Background

Summary of Council decision:

Three issues were investigated, all of which were Upheld.

Ad description

A website for claims management company The Medical Negligence Experts, www.the-medica-negligence-experts.co.uk, seen on 31 January 2019 featured text which stated "The Medical Negligence Experts are here to help if you have been affected by negligence and wish to seek birth injury compensation" and featured three headings:

1. "Cerebral palsy", text stated "Cerebral palsy is a term used to define brain damage that results from a lack of oxygen during pregnancy or birth. The effects are permanent and can range from mild lack of coordination to severe learning difficulties, problems with hearing and speech".

2. "Birth & Pregnancy", text stated "Birth injuries can affect both the baby and mother. They happen when medical experts either fail to follow the correct procedures, or they carry them out in a substandard manner".

3. "Failure to Identify Disability", text stated "Mistakes made during screening for foetal abnormality can have a huge effect on the life of a family. Mothers in the UK have the option for their baby to be screened for conditions like Down Syndrome, heart or brain defects, Spina Bifida, and other developmental abnormalities that may lead a parent to decide to terminate their pregnancy".

Issue

The complainant, who believed that many causes of cerebral palsy were not understood, that the most common cause of birth injury was tragic accident and that screening was not able to guarantee that a child was free from the conditions listed, challenged whether the following claims were misleading:

1. "Cerebral palsy is a term used to define brain damage that results from a lack of oxygen during pregnancy or birth";

2. "Birth injuries can affect both the baby and the mother. They happen when medical experts either fail to follow the correct procedures, or they carry them out in a substandard manner"; and

3. "Mothers in the UK have the option for their baby to be screened for conditions like Down Syndrome, heart or brain defects, Spina Bifida, and other developmental abnormalities that may lead a parent to decide to terminate their pregnancy".

Response

1. National Injury Claimline Ltd t/a The Medical Negligence Experts said the ad only referred to the negligence-linked causes of cerebral palsy. They referred to the NHS website which listed several causes for cerebral palsy and said that three of those causes could refer to medical negligence related matters. They did not believe the ad implied there was only one cause and referred to the words "if you have been affected by negligence and wish to seek birth injury compensation" in the ad, which they said indicated that there were other causes beyond medical negligence.

2. The Medical Negligence Experts said the wording "they happen" would not be used in future and that they would change the wording of the claim to "may happen" or "may happen through other non-negligent causes".

3. The Medical Negligence Experts said the ad stated screening could help with the early identification of other unrelated conditions. They said their intention was to show that birth matters were complex and various issues could arise. They said it did not imply that medical negligence was always the cause.

Assessment

1. Upheld

The ASA considered that the ad was primarily directed at those who had experienced the trauma of complications during pregnancy and childbirth. The ad offered those people the opportunity to seek compensation by making a negligence claim against the medical professionals involved in their care. We considered the target audience were particularly susceptible to advertising for a service that helped them to make such a claim and that they were more likely to believe, readily, specific claims made about that service. We considered the vulnerability of those consumers could reasonably be foreseen, and that it was appropriate to ensure that they were adequately protected by assessing the ad from the perspective of the average member of that group.

In that context, we considered that the average member of that group would understand the claim “Cerebral palsy is a term used to define brain damage that results from lack of oxygen during pregnancy or birth” to mean that the condition was only caused by problems with oxygen supply during pregnancy or childbirth and that if their child had developed cerebral palsy, they were able to make a compensation claim for medical negligence.

We understood that while one of the reasons for the development of cerebral palsy was the lack of oxygen supply, the exact cause was unclear in many cases. We understood that in cases where other factors had caused cerebral palsy, such as meningitis, medical negligence was not the reason for its development, and consumers were unlikely to be entitled to make a claim under those circumstances.

Because the ad implied that cerebral palsy was developed only through lack of oxygen supply during childbirth due to medical negligence, when that was not the case, we concluded that the claim was misleading.

On that point, the ad breached CAP Code (Edition 12) rules  3.1 3.1 Marketing communications must not materially mislead or be likely to do so.  and  3.3 3.3 Marketing communications must not mislead the consumer by omitting material information. They must not mislead by hiding material information or presenting it in an unclear, unintelligible, ambiguous or untimely manner.
Material information is information that the consumer needs to make informed decisions in relation to a product. Whether the omission or presentation of material information is likely to mislead the consumer depends on the context, the  medium and, if the medium of the marketing communication is constrained by time or space, the measures that the marketer takes to make that information available to the consumer by other means.
 (Misleading advertising).

2. Upheld

We considered that consumers would understand the claim "Birth injuries can affect both the baby and the mother. They happen when medical experts either fail to follow the correct procedures, or they carry them out in a substandard manner" that birth injuries only happened as a result of negligence by medical professionals.

We welcomed The Medical Negligence Experts’ willingness to ensure their future advertising made clear that medical negligence was only one of the causes of injuries during childbirth and that there were other reasons why they occurred. However, because that was not made clear in the ad, we concluded that the claim was misleading.

On that point, the ad breached CAP Code (Edition 12) rules  3.1 3.1 Marketing communications must not materially mislead or be likely to do so.  and  3.3 3.3 Marketing communications must not mislead the consumer by omitting material information. They must not mislead by hiding material information or presenting it in an unclear, unintelligible, ambiguous or untimely manner.
Material information is information that the consumer needs to make informed decisions in relation to a product. Whether the omission or presentation of material information is likely to mislead the consumer depends on the context, the  medium and, if the medium of the marketing communication is constrained by time or space, the measures that the marketer takes to make that information available to the consumer by other means.
 (Misleading advertising).

3. Upheld

We considered that consumers would understand from the claim "Mothers in the UK have the option for their baby to be screened for conditions like Down Syndrome, heart or brain defects, Spina Bifida, and other developmental abnormalities that may lead a parent to decide to terminate their pregnancy", which was seen beneath the heading “Failure to Identify Disability” to mean that when a failure to identify the listed conditions during antenatal screening occurred, it was as a result of medical negligence.

We understood that while screening for certain conditions was very accurate, it could not give a definitive diagnosis of the conditions listed. Consequently, failure to identify the conditions listed was not necessarily the result of medical negligence. We therefore concluded that the claim was misleading.

On that point, the ad breached CAP Code (Edition 12) rules  3.1 3.1 Marketing communications must not materially mislead or be likely to do so.  and  3.3 3.3 Marketing communications must not mislead the consumer by omitting material information. They must not mislead by hiding material information or presenting it in an unclear, unintelligible, ambiguous or untimely manner.
Material information is information that the consumer needs to make informed decisions in relation to a product. Whether the omission or presentation of material information is likely to mislead the consumer depends on the context, the  medium and, if the medium of the marketing communication is constrained by time or space, the measures that the marketer takes to make that information available to the consumer by other means.
 (Misleading advertising).

Action

The ad must not appear again in the form complained of. We told National Injury Claimline Ltd t/a The Medical Negligence Experts to ensure that their future advertising did not misleadingly imply that complications resulting from pregnancy and childbirth were categorically caused by medical negligence when that was not the case.

CAP Code (Edition 12)

3.1     3.3    


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