were offering treatment to, without a disclaimer as to their accuracy, the doctors adopted the contents of those brochures.
The lesson? Always check the accuracy of any information you hand over to your clients and make sure that you use a disclaimer where appropriate.
What do you think about the decision? Was it correct in the circumstances? We would be interested to hear your thoughts, so please feel free to comment below.
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*Kathleen Patricia Webster and Others –v- Mark Liddington and Others  EWCA Civ 560