Plan to advertise? Be mindful of ethical, legal rules

A column examining the ins and outs of contract issues

By Steven M. Harrisis a partner at McDonald Hopkins in Chicago concentrating on health care law and co-author of Medical Practice Divorce. He writes the "Contract Language" column. Posted Oct. 19, 2009.

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A physician client of mine recently decided to undertake marketing efforts in an attempt to increase his patient base and enhance business. He retained the services of an ad agency to develop a campaign that would appear in newspapers.

While the doctor excitedly mentioned this new venture to me, I became concerned.

Even though advertising executives are experts in creative marketing, they don't always know how state and federal laws -- and state medical board regulations -- apply. If there's a problem, it's the physician -- not the advertising agency -- who gets in trouble.

Anyone who engages in false advertising can be subject to punishment under federal and state laws. But physicians have a few more rules, and a few more authorities to whom they must answer.

For example, they must answer to a state medical board. It may sanction physicians for inappropriate advertising, however defined. Such sanctions could include fines, probation and, in egregious cases, license suspension.

State laws make a point of spelling out what a physician can and cannot do. 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 laws also categorically restrict or prohibit certain types of ads. For example, advertisements containing endorsements or testimonials by patients, colleagues, family members, friends, actors, celebrities and other real people are frequently restricted or prohibited altogether.

Illinois' Medical Practice Act deems it unlawful for a physician to use testimonials to entice the public. Under Texas' laws, 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."

The American Medical Association'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."

The AMA's Code of Medical Ethics 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."

If a doctor is in violation of a state's laws governing advertisements, the physician may be subject to a number of ramifications. Typically, state laws give attorneys general the power to sue physicians who have engaged in false or deceptive advertising. Doctors also may face monetary fines or be enjoined from further disseminating the advertisement at issue.

State laws also may permit patients to sue the physician for monetary damages, if the patient can prove that he or she was injured by the doctor's false or deceptive advertisement.

In addition, any advertisement that will appear in more than one state must comply with the regulations of each state.

My physician client, whose practice is located in Illinois, was interested in attracting patients from Wisconsin and Indiana. As such, he intended to publish his advertisements in newspapers in select cities in all three states. Thus, I not only reviewed his advertisements in light of Illinois laws regarding physician advertising, but Wisconsin and Indiana laws on the issue as well.

When a physician contracts with a marketing consultant or advertising group, it is imperative that the contract complies with applicable federal and state laws, for doctors and in general. If the advertising agency makes a mistake, the physician may sue for damages. But that is not a viable defense for a physician in a hearing before the state medical board. It is the physician who always is ultimately responsible for the advertisement, and his or her license is at risk.

Steven M. Harris is a partner at McDonald Hopkins in Chicago concentrating on health care law and co-author of Medical Practice Divorce. He writes the "Contract Language" column.

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