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7 Dangerous Legal Issues to Avoid in Doctor Advertising
Fundamentals That Keep Your Medical Provider Marketing in the Safe Zone
First in a Series: Ethical and professional advertising messages steer physician and healthcare provider advertising away from legal problems. We talk with a healthcare attorney about the proper handling of basic legal problem areas.
A legal mistake in healthcare advertising can ruin your
life.
In the most extreme circumstances healthcare providers in
every profession risk their reputation, their license and
their livelihood if their marketing efforts run afoul of the
maze of local, state or federal laws and regulations. And
at the very least, a misstep can be a really bad PR experience.
In our many years of working with healthcare providers and
their marketing efforts, we've never had a problem. Perhaps
that's because we're conservative, we've got a lot of professional
experience, and we want our clients and readers to steer clear
of problem areas.
But we do hear horror stories.
In this first of a series article, we offer some elementary
marketing "stay out of trouble" tips for healthcare
providers. And since we are not attorneys (and we're not offering
legal advice here), we talked to health care lawyer, consultant
& blogger David Harlow (twitter.com/healthblawg).
"While some would say that the so-called 'learned professions' look a lot more like businesses these days, they are still held to higher standards when it comes to marketing and advertising. The primary risk for a professional coming in her licensing board's crosshairs is a board sanction, which could be a reprimand, a suspension or even a revocation of her license.
"Thus it's important—and a lot easier—for healthcare providers to avoid legal hassles in marketing and advertising by getting legal advice in advance, than it is to get untangled if they make a mistake," according to Attorney Harlow.
35 years ago, professional advertising was illegal
Healthcare providers and hospitals essentially did not advertise
prior to 1977. It was the legal profession itself that championed
the issue of advertising by professionals. The effort led
to a landmark US Supreme Court decision (Bates v. State Bar
of Arizona. 1977) which said that state bar associations could
no longer universally prohibit attorney advertising. And that
opened the door to relaxing the rules about advertising in
the medical professions.
It was also 1977 when the American Hospital Association sponsored
its first symposium on marketing. But in the 30-plus years
since, the adoption curve was gradual. Many doctors, dentists
and other providers have maintained a conservative attitude
and go-slow approach.
For older, established doctors, the concept of advertising
was distasteful, maybe even unprofessional. Younger doctors,
however, who are newer in practice and dealing with a highly
competitive business environment, are more accepting of marketing
and advertising.
Today, many, if not most, professionals are open to a conservative
approach to advertising that is tasteful, professional and
ethical.
7 legal concerns about doctor advertising...
What follows is not an exhaustive list of cautions, but these seven items are primary areas of sensitivity for healthcare advertising.
- Be truthful. This one may seem black-and-white
obvious, but trouble may lurk in gray areas or in "spin"
regarding effectiveness or results. Medical boards and state
regulations expect legitimate, reliable data in support
of claims.
- Revealing previous patient detail. "A
lot of writing about patients which is thought to be anonymized,
is not as anonymized as you might think," according
to David Harlow. "Under HIPAA, there are basically
18 key categories of personal health information that can
lead to patient identification and it's easy to inadvertently
cross the line."
The safer approach is a completely fictional composite, or a no-compensation, signed patient release. (HIPAA has established standards for a proper release; check with your attorney.)
- Be clear about expectations. Avoid testimonials
or examples that imply, promise or guarantee results. A
disclaimer such as "your results may vary" may
be appropriate. Avoid claims of competitive superiority,
cures or promises of outcomes.
- Advertise the doctor. In medical procedures
that involve a pharmaceutical product or medical device,
such as dental implants or even a hip replacement, advertise
the provider or the service, not the device.
- Not everyone is a specialist. Having
extensive experience or expertise does not a specialist
make. In legal terms, claiming to be a "specialist"
typically requires a recognized certification.
- Advertising doesn't stop at the border (especially
online). Know the laws of your state, but rules
and regulations vary from state to state, so consider where
and how an advertising message may need to accommodate the
differences.
- Get good counsel. Most professional
societies have marketing and advertising guidelines. What's
more, many associations offer legal counsel as a member
benefit.
"I like to say that I practice preventive law,"
says Harlow. "Obtaining the advice of experienced counsel
in advance of embarking on a new marketing campaign—or
any new initiative—is an investment, and a bit of advance
planning that can help avoid financial and regulatory headaches
later on."
Clearly, there can be a lot at stake for any physician, surgeon,
dentist or healthcare provider. "But observing the basic
rules of the road keeps most professionals in safe advertising
territory," attorney Harlow adds. If in doubt about the
clarity and correctness of any advertising or promotional
message, seek qualified legal counsel.
Of course, a lot of clients hate paying for an hour or two
of legal advice, but patients also hate coming in for their
annual physical as well. In both cases, a little prevention
today can avoid a good deal of pain down the road.
OUR THANKS to David Harlow, (www.harlowgroup.net)
a respected health care attorney and thought leader in health
care law and policy. Mr. Harlow is a charter member of the
Advisory Board of the Mayo Clinic Center for Health Care Social
Media and has lectured extensively on health law topics to
attorneys and to health care providers. His blog, HealthBlawg
:: David Harlow's Health Care Law Blog, is nationally
recognized as a leading health care law and policy blog. (david@harlowgroup.net)
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