Physician advertising is controlled by state and federal laws and regulations. Violating these regulations can lead to medical board discipline and fines, can complicate the defense of liability claims, and may not be covered by medical liability insurance policies. State laws may also allow patients to sue the physician for damages if they were injured by the false or deceptive advertising.1
False advertising is not always intentional. Physicians can run afoul of these laws and regulations in a variety of unintentional ways:
- Advertising discounted or free services
- Misrepresenting their credentials and those of other clinicians and staff
- Using before-and-after photographs
- Using celebrity testimonials or endorsements
- Stating the effectiveness, safety or painlessness of treatment
Before engaging in any marketing or advertising, know the physician advertising laws in your practice jurisdiction and in any other state in which you will be advertising.
Allegation
The physician’s false advertisements of his board certification fraudulently induced the patient to choose him for treatment.
Case File
A physician’s website falsely stated he was board certified. According to the patient, she chose the physician based in part on the board certification claim. Her procedure was completed without complications; however, the patient was never satisfied with the results. She ultimately underwent a revision with a different physician, who told her the first surgeon had been negligent. The patient called her state medical board to file a complaint. During that process, she discovered the physician was not board certified. She then filed a lawsuit alleging malpractice, negligence per se, and negligent representation and fraud associated with the false claims of board certification.
Discussion
Defense experts believed the medical care rendered to the patient met the standard of care. However, the false board certification information on the website complicated the defense. Negligence per se allegations can be difficult to defend. In this case, state law prohibited physicians from falsely advertising board certification. There was no doubt that the physician had violated this statute. The patient argued that the statute against physicians falsely advertising board certification was put in place to protect patients like her from injuries caused by inadequately trained physicians.
To support her fraud allegations, she claimed the false certification statements were made to induce her to undergo treatment with the physician and she, in fact, relied on the false statements when she chose to undergo treatment. Not only did the false advertising claims complicate the defense, indemnification for advertising, misrepresentation, and fraud claims were not covered by the physician’s medical liability insurance policy.
The case was settled.
The physician was also disciplined by the medical board, which ordered him to remove the false claims from his website, pay a fine, and undergo continuing medical education (CME) in ethics and professional responsibility.
Medical Liability Risk Management Recommendations
Consider the following recommendation:2,3
- Know the physician advertising laws in your practice jurisdiction and in any other state in which you will be advertising.
- Be truthful.
- Do not promise or guarantee results.
- Avoid making claims related to cures and outcomes.
- Avoid using terms that rank your competence over other physicians (e.g., “top,” “world-famous,” or “world-class”).
- Carefully review fee structure, cost, refunds, and financing information to ensure that it is complete and not misleading.
- Accurately state board certification and ensure that statements are specifically associated with the appropriate physician in the practice.
- Do not state or imply board certification or specialty training that does not exist.
- If a procedure is experimental or unproven, do not state or imply that it has proven value or is accepted practice.
- If you hire a marketing or advertising company, ensure that they are familiar with healthcare advertising restrictions.
- Have advertisements reviewed by a healthcare attorney.
References
1. Steven M. Harris. “Advertise with Caution: State Laws Restrict How Physicians Can Market Themselves.” ENTtoday. 12/1/2010. (accessed 7/26/2019)
2. Stewart Gandolf. “7 Dangerous Legal Issues to Avoid in Doctor Advertising.” Healthcare Success. 7/21/2014. (accessed 7/26/2019)
3. “Ethical Ways for Physicians to Market a Practice.” Committee Opinion No. 510. American College of Obstetricians and Gynecologists. Obstetrics & Gynecology. 2011;118:1195–7. (accessed 7/26/2019)
