A rheumatologist I know recently decided to launch a marketing campaign in an attempt to increase his patient base and enhance the reputation of his practice in the community. As part of these marketing activities, he hired an advertising agency to develop a campaign that would appear in local media outlets. While he 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 the law. I urged the rheumatologist to have me review the advertisements before they were published to ensure that they did not violate state and federal laws.
While it can be exciting to work with a creative team to develop an advertising campaign, rheumatologists should be sure that the ads for their practices or services do not violate state and federal laws.
Laws Governing Advertisements
Advertisements by physicians are legal under the Federal Trade Commission Act (the Act), provided that the 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 under the Act:
- Does the advertisement contain material false claims or misrepresentations of material fact? In general, if an ordinary and prudent person’s behavior would likely be affected by a false claim or misrepresentation of fact, then it is considered “material” and would be in violation of the Act.
- Does the advertisement contain material implied false claims or implied misrepresentations of material fact? Even if an advertisement does not contain direct false claims or misrepresentations of material fact, the advertisement may nevertheless be in violation of the Act if it implies false or unjustified expectations about the physician or the physician’s services.
- Are there any omissions of material fact from the advertisement? If the omission of a fact would make the advertisement misleading to an ordinary and prudent person, then it is in violation of the Act.
- Are you able to substantiate material objective claims and personal representations made in the advertisement? All claims and representations made in the advertisement must be supported by objective evidence.
In the event that a physician’s advertisement is found to be false, deceptive, or misleading, the physician may be sued by the Federal Trade Commission (FTC) for disseminating the advertisement to the public. Further, the FTC may fine the physician and enjoin him or her from further disseminating the advertisement in the future.
Most states’ 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.” Texas law permits advertising by physicians “so long as such information is in no way false, deceptive, or misleading.”
Many state 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, etc., are frequently restricted or prohibited altogether. The Illinois Medical Practice Act, for example, states that it is unlawful for a physician to use testimonials to entice the public. Under Texas’ laws, on the other hand, an advertisement containing “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” is prohibited.
A recent advertisement for a healthcare procedure featuring a world-recognized athlete and a statement about his satisfaction with the procedure was recently found to be in violation of a state’s physician advertising laws and was prohibited from being further disseminated in that state. The physician whose practice was linked to the advertisement was found to have violated the state’s statutes and was subject to disciplinary action.
The American Medical Association’s (AMA’s) 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 “[o]bjective 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 the statements are representative of the experiences of that physician’s patients.”
The Consequences
If a physician violates state laws governing advertisements, the physician may be subject to a variety of ramifications. Typically, laws provide state attorneys general 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.
Often, state medical boards may also sanction physicians for inappropriate advertising by imposing fines, placing the physician on probation, and, in egregious cases, suspending the physician’s medical license. 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. For example, a rheumatology practice that is located in New York may want to attract patients in neighboring cities in New Jersey and Pennsylvania.
As part of the marketing campaign, the practice may choose to publish advertisements in newspapers in select cities in the three states. In this situation, the advertisement should be reviewed in light of the laws on physician advertising in all of the states where the advertising will appear.
While advertising can increase a medical practice’s patient base, the physician should strongly consider hiring a lawyer well versed in federal and state physician advertising laws. When one of my physician clients contracts with a marketing consultant or advertising group, I often negotiate a representation in the service agreement that the advertisement complies with applicable federal and state laws.
If the advertising agency makes a mistake, the physician may sue the agency for damages. Unfortunately, that defense would still not be viable in a hearing before the state medical board. It is the physician who is always ultimately responsible for the advertisement and his or her license may be at risk.
Steven M. Harris, Esq., is a nationally recognized healthcare attorney and a member of the law firm McDonald Hopkins, LLC. Steve may be reached at [email protected].
