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Ericka L. Adler, JD, LLM has practiced in the area of regulatory and transactional healthcare law for more than 20 years. She represents physicians and other healthcare providers across the country in their day-to-day legal needs, including contract negotiations, sale transactions, and complex joint ventures. She also works with providers on a wide variety of compliance issues such as Stark Law, Anti-Kickback Statute, and HIPAA. Ericka has been writing for Physicians Practice since 2011.
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.
A medical practice, like any business, is in constant search of new customers. But before you start any promotion of your medical practice to the public, be aware that physician advertising efforts are restricted by state and federal laws. The fact is a medical practice cannot be promoted in the same manner as any other type of business.
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.
The key issue, however, is whether advertising or publicity, regardless of format or content, is true and not materially misleading. The AMA states that the communication may include: (1) the educational background of the physician; (2) the basis on which fees are determined (including charges for specific services); (3) available credit or other methods of payment; and (4) any other non-deceptive information. In particular, the AMA warns about using testimonials of patients as to the physician’s skill or the quality of the physician’s professional services since such testimonials can be deceptive.
Testimonials are prohibited in some states.
To get a better idea of what these rules mean, consider the following:
1. If you are using endorsements and pictures, what message are you sending? Do the pictures communicate benefits that are attained by the average patient? Will they mislead patients’ expectations?
2. When making any representation about lack of pain involved in a service, be careful. Suggesting that a procedure is painless can raise concerns, especially if the services advertised are invasive. Every patient’s pain is subjective and varies.
3. If you are representing the safety or effectiveness of any service, make sure you substantiate with a reference to scientific support and do not simply use a phrase such as “safe.” No procedure is absolutely safe and patients should be aware that there is always risk.
4. Avoid using the word “cure” without explanation. Patients need to understand their true prospect for improvement so as not to expect something that cannot always be provided.
5. When promoting the qualifications of physicians, avoid terms such as “expert.” Patients are easily given an impression of skill and fame the physician may not actually have or which could be questioned.
Additionally, make sure to state the certifying board if claiming the physician is “board certified” and identify the board-certified physicians by name.
There are a number of deceptive and misleading advertising approaches in which physicians engage, even without intention to do so. It’s a good idea to make sure promotional materials are reviewed by counsel to assure compliance with federal and state laws, especially if advertising will be done via internet or across state lines. If you’re using a marketing company, make sure you choose one that is familiar with, and respects, laws that impact your medical license.
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