Doctors have duty to examine ads that will use their names

What are risks for doctors who lend names or images to a marketing campaign?

By — Posted June 3, 2013.

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Scenario Because U.S. medicine also is a business and, in many cases, a competitive one, more physicians are being asked to participate in marketing efforts of hospitals and health systems. Are there ethical limits to that type of involvement?

Reply Dapper Don Draper in the television show “Mad Men” is the quintessential advertising executive of the 1960s. Swilling drinks and puffing cigarettes, he ambles through life selling a carefree lifestyle and products to unsuspecting consumers. Although it is tempting to write off the unsavory tactics of the television advertising agency as a relic of a bygone era, one must ask whether the current advertising and promotion climate of social media, blogs and the Internet are any better.

Physicians historically have been wary of advertising and self-promotion. For years, advertising was frowned upon by leading medical societies (including the American Medical Association) as, at best, unprofessional and, at worst, unethical. In 1980, however, the Federal Trade Commission deemed that medical society restrictions restrained competition, and the limits were overturned. Yet one must remember that what is legal is not necessarily ethical or professional.

In many ways, physicians understand the bright line that separates ethical and unethical advertising to prospective patients under the same sense that they understand honesty in communication to their patients. Lying about medical skills or procedure outcomes in advertising to prospective patients is similar to lying about those same issues when obtaining informed consent. Similarly, physicians are trained to avoid coercion or enticement of research subjects with unsupportable claims about the research project and should apply that same standard to their own advertising language.

Claims that a physician is the “pioneer,” “thought leader” or “top of the class” are generally not supportable by independent data and should not be used in promotional materials. If those claims can be verified by factual data, such as “Top Doctor” surveys for which no compensation is provided, then claiming so would be ethical.

Pitfalls of group ads

When promotion and advertising move from the individual physician to a group of physicians or a practice, other considerations arise. It may be tempting to promote a group of female physicians as providing better care for women just because they are female clinicians, but that claim would be hard to support by independent data, and it would be unethical and discriminatory in the absence of such data. Discrimination in advertising against legally protected classes of prospective patients is unethical. However, the current opinion of the American College of Obstetricians and Gynecologists (Opinion 510) also states that medical advertising should avoid discrimination against patients on the basis of gender identity or sexual orientation.

Physicians have an ethical duty to examine any promotional or advertising materials that will use their name or the name of their practice group, regardless of the source of the materials. It is becoming more common for hospitals and large multispecialty groups to promote their “top doctors” as patient magnets. These advertising tactics must be viewed with suspicion, as the criteria upon which the designation was made often are obscure. For instance, most physicians would view a “rock star” doctor as the one with the best training and outcomes, where the hospital may view the doctor with the highest billing or most cash patients as the rock star. Although advertising invitations are flattering to the ego, the physician should question his or her motivation for accepting as well as the intent of the sponsoring entity.

Finally, it is important for physicians to consider the impact of certain types of advertising on the public's perception of the profession. What is not unethical may be distasteful and unprofessional. Our ability to care for our patients depends at least in part upon the trust placed in our profession as a whole. Loss of that trust is not worth the risk from a dubious advertising campaign. Just ask Don Draper.

Monique A. Spillman, MD, PhD, associate professor, Dept. of Obstetrics and Gynecology, University of Colorado Anschutz Medical Campus

Reply In a hybrid health care system such as ours in the U.S., medicine always will be to some extent a business. That is, it will provide goods and services for money. Within the business of health care, physicians' roles are special in several ways. First, physicians are point-of-service clinicians for the primary consumers — patients — in an industry that is top-heavy with people (e.g., insurers, government bureaucrats, hospital administrators) who do not provide (and may even be tasked with denying) patient services. Second, physicians' commitment to professional norms of “service” traditionally has played a greater role in their self-understanding than commitment to “profit.” Third, physicians enjoy a state-sponsored monopoly over the provision of certain services.

Each of these special characteristics gives impetus to the claim that physicians ought to focus on serving patients. The major caveats for physician involvement in hospital or health system advertising are that it will dilute physicians' focus on serving patients or undermine physicians' effectiveness in serving patients.

In that sense, there is nothing unusual or special about physician involvement in advertising, vis--vis their involvement in other nonservice-focused activities such as medical research or joint business ventures. In each case the fundamental liability is that physicians will be undermined in their primary task of benefiting patients. However, involvement in advertising may have less to commend it — and hence less to justify undertaking the liabilities — than some of these other activities. Unlike medical research, for instance, advertising is neither necessary for the advancement and effective practice of medicine, nor is it something that requires physician participation for success.

Accuracy is key

The main potential benefits for physician participation in hospital or health system advertisements seem to be related to enhancing the financial well-being of the institutions within which physicians work or enhancing the solidarity and common purpose that physicians share with others in their organization.

Neither of these objectives is directly antagonistic to serving patients, and indeed both could in some circumstances lead to benefits for patients (for instance by helping a hospital acquire effective but expensive equipment or contributing to cohesion within a treatment team). As long as physicians' involvement in advertising is relatively casual, contains no explicit or implicit deception and does not undermine physicians' effectiveness in serving patients (e.g., by undermining the reputation of the medical profession), it seems relatively unproblematic.

The challenge is in guaranteeing that these conditions pertain. For instance, most hospital advertisements seem to hinge on creating images of friendliness, caring and competence. In the absence of evidence that such hospitals are particularly friendly, caring or competent — especially when compared with competitors against whom the advertisement is designed to provide a leg up — do such advertisements create subtle deceptions? And to what if any degree does mere participation in advertising harm physicians' image in the eyes of the public?

My own disquiet about the latter two questions, coupled with skepticism about the likely magnitude of any benefits, has led me to refrain from involvement in advertising. Nevertheless, acceptance of physicians in advertising is on the rise among physicians and the public, and the likelihood that physicians or the medical profession will be greatly undermined through participation in advertising seems small. Furthermore, the “subtle deception” I have described is common in advertising, is well understood by most adults (even as they are susceptible to it) and seems not to be of sufficient magnitude to undermine patients' informed decisions. Hence, any call for a legal or intra-professional ban on physician involvement in advertising is, in my opinion, misguided.

Griffin Trotter, MD, PhD, professor, Albert Gnaegi Center for Health Care Ethics, Saint Louis University

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External links

“Ethical Ways for Physicians to Market a Practice,” American College of Obstetricians and Gynecologists Committee Opinion 510, November 2011 (link)

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