In this economy, investing in advertising as a way to increase profits is an attractive idea. But, before you reach out to a marketing firm, let me tell you about a recent scenario that happened to one of my physician clients.
Dr. M (name concealed for anonymity) recently decided to undertake marketing efforts in an attempt to increase his patient base and enhance business. As part of these marketing activities, Dr. M retained the services of an advertising agency to develop a campaign that would appear in newspapers. When Dr. M excitedly mentioned this new venture to me as a side note in conversation, I was immediately concerned. Advertising executives are experts in creative marketing, not in the law. I urged Dr. M to have me review the advertisements before they were published to ensure that none were in violation of applicable state and federal laws.
Advertisements by physicians are legal under the Federal Trade Commission Act, provided such advertisements are not false, deceptive or misleading. The following are general rules of thumb that may be used to determine whether an advertisement is truthful and, thus, not false, deceptive or misleading:
- Does the advertisement contain material false claims or misrepresentations of material fact?
- Does the advertisement contain material implied false claims or implied misrepresentations of material fact?
- Are there any omissions of material fact from the advertisement?
- Are you able to substantiate material objective claims and personal representations made in the advertisement?
In the event that your advertisement is found to be false, deceptive or misleading, you may be sued by the Federal Trade Commission (FTC) for disseminating such an advertisement to the public. Further, the FTC may fine you and enjoin you from disseminating the advertisement in the future. Perhaps most detrimental in this situation are the enforcement powers of the applicable state medical board, which could sanction you for inappropriate advertising as promulgated by the relevant medical practice act. Such sanctions could include fines, probation and, in egregious cases, suspension of your license.
Generally, state laws also prohibit physician advertisements that are false, misleading or deceptive. In Illinois, for example, advertisements by physicians cannot contain “false, fraudulent, deceptive or misleading material or guarantees of success, statements which play upon the vanity or fears of the public, or statements which promote or produce unfair competition.”
Many laws also categorically restrict or prohibit certain types of advertisements. For example, advertisements containing endorsements or testimonials by patients, colleagues, family members, friends, actors, celebrities, and others are frequently restricted—or prohibited altogether. Illinois’ Medical Practice Act, for example, deems it unlawful for a physician to use testimonials to entice the public. Under Texas’ laws, however, an advertisement is false, deceptive or misleading if it “contains a testimonial that includes false, deceptive, or misleading statements, or fails to include disclaimers or warnings as to the credentials of the person making the testimonial.”
A recent advertisement for a health care procedure that featured a world-recognized athlete, along with a statement about his satisfaction with the procedure, was found to be in violation of a state’s physician advertising law and was prohibited from further dissemination in that state. The physician whose practice was linked to the advertisement was found to have violated the state’s statute and was subjected to disciplinary action.
The American Medical Association’s (AMA) Code of Medical Ethics warns that “testimonials of patients as to the physician’s skill or the quality of the physician’s professional services tend to be deceptive when they do not reflect the results that patients with conditions comparable to the testimoniant’s condition generally receive,” and further states 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.”
Typically, state laws provide state attorney generals the power to sue physicians who have engaged in false or deceptive advertising and may impose monetary fines or enjoin the physician from further disseminating the advertisement at issue. State law may also permit patients to sue the physician for monetary damages, if the patient can prove that he or she was injured by the physician’s false or deceptive advertisement.
Even if an advertisement does not appear to be in violation of a state’s laws, it is important to be aware of advertisements that cross state lines. Although Dr. M’s practice is located in New York, he was interested in attracting patients from neighboring cities in New Jersey and Pennsylvania, so he intended to publish his advertisements in newspapers in select cities in all three states. Thus, I reviewed Dr. M’s advertisements not only in light of New York laws regarding physician advertising, but also considering those laws in New Jersey and Pennsylvania.
While advertising can prove lucrative, increasing a medical practice’s patient base, it is imperative to incorporate a lawyer well versed in federal and state physician advertising laws into your marketing team. When a physician contracts with a marketing consultant or advertising group, I often negotiate a representation in the service agreement stating that the advertisement complies with applicable federal and state laws. If the advertising agency makes a mistake, the physician may sue for damages. Unfortunately, that defense would not be viable in a hearing before the state board. You, the physician, are always ultimately responsible for the advertisement and for protecting your license.
Steven M. Harris, Esq., is a nationally recognized health care attorney and a member of the law firm McDonald Hopkins, LLC. He may be reached at [email protected].