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Take care when working with media

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Image: Brian Solis and JESS3 [CC BY 2.5], via Wikimedia Commons

 

By Kathy Gough
Senior claims manager, Avant Mutual Group Limited

 

You are approached by your local community radio station with a request to take part in a segment in which you would provide eye health tips.

Working with the media can seem exciting and an ideal way to provide useful health information to the community while also benefitting your business.

For the poorly prepared, becoming involved with the media to promote optometric and health matters can be fraught with danger. The media limelight can burn the unsuspecting though well-meaning optometrist.

As an optometric expert, media audiences may listen to what you have to say and act on your advice. The potential for someone you have never met, assessed or treated to bring an action against you for optometric advice dispensed via the media is very real.

The provision of optometric information via the web, broadcast media (television and radio) or print press (magazines and newspapers) is no different from giving information in any other public format, including producing a book, brochures and information sheets or giving lectures, except it is more easily and widely accessible.

The same cautionary principles apply whenever and wherever you provide information: it needs to be accurate, balanced, up-to-date and within your area of expertise.

The following potential causes of action may be brought against you if you provide inaccurate or misleading optometric information through the media.

 

Negligent misstatement

A person who obtains advice from you on an optometric issue via a website, newspaper column, or radio or television broadcast may have an action in negligence against you if the information is incorrect due to negligence, and the person has reasonably relied on the information to their detriment.

It does not matter whether the information is provided gratuitously or given in the course of business or professional activities.

Information concerning treatment options and procedures should include risks and complications as well as possible benefits.

Statements may be qualified to make it clear that your words should not be relied on as providing individual treatment advice. Simply put, stress that your comments are of a general nature only and that the reader/viewer/listener should seek their own optometric assessment and advice.

Whether such a disclaimer will be effective to avert liability will depend on the construction of the words used in light of the surrounding circumstances. The Australian Consumer Law prohibits people from engaging in misleading and deceptive conduct, or conduct likely to mislead or deceive.

Unlike an action for negligent misstatement, a statement that is misleading and deceptive or likely to mislead and deceive is sufficient in itself for action to be taken. There is no need to show that it is misleading due to a lack of reasonable care and skill.

A disclaimer about the truth or otherwise of the statement may be of limited effect, and you should not rely entirely on a disclaimer to absolve you of liability under this legislation.

 

Using disclaimers

Despite their potentially limited effect, it would be prudent to include a disclaimer in your commentary, as I have done at the end of this article, indicating that the optometric comment should not be relied on in the manner in which information provided in a personal consultation can be relied on.

Readers, viewers and listeners should be advised to see their own optometrist or other health professional in relation to any concerns they may have regarding their health. Any disclaimer could also include a statement that you are not responsible for any loss or damage arising from a person relying on your information.

 

Further reading

Catch a falling star. Andrew Took. Australian Doctor, 25 June 2010.

Disclaimer: The information in this publication is general information relating to legal and/or clinical issues within Australia (unless otherwise stated). It is not intended to be legal advice and should not be considered as a substitute for obtaining personal legal or other professional advice or proper clinical decision-making having regard to the particular circumstances of the situation. While we endeavour to ensure that documents are as current as possible at the time of preparation, we take no responsibility for matters arising from changed circumstances or information or material which may have become available subsequently. Avant Mutual Group Limited and its subsidiaries will not be liable for any loss or damage, however caused (including through negligence) that may be directly or indirectly suffered by you or anyone else in connection with the use of information provided in this forum.

 

Avant provides professional indemnity insurance for members of Optometry Australia

February 2013



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