7 Dangerous Legal Issues to Avoid in Doctor Advertising

Atty David Harlow

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. ([email protected])