Weiss Zarett Brofman | Sonnenklar & Levy, P.C. | Attorneys At Law

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Principles For Physician Advertising and Social Media

On Behalf of | Jan 21, 2014 | Healthcare Law

Principles For Physician Advertising and Social Media

Social media has become a popular and prevalent form of marketing among various professionals, including physicians.  Whether a website, Facebook page or LinkedIn profile, there are, however, a series of federal and state legal requirements and prohibitions that must be taken into account. While each type of social media use must be assessed on a particularized basis, some broad stroke concepts are as follows:

New York Education Law § 6530 (27), regulates physician advertising through the professional misconduct prohibitions. In addition to prohibiting false, fraudulent, misleading, “sensational” or

“flamboyant” advertising, New York law prohibits the use of patient testimonials irrespective of patient consent. Likewise, physicians should be careful not to make statements regarding their supposed superiority as practitioners, or offer guarantees regarding the outcome of services provided. Physicians must also be able to support the claims made in their advertisements.  As an administrative matter, physicians are required to maintain an exact copy of each advertisement, transcript, tape or video tape (depending on the medium of advertisement used), for a period of one year after its last appearance.  The Education Law also prohibits “demonstrations, dramatizations, or other portrayals of professional practice … in advertising on radio or television.”  An unsettled question is whether this prohibition would be extended to video media content on the internet.

Under federal law, the legal standard is less specific. Advertisements by physicians are permissible under the Federal Trade Commission Act, provided such advertisements are not false, deceptive or misleading.  Physicians are also responsible for claims that are reasonably implied from their statements.  Therefore, even if an advertisement does not contain actual false claims or misrepresentations of material fact, the advertisement may nevertheless be in violation of the FTC Act if it implies false or unjustified expectations about the physician or the physician’s services.  These rules apply to all advertisements, including patient testimonials, which, in contrast to New York law, are allowed under federal law. In addition, physicians must be able to substantiate all objective claims they make about a product or service.

Physicians should also familiarize themselves with the applicable guidelines and policies promulgated by the American Medical Association (“AMA”) and Federation of State Medical Boards (“FSMB”). The AMA guidelines, for instance, suggest that physicians use privacy settings to safeguard personal information and content on social networking sites (realizing that such settings are not absolute and that once on the Internet, content likely is there permanently), and monitor their Internet presence to ensure that the personal and professional information is accurate and appropriate.  The AMA also issued a series of ethical opinions on the use electronic media by physicians. Those ethics decisions address a variety of issues including the appropriate use of email communications, notice requirements, restrictions thereon, and related privacy and confidentiality concerns arising under state law, HIPAA and HITECH. Physicians responsible for the health-related content of an online site should ensure