Personal Injury, Serious Injury & Clinical Negligence

Doctors responsible for information in manufacturers brochure

Cosmetic injections, procedures and therapies

In a decision earlier this month the Court of Appeal upheld a finding that doctors who provide patients with written material concerning a product they recommend to a patient are liable for the content of those documents. The case of Webster v Liddington concerned the injection of a substance called Isolagen into a patient’s face to rejuvenate the skin and “restore a youthful appearance”. The substance was purportedly the product of the patient’s own cells taken from a small skin sample. In reality patients discovered that Isolagen contained small traces of animal derived materials.

The supplier of Isolagen ceased trading, leaving those patients who felt they had been mislead by the content of brochures handed to them by the clinicians (but produced by the manufacturers) with no claim against the company. Instead they sought to pursue claims against the clinicians who had treated them on the grounds that the clinicians were liable for the misrepresentations contained in the brochures, even though they did not themselves produce that written material.

The Court of Appeal upheld the findings of the trial Judge, confirming that the brochures contained misrepresentations and that the clinicians were liable for those misrepresentations, although they had no direct control over the published material.

The decision has particular consequences in the field of cosmetic surgery, where the use of brochures and printed material concerning treatments and procedures is common. It may well however have an impact on other areas of practice where doctors prescribe or recommend a treatment or medication produced by a third party. Proprietary medication or prosthetics used in surgery are two areas where the medical profession may need to pay closer attention to the material they hand over to patients. The Court appeared to suggest that a disclaimer by the medical practitioner would protect his position but how commercially attractive it would be for a cosmetic surgeon to recommend a product to a patient and then distance themselves from any liability for using it is doubtful.

If you have experienced any difficulties arising out of cosmetic surgery or similar procedures contact Chris Thorne, partner in the Clinical Negligence team at Clarke Willmott”