We continue with our series of general educational articles penned by one attorney, an MD, JD, giving you a view of the world through a malpractice plaintiff attorney’s eyes. This attorney is a seasoned veteran.  The series includes a number of pearls on how to stay out of harm’s way. While I do not necessarily agree with 100% of the details of every article, I think the messages are salient, on target, and fully relevant.  Please give us your feedback – and let us know if you find the series helpful. 

Many doctors advertise a lot. Some a little. A few not at all. 

Be careful of the creative marketeer you just hired. He may be an expert in persuading patients to see you. But, he is probably not an expert in regulations that bind physicians. 

Let’s have look at those, starting with the Federal regulations. 

Physician advertisements are governed by the Federal Trade Commission Act. Under this Act advertising is legal as long as it is not “false, deceptive or misleading”.  

In identifying those elements in an ad, the FTC looks at: 

1. Overt or implied material false claims…

Examples might be “Facial rejuvenation by Dr. Derm makes anyone look 20 years younger!” and “Come to Dr. Derm to look 20 years younger like the rest of our patients!” Note this is not simple puffery like “Look younger and feel better with Dr. Derm’s facial rejuvenation!” – it is instead a claim/the implication of a claim that all patients will experience a specified improvement. 

2. Overt or implied misrepresentations of material facts…

Examples might be “Dr. Neuro is a Board-certified neurologist” if Dr. Neuro is not actually Board-certified; and “Dr. Neuro completed the Board certification examination in neurology” if Dr. Neuro actually failed that examination.  

3. Omissions of material fact…

An example might be “Dr. Gastro, the head of our endoscopy clinic, has privileges at Great Hospital” without revealing that those privileges are limited to adjunct teaching and that Dr. Gastro cannot admit patients to Great Hospital. In fact, there is no affiliation of the clinic to Great Hospital should a patient have a complication at the clinic. 

Your test of your own advertising should be whether, if required to do so, you could validate the claim that you are making or prove that what you left out was not something that a reasonable patient deciding where to go for medical care would want to know about you and your practice. 

The Federal penalties for false advertising can be a lawsuit by the FTC, a fine by the FTC or an injunction by the FTC against running the ad. 

If you have run afoul of the FTC then you can expect your state to take action as well. So now let’s look at that level of regulation. 

The state may act pursuant to an FTC action or may act on its own on the basis of a complaint. A complaint could come from a member of the public or a patient. A complaint can also come from a competitor who would like nothing more than to cause problems for you,. 

State sanctions can include the AG bringing a lawsuit resulting in fines or the medical board bringing a disciplinary action against your license. 

State law may also permit patients to sue for damages resulting from a false or deceptive advertisement. This is separate action from one for actual malpractice, which addresses the care itself.  The advertisement-based claim goes to the inducement to seek the care in the first place.  

State statutes flesh out the limitations on physician advertising conduct in ways that tend to be common. They will usually address such matters as “false, fraudulent, deceptive or misleading material or guarantees of success”, “statements which play upon the vanity or fears of the public” and “statements which promote or produce unfair competition.” 

States differ very significantly on the issue of patient testimonials, which physicians generally like to include in their advertising.   

For example, Illinois has a flat ban on such, but in Texas a testimonial is only a problem if it “includes false, deceptive, or misleading statements, or fails to include disclaimers or warnings as to the credentials of the person making the testimonial.” 

Even if you are in a state that permits patient testimonials in ads, keep in mind the AMA Code of Medical Ethics, which requires that “objective claims regarding experience, competence, and the quality of physicians and the services they provide may be made only if they are factually supportable. Similarly, generalized statements of satisfaction with a physician’s services may be made if they are representative of the experiences of that physician’s patients.” 

Also keep HIPAA and state confidentiality laws in mind and to get an express authorization to use what is, of course, Protected Health Information, and to then stay carefully within that authorization if you will be using patient statements.   

For example, if Jane Smith agrees that you can use a paragraph from the letter of gratitude that she wrote to you after you successfully treated her infertility that says “You were wonderful when we had the triplets!” and that she be identified as “J.S.” then you can go no further because she did not waive her confidentiality as to the additional fact that those babies were the result of in vitro fertilization nor did she consent to be publicly known as “Jane S.” or “Mrs. Smith”. 

In all cases it is critical to take into account the intended geographic scope of the ad. If it will cross state lines then every state it is intended to reach must have its rules satisfied.  

What this means is that, for example, if you are a physician in northern Florida who hopes to also attract patients from southern Georgia by advertising on radio stations that cover both local areas you need to consider the laws of both states. But if you are putting out an ad on the internet limited to services for Florida and Georgia patients (although it can incidentally be seen nationwide) you do not have to comply with the rules in all 50 states because reaching them was not your intention. 

Disparagement of a competitor is unacceptable, even if it is technically true and therefore not defamation. It is also a good way to get sued by a competitor for tortious interference with their business. However, you can tout your own practice.  Therefore, “Radiology Associates uses outdated mammography technology without CAD” is not going to be acceptable, “Radiology Associates does not offer CAD, but we do!” is marginal as to acceptability. “We offer the only CAD mammography unit in the East Lake area” will be fully acceptable and will make the same point. 

Finally, when contracting with a marketing consultant or advertising agency you should insist the service agreement state that the advertisement they create will comply with all applicable federal and state laws. If they fail in that and you suffer an action thereby from the FTC, the state or a patient you can pursue them for damages.  

However, bear in mind that in a disciplinary action at a state medical board the ethical standard for you as a physician is very high and you are solely responsible for what you, under the license the state granted you, put out to the public and this will not be delegable to the agency. 

In summary: Physician advertising may be very useful in enhancing business but the physician should take care to maintain compliance with federal and state statutes on the representations made, the permissibility of patient testimonials and privacy issues. Disparagement of competitors should be avoided. The company creating the ad should be contractually responsible for compliance with regulations.  In a disciplinary action a physician will not be able to shift liability to the company that prepared the ad. 

[Medical Justice notes: If you use before and after pictures, or patient testimonials (in compliance with state law) in advertising, such as your web site, you will need the patient’s explicit permission to us. Medical Justice has templates for such consent. Please contact us if you would like such a template.] 

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