By Mathew J. Levy, Esq
In today’s digital age, medical professionals increasingly turn to online platforms to market their services. However, navigating the complex landscape of legal and ethical guidelines is crucial to ensure compliance, especially concerning the use of patient testimonials in advertising.
Legal and Ethical Advertising Guidelines Journal of Ethics
The American Medical Association (AMA) sets forth guidelines that emphasize the importance of truthful and non-deceptive advertisements. Patient testimonials, while powerful, can mislead if they suggest atypical outcomes. Consequently, many jurisdictions impose strict regulations on their use to maintain public trust and integrity in medical advertising.
For instance, New York Education Law §6530(27) classifies the use of patient testimonials in advertising as professional misconduct, explicitly prohibiting practices such as:
- False, fraudulent, deceptive, misleading, sensational, or flamboyant advertising;
- Advertising that represents intimidation or undue pressure;
- The use of testimonials or guarantees of any service;
- Claims about professional services or products that are unsubstantiated by the licensee;
- Claims of professional superiority that cannot be substantiated;
- Offers of bonuses or inducements other than discounts on established fees or prices.
This legal framework reflects New York’s firm stance against using patient testimonials, equating them with the unethical promise of specific results, which are unlikely for the average patient.
Risks and Management of Online Advertising Federal Trade Commission
Despite the prohibitions, testimonials remain a commonly seen element in physician marketing, driven by competition and the increasing scrutiny from regulatory bodies like the Office of Professional Medical Conduct (OPMC). OPMC does not currently mandate pre-screening of advertising but reviewing marketing materials against regulations is a prudent risk management strategy.
Many physicians may not realize that they cannot delegate the responsibility of ensuring compliance with advertising laws to internet marketing consultants. Violations identified through routine OPMC screenings can lead to significant legal challenges for the involved physicians.
HIPAA Compliance and Patient Privacy HHS.gov
Beyond advertising, physicians must comply with the Health Insurance Portability and Accountability Act (HIPAA) when using patient information in testimonials. Sharing patient stories without explicit, written consent violates privacy rights. Healthcare providers must obtain signed authorizations detailing how the patient’s information will be utilized.
Best Practices for Compliant Marketing
To navigate these regulations effectively:
- Avoid using patient testimonials in marketing materials.
- Ensure all claims are substantiated and not misleading.
- Obtain proper authorizations for using patient information.
- Regularly consult legal counsel to review marketing strategies.
By adhering to these guidelines, physicians can market their services effectively while upholding ethical standards and legal requirements.
About the Author:
Mathew J. Levy is a Shareholder/Director of the Firm and co-chairs the Firms corporate transaction and healthcare regulatory practice. Mr. Levy has extensive experience in, defending healthcare professionals in actions brought by State licensing authorities and Federal agencies. Mr. Levy has successfully defended numerous healthcare providers in actions involving the US Attorney’s Office investigations, Medicare Fraud Waste and Abuse investigations, Medicaid Fraud Control Unit investigations, OPMC, OPD, Medicare, Medicaid as well as commercial insurance audits. Mr. Levy has successfully structured and negotiated joint venture agreements, private equity transactions, venture capital transactions, stock purchase agreements, asset sale agreements, shareholders agreements, partnership agreements, employment contracts, managed care agreements and commercial leases. Mathew Levy can be reached at 516-926-3320 or [email protected]
Weiss Zarett Brofman Sonnenklar & Levy, P.C. is a Long Island law firm providing a wide array of legal services to the members of the health care industry, including corporate and transactional matters, civil and administrative litigation, healthcare regulatory issues, bankruptcy and creditors’ rights, and commercial real estate transactions.
This article contains general advice that is not designed to apply to the reader’s specific situation and does not constitute the formation of an attorney-client relationship.
ATTORNEY ADVERTISING: PRIOR RESULTS DO NOT GUARANTEE FUTURE OUTCOMES.