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FEBRUARY 12. 2015 – A medical practice, like any business, is in constant search of new customers. Long gone are the days where an HMO or PPO Directory guidebook will be a physicians best patient referral friend. It’s important to be aware that before you begin any promotion of your medical practice to the public, physician advertising efforts are restricted by both state and federal laws.
Stewart Gandolf wrote a story discussing these pitfalls in an article entitled: 7 Dangerous Legal Issues To Avoid In Doctor Advertising. In the article he notes that ’35 years ago, professional advertising was illegal.’
- Healthcare providers and hospitals essentially did not advertise prior to 1977. It was the legal profession itself that championed the issue of advertising by professionals. The effort led to a landmark US Supreme Court decision (Bates v. State Bar of Arizona. 1977) which said that state bar associations could no longer universally prohibit attorney advertising. And that opened the door to relaxing the rules about advertising in the medical professions.
- It was also 1977 when the American Hospital Association sponsored its first symposium on marketing. But in the 30-plus years since, the adoption curve was gradual. Many doctors, dentists and other providers have maintained a conservative attitude and go-slow approach.
For older, established doctors, the concept of advertising was distasteful, maybe even unprofessional. Younger doctors, however, who are newer in practice and dealing with a highly competitive business environment, are more accepting of marketing and advertising.
Today, many, if not most, professionals are open to a conservative approach to advertising that is tasteful, professional and ethical.
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According to Erika Adler*, a writer a Physicians Practice, she notes … ‘In most states, medical boards require physicians to avoid false, misleading, or untrue statements when engaging in advertising. Failure to do so can constitute “unprofessional conduct” and subject a physician to discipline. In addition, there are state consumer protection laws which prohibit false or deceptive physician advertising and, under the Federal Trade Commission (FTC) Act, the FTC has the authority to sue and levy fines against physicians who disseminate false or deceptive advertising.’
‘Although it seems obvious that physicians should be truthful in their advertisements, it’s not always clear what might be viewed as false, deceptive, or misleading. The FTC has developed rules which are generally followed by all states: (a) advertisements should be accurate and not contain explicit or implied false claims or misrepresentations of material fact; (b) there should be no omissions of material fact from advertisements; and (c) physicians should be able to substantiate material claims and personal representations made in an advertisement.’
‘In Ethics Opinion 5.02, the AMA provides guidance on physician advertising and states that physicians may publicize through any commercial publicity or other form of public communication (including any newspaper, magazine, telephone directory, radio, television, direct mail, or other advertising) provided the communication cannot be misleading.’
‘The AMA specifically warns that the public can be deceived by use of medical terms or illustrations that are difficult to understand, so physicians should design the form of advertisement in a readily comprehensible manner. Aggressive, high-pressure advertising and publicity should be avoided if they create unjustified medical expectations or are accompanied by deceptive claims.’
Gandolf also adds … What follows is not an exhaustive list of cautions, but these seven items are primary areas of sensitivity for healthcare advertising.
7 legal concerns about doctor advertising…*
- Be truthful. This one may seem black-and-white obvious, but trouble may lurk in gray areas or in “spin” regarding effectiveness or results. Medical boards and state regulations expect legitimate, reliable data in support of claims.
- Revealing previous patient detail. “A lot of writing about patients which is thought to be anonymized, is not as anonymized as you might think,” according to David Harlow. “Under HIPAA, there are basically 18 key categories of personal health information that can lead to patient identification and it’s easy to inadvertently cross the line.”The safer approach is a completely fictional composite, or a no-compensation, signed patient release. (HIPAA has established standards for a proper release; check with your attorney.)
- Be clear about expectations. Avoid testimonials or examples that imply, promise or guarantee results. A disclaimer such as “your results may vary” may be appropriate. Avoid claims of competitive superiority, cures or promises of outcomes.
- Advertise the doctor. In medical procedures that involve a pharmaceutical product or medical device, such as dental implants or even a hip replacement, advertise the provider or the service, not the device.
- Not everyone is a specialist. Having extensive experience or expertise does not a specialist make. In legal terms, claiming to be a “specialist” typically requires a recognized certification.
- Advertising doesn’t stop at the border (especially online). Know the laws of your state, but rules and regulations vary from state to state, so consider where and how an advertising message may need to accommodate the differences.
- Get good counsel. Most professional societies have marketing and advertising guidelines. What’s more, many associations offer legal counsel as a member benefit.
“I like to say that I practice preventive law,” says Harlow. “Obtaining the advice of experienced counsel in advance of embarking on a new marketing campaign—or any new initiative—is an investment, and a bit of advance planning that can help avoid financial and regulatory headaches later on.”
Clearly, there can be a lot at stake for any physician, surgeon, dentist or healthcare provider. “But observing the basic rules of the road keeps most professionals in safe advertising territory,” attorney Harlow adds. If in doubt about the clarity and correctness of any advertising or promotional message, seek qualified legal counsel.
Of course, a lot of clients hate paying for an hour or two of legal advice, but patients also hate coming in for their annual physical as well. In both cases, a little prevention today can avoid a good deal of pain down the road.
- By Stewart Gandolf on April 13, 2012 in ADVERTISING, DOCTOR MARKETING, MEDICAL MARKETING, PHYSICIAN MARKETING; http://www.healthcaresuccess.com/blog/doctor-marketing/dangerous-legal-issues.html; David Harlow, (www.harlowgroup.net) a respected health care attorney and thought leader in health care law and policy. Mr. Harlow is a charter member of the Advisory Board of the Mayo Clinic Center for Health Care Social Media and has lectured extensively on health law topics to attorneys and to health care providers. His blog, HealthBlawg :: David Harlow’s Health Care Law Blog, is nationally recognized as a leading health care law and policy blog. (firstname.lastname@example.org)
- May 30, 2012 | Law & Malpractice, Marketing By Ericka L. Adler; Understand the Legal Limits of Physician Advertising