In Webster & Others v Liddington & Others the Court of Appeal ruled that clinicians administering non-surgical cosmetic treatments involving third party products are responsible to their patients for representations made by the manufacturers of those products as to what they contain, in the absence of an express disclaimer. This may have serious ramifications for doctors and their insurers in the cosmetic surgery sphere.
The respondents in this appeal were people who underwent treatment to rejuvenate their skin with a non-surgical cosmetic treatment called Isolagen. The procedure involved removing some of the patient’s own cells, culturing them in a bovine calf serum and then re-injecting them in the patient’s face. The manufacturer’s literature (which was handed to patients by the clinicians) stated that only the patient’s cells would be re-injected whereas in fact small quantities of the bovine calf serum were also injected. Whilst none of the 50 plus claimants at first instance had suffered any injury as a result, they commenced proceedings against the clinicians who had administered the treatment for damages (essentially the costs of the treatment, in the region of £3,500-£4,000 per patient) on the basis that they would not have had the procedure had they known that bovine calf serum would be present.
At first instance, the judge found in favour of the patients and held that:
- The clinicians were responsible for the statements contained in the manufacturers’ brochures which they handed to patients.
- The clinicians intended the patients to rely upon those statements and the patients did so reasonably rely.
- The brochures all asserted that only the patient’s own cells would be re-injected, which was incorrect as the injectate contained bovine calf serum.
- The brochures contained misrepresentations about what was to be re-injected into the patients.
The clinicians appealed on the grounds that (1) they were not responsible for statements in the brochures and (2) those statements were substantially accurate.
Court of Appeal decision
The Court of Appeal upheld the judge’s original findings. Jackson LJ stated that, in his view, any reasonable person standing in the shoes of one of the patients would conclude that the clinician was adopting the contents of the brochure which he handed over. The brochure was a written description of the treatment which the clinician was offering to carry out and the substance which the clinician was offering to inject into the patient. Accordingly, the clinician was adopting the content of the brochure. He would have had to stipulate a disclaimer or express a reservation about the accuracy of the information being handed over if he had not wished to adopt the representations in the brochure.
Turning to the second ground of appeal, Jackson LJ held that the statements about the injectate in the brochures were inaccurate and the error was significant as the bovine material present could have caused allergic reactions in some individuals. The appeal was therefore dismissed.
Following this judgment, clinicians may be surprised to learn that legally they can be found to have adopted statements made by third party providers simply by passing on literature to patients before carrying out procedures. The Court of Appeal was more willing in this case to impose that additional responsibility because of the imbalanced relationship in terms of medical knowledge between the patients and the clinicians, where reliance on and trust in the professional was to be expected.
It is essential that appropriate disclaimers are given by medical practitioners, preferably in writing but at the very least orally in consultation, as part of the pre-procedure patient consensual process, especially before the administration of elective non-essential treatments. Jackson JL gave the following example of an appropriate disclaimer:“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”. Insurers should note this new potential liability when considering claims in this area, especially in the highly charged arena of cosmetic surgery following the PIP breast implants GLO currently passing through the courts.