Most medical practitioners are aware that their insurance policies primarily indemnify them for claims arising from the clinical treatment or advice they provide to patients (usually arising from contractual and/or common law duty of care circumstances). Policies often also include legal expenses cover, for instance for some (but perhaps not all) regulatory and coroner’s investigations. There may also be specific endorsements that extend the scope of the cover offered such as specific procedures, or beyond the UK jurisdiction, or to cover product liability. However, to what extent have medical practitioners and underwriters considered whether the insured individual may be found liable for representations made by the private hospitals/clinics which grant them practising privileges or employ them, or the manufacturers of the products they use?
When prospective patients make private treatment enquiries, particularly for cosmetic procedures, they often receive brochures and other information which offer more details on the procedure in question, the hospital facilities, the products to be used and so on. This information may be provided in person by the treating clinician, but often the literature has been prepared centrally by the hospital; perhaps by colleagues; or by a product manufacturer. Many people would assume that if any information within those documents was incorrect, the party which prepared them must be liable for their content. Quite simply, no.
What did the courts conclude?
Earlier this year, a number of cosmetic treatment clinicians appealed against the judgment of His Honour Judge Platts, which found them responsible for the statements contained in brochures which they had handed over to their patients (Kathleen Patricia Webster & Ors v Mark Liddington & Ors).
Between 2003 and 2006 Isolagen Europe Ltd (IEL) marketed a product called Isolagen which was said to rejuvenate human skin and restore a youthful appearance. IEL did not administer the treatment itself but had arrangements with a number of clinics and doctors across the country. In essence, the treatment involved the removal of a small skin sample from the patient which was sent to IEL’s technicians, where they cultivated certain cells in foetal calf serum. Once the cells were developed, they were washed clean of the serum as far as possible and placed in a suitable medium, which was sent back to the clinician to be injected into the patient across a number of appointments.
IEL produced a number of brochures explaining the Isolagen process. In addition, some clinics produced their own brochures too. All of the brochures were passed to the patients by the clinicians. All of the literature also used language which suggested that the medium ultimately injected back into the patient only contained their cells and no extraneous material. However a number of patients who received the treatment subsequently discovered that it contained traces of foetal calf serum and therefore sought compensation for the misleading representations.
A group action followed against the various clinics and clinicians. IEL was not pursued as it was in administration. A trial of three preliminary issues was arranged to consider: (i) did the brochure sentences, as a matter of law, constitute representations? (ii) If so, were they representations of fact or opinion? (iii) If, as a matter of law, they were fact, were they accurate? The issue therefore arose as to whether the clinicians were responsible for the statements. His Honour Judge Platts concluded that the clinics and clinicians were responsible for the statements in the brochures which they handed over; the clinics and clinicians intended the patients to rely on those statements – which they reasonably did; the brochure assertions were incorrect; and the majority of the sentences amounted to misrepresentations.
A number of legal claims were settled or stayed following this decision, but the remaining defendant clinicians and one clinic appealed the judgment. The appeal raised three arguments, but only one is considered here: whether the judge had erred in holding the defendants responsible for the accuracy of the brochures’ content. Lord Justice Jackson concluded that all of the clinicians who administered the treatment had handed over the brochures beforehand. On reviewing the authorities he considered (in summary) that there were primarily four scenarios which could arise when a clinician passes information produced by another party, to a patient with whom they are hoping to contract:
- the clinician may warrant to the patient that the information is correct. The clinician therefore assumes contractual liability to the patient for the accuracy of the information.
- the clinician may adopt the information as his own, thereby taking on such responsibility as if he were the statement maker.
- the clinician may represent that he believes, on reasonable grounds, that the information supplied by another is correct, thereby involving a lesser degree of responsibility.
- the clinician simply passes on the information to the patient as material coming from another party, about which he had no knowledge or belief. The clinician then has no responsibility for the accuracy of the information beyond ordinary duties of honesty and good faith.
An objective test applies. The extent of the clinician’s responsibility for the information is that which a reasonable person in the patient’s position would understand from the clinician’s words, or infer from their conduct and all the circumstances. Lord Justice Jackson noted the significant imbalance of knowledge between the qualified clinicians and patient consumers; none of the patients were ill and in need of the treatment for medical or therapeutic purposes; and the clinicians did not express any reservations or provide any disclaimers when handing over the brochures. Accordingly a reasonable person would conclude that the clinician was adopting the brochures’ contents. In addition, the other two appeal arguments failed on the basis of previously presented expert evidence. Lord Justices Briggs and Christopher Clarke agreed with Lord Justice Jackson and accordingly the appeal was dismissed.
The “health warning”
Given the potential to be liable for material prepared by a third party, it is crucial that medical practitioners consider the literature they are providing to their patients (particularly if they did not prepare it) and clarify their views on its content and inform their patients of this. Underwriters too may wish to reflect on whether they require their insureds to evidence if such a thought process has occurred, so as to limit their mutual claim exposure in the future. Otherwise both may find themselves liable for more than they anticipated.