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Doctor liable for information in manufacturer's brochure

Newsletter 11 August 2014

The recent decision in Webster v Liddington [2014] EWACA Civ 560A in the England & Wales Court of Appeals considers whether a doctor can be held liable for the representations made in a manufacturers’ brochure in circumstances where the doctor gives such a brochure to a patient.

This case involved brochures given to patients undergoing a cosmetic procedure. The brochure, created by the manufacturer, who had since gone into liquidation, stated that the procedure involved re-injection of only the patient’s own cells to rejuvenate skin and give a youthful appearance. In fact, the product re-injected back into the patient also contained traces of foetal calf serum.

A class action was brought alleging that the brochures given to the patients were a misleading representation by the doctors. The doctors maintained they were merely passing on information provided by the manufacturer and were not responsible for the representations contained in the brochures.

The Court held that:

‘the claimants were consumers and the appellants (the doctors) were qualified clinicians. There was a stark imbalance of knowledge between the parties. The appellants (the doctors) were offering to sell both a product and service to the claimants...the relationship between the parties was that of clinician and patient, as well as vendor and purchaser...the...treatment was purely elective...the appellants (the doctors) did not stipulate any disclaimer or express any reservation about the accuracy of the information which they were handing over...a reasonable person standing in the shoes of the claimants would conclude that the clinician was adopting the contents of the brochure which is handed over.’

The Court indicated that the doctor could instead provide the manufacturer’s information with a disclaimer, such a disclaimer may say:

‘This is what the manufacturer says. They are a reputable company. Although I have no direct knowledge of these matters and cannot confirm the details, I believe that the brochure is accurate.’

Such a disclaimer would indicate that the doctor was not adopting this information as his or her own and was reliant on the representations made by the manufacturer.

Implications & Considerations

While this is an English case, it does raise some potential issues of concern. Doctors regularly give patients information prepared by third parties. Generally, there will not be an issue with doing this as the information comes from Colleges or manufacturers whose product will have complied with the appropriate approval requirements. The areas that could be of concern are:

  • Information given to patients having elective procedures, particularly cosmetic procedures;
  • Information in relation to new or innovative procedures or products; or
  • Information about products or procedures of which the doctor has no independent knowledge.

As a precaution, a disclaimer should be given in such circumstances. Not only should a disclaimer be given, but such disclaimer needs to be documented or form part of a clearly established usual practice.

Manufacturers’ information can provide extremely helpful information to patients, but it would be prudent for doctors when providing such information that they either have some independent knowledge as to the representations made or provide an appropriate disclaimer.


Kylie Agland, Partner
Sydney

Newsletter 11 August 2014
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