ML5: WHAT IS MISLEADING OR DECEPTIVE CONDUCT?

Abstract

Surgeons acquire knowledge from a variety of sources that include textbooks, journals, the attendance at scientific meetings and workshops, from the internet, from continuing medical education (CME) programs and from informal corridor discussions with colleagues.

Surgeons also rely heavily on the information that is provided by the manufacturers and distributors of implantable surgical devices. Advertisements in journals and on the internet are frequently published for surgical products where there are claims by manufacturers of clinical and scientific fact. Also it is the case that the pictorial (photographic) content of these advertisements can be of a nature that might lead the reasonable observer into error. Patients and their Surgeons, both as consumers, will frequently rely heavily on the available information when exercising choice. In the event it is particularly important that manufacturers avoid the publication of promotional information that might be misleading or deceptive, as consumers can be greatly influenced by marketing material and by the representations made.

Though the manufacturers of drugs have frequently been accused of misleading consumers, the claims made by surgical device manufacturers have escaped any more than minor criticism. The author discusses the question of what might or might not be misleading or deceptive conduct. Evidence is presented to support the view that there is a very fine line that separates puffery from conduct where there is a real or not too remote chance that might lead another into error.

The Australian law of misrepresentation is complicated and includes two sources of law. These are the general law which is an amalgam of general law and equity rules and the Trade Practices Act s52 which is mirrored in the Fair Trading Acts of each State and Territory. The author reviews this law as it effects the medical devices industry.

It is evident that there are lessons to be learned that include the need for greater diligence by surgical implant manufacturers when substantiating their claims and greater vigilance among members of the medical profession, and other consumers, when exposed to promotional material.