By Al Anthony Mercado, Esq.
The healthcare industry is a highly competitive market. In 2017, Zocdoc conducted a national study of physicians and office managers and found that the average medical office practice spent $1,371 each month on marketing. Of that amount, $669 was spent on digital marketing and $512 on offline marketing efforts.
There are many positive aspects to marketing and advertising in the healthcare industry. However, there are also risks associated with advertising as a healthcare provider. Understanding the additional liability risks associated with advertising is crucial to protect yourself from professional liability claims, contractual claims and violations of the Federal Trade Commission Act, New York State Education Law 6530(27) and NYS General Business Law. A provider has a non-delegable duty regarding advertising liability and will be held accountable for material appearing in internet advertising, as well as on websites and social media.
The following is information to keep in mind when creating advertisements for your healthcare practice.
Increased Professional Liability Risks: The content of advertising, websites and social medical can increase a provider’s professional liability risk. Efficacy and safety claims in advertising can create a higher standard of care in professional liability claims. This would include claims such as “we practice to the highest standards of medicine” or “we have had more success in treating this condition than any other practice in the area.” A patient plaintiff can use such advertising claims against a provider to show that “highest standards” were not met or that their treatment was “unsuccessful.” If efficacy or safety claims are to be used in advertising, make sure that such claims can be substantiated with objective data. In addition, a disclaimer should be used indicating that these claims are not guarantees.
Contractual Liability Risk: Like the increased professional liability risk, efficacy and safety claims can also give rise to contractual risks. A patient plaintiff can allege that the advertising claims created a guarantee, expectation or warranty as to a result. Such allegations can be problematic because they may not be covered by a professional liability insurance policy. A disclaimer stating that there is no guarantee or warranty can mitigate the risk of a contractual liability from advertising.
Statutory Risks Associated with Healthcare Advertising
Federal Trade Commission Act (FTC):
The FTC has jurisdiction over advertising appearing in various forms on the internet. The FTC Act defines advertising as follows:
- print, radio and TV advertisements;
- Internet advertisements;
- social media platforms such as Facebook and Twitter;
- patient informational brochures; and
- informational media (streamed internet content).
To maintain compliance and avoid a violation of the Act, the FTC recommends the following guidelines:
- advertisements should be accurate and not contain explicit or implied false claims or misrepresentations of fact;
- there should be no omissions of material facts from advertisements; and
- providers must be able to substantiate material claims and personal representations made in advertisements.
New York State Education Law 6530 (27):
The New York State Education Law 6430(27) considers physician advertising as professional misconduct if it:
- is fraudulent, deceptive or misleading, sensational or flamboyant;
- uses testimonials;
- guarantees any service;
- makes any claim relating to professional services, products or the cost/price which cannot be substantiated by the provider; and
- uses demonstrations, dramatizations or other portrayals of professional practice in advertising on radio or television.
NYS General Business Law:
General Business Law 349 and 350 provide a broad prohibition against all “unfair and deceptive practices” in advertising, including internet advertising, websites and social media. Violations of this statute have been pleaded against providers in medical malpractice cases involving procedures, treatments and inducements. The NYS Attorney General has the authority to file charges and levy monetary penalties.
HIPAA and NYS Public Health Law
The use of photographs and testimonials of patients without their express written consent can violate both HIPAA and the NYS Public Health Law. Similarly, communication with patients on social media through responding to positive comments and negative reviews can also violate HIPAA and NYS Public Health Law. Providers must ensure that they obtain express written consent from the patient to use a photograph or testimonial. It is recommended that providers avoid online responses with patients.
When developing your advertising campaign, MLMIC recommends carefully scrutinizing all advertising that refers to or relates to claims of efficacy, safety, predictability and success rate. The following is language to avoid in advertising:
- “Our procedure is the safest.”
- “we can essentially cure;” and
- “our physicians are experts in….”
Superlatives such as “best care” and “highest quality of care” should be avoided. As noted above, such advertising may hold a provider and/or their entity to a higher standard of care during litigation.
Medical professional liability policies typically exclude coverage arising out of advertising activity or giving medical advice to a “general audience” either personally, electronically or otherwise. Keep in mind that malpractice liability claims may arise if social media posts, blogs or other electronic communications are construed as specific medical advice or relied upon by patients.
For risk management tips on using social media in healthcare see here.
Additionally, MLMIC offers educational programs on this topic as well. To schedule a program, contact Matthew Lamb, Esq., at firstname.lastname@example.org.
For questions about advertising liability or to request a website/social media review, contact Al Anthony Mercado, Esq., at email@example.com.
Al Anthony Mercado, Esq. is a Managing Attorney of the downstate region of the law firm Mercado May-Skinner (MMS) and an employee of MLMIC Insurance Company.