After a High Court judge criticises "hysterical media reporting" of complicated medical issues, the press, lawyers and society as a whole must learn the lessons of the metal-on-metal hip litigation.
In Gee v DePuy International Limited, handed down on 21 May 2018, Andrews J criticised media reports of the risks associated with metal-on-metal hips. The claimants had argued that the Pinnacle metal-on-metal hip implant was defective because its revision rate (the number of implants removed and replaced with a different prosthesis over a fixed period of time) was worse than for comparable products. In finding in favour of the manufacturer, however, Andrews J ruled that evidence presented by the claimants could not be relied upon, citing expert evidence of "the self-fulfilling prophecy whereby panic engendered by the sensationalist media reporting increased the revision rates." The judgment suggested that materially significant numbers of patients underwent surgery to revise their implants sooner than would have been the case if reporting had been more measured.
The Pinnacle hip was approved for use in the United States and the EU and was subject to the world's most stringent regulatory standards. Despite this, a scan of mainstream media reports on metal-on-metal hips over the last ten years reveals scores of headlines using emotive words and expressions such as "fear", "crippled for life", "misery", "alarm", "scare", "poisoning", "agony", "toxic", "link to cancer" and "must be banned". After a trial that ran for over three months, the Court ruled that the products were not defective, so giving the lie to the hyperbole.
The media can play a vital role in investigating and holding to account governments, regulators and healthcare institutions. In this blog alone, we have reported on the Dr Bawa-Garba case, the debate over medicinal cannabis, the contaminated blood enquiry and the opioid epidemic – all examples from the last few months where investigations by the media have contributed to regulatory intervention, government action and judicial decisions for the benefit of society as a whole. The media also has an essential role in disseminating urgent healthcare information issued by governments and regulators.
But Gee v Depuy showed that sections of the press sometimes overstep the mark where reporting of healthcare concerns falls into the seductive trap of spicing up headlines with emotional language designed to worry the public. Lawyers should be wary of bringing claims inspired by such stories. Whilst media outlets benefit from increased sales, the implications can be serious:
1. For individuals
Patients can be caused unnecessary anxiety, and demand revision surgery (which carries its own risks) when it is not necessary, or at best premature.
Gee v Depuy demonstrated that adverse, and unfair, media reporting has an effect on clinicians too. The risk is that medical professionals will react to a media storm by taking an overly cautious approach in particular cases, whether revising an implant too early or shying away from prescribing the best treatment for a particular condition.
2. For society as a whole
In the wider context, manufacturers may decide that innovation is not worth the risks. Any medical product that interacts with people's physiology, or introduces artificial components into the body, will have some form of side-effect. Laboratory and clinical trials can only go so far in predicting what the side-effects will be in order to help regulators determine if the risks associated with a product are outweighed by the benefits. It is only once a product is in use in the population at large that a manufacturer knows how a product will perform over the longer term. Manufacturers ought to be free to innovate, within the constraints of regulation, and be held to account based on scientific knowledge once it is available. If the media does not give them the space to do so, then manufacturers will be wary of bringing new products to the market.
Emotive headlines can also have an impact on decisions taken by large numbers of people, with consequences for society in general. A case in point is the decline in MMR vaccination rates following media reports based on Andrew Wakefield's erroneous allegation of a link between the vaccine and autism, with a resulting rise in the incidence of childhood illnesses that the vaccine is designed to prevent.
Over the last couple of years, society has become increasingly concerned about the effect of fake news. It can skew elections and ruin reputations. For the healthcare sector, Gee v Depuy shows that misleading reporting of complicated medical issues can lead to hysteria, unwarranted attacks on manufacturers and the public being denied the most appropriate medicines and medical devices. It is important that media outlets stress-test the evidence and investigate the bigger picture to avoid stories amounting to fake news.
Some patients literally bear the scars of clinical decisions influenced by irresponsible headlines – but unlike some newspapers, they're not faking it.