Ethical and Risk Management Issues Related to Advertising and Marketing

By Susan H. Day, MD

[Digest, Summer, 1996]

As competition increases and reimbursements decrease, more ophthalmologists are turning to advertising and marketing to maintain their patient base. Lacking experience or education in these areas, ophthalmologists usually rely upon marketing agencies or examples from other physicians for ad style and content. In any given community, printed advertisements can be found that attempt to offset or respond to previously run ads of perceived competitors; however, an ophthalmologist has to be careful not to respond to a deceptive or unethical ad by running one that is equally misleading.

Business Values Replace Traditional Values of Medicine

With the advent of refractive surgery, marketing efforts have increased as ophthalmologists declare their services in this new arena. Invariably, the subject of marketing surfaces whenever ophthalmologists attend courses or receive brochures pertaining to refractive surgery. A flurry of marketing activity by the companies manufacturing excimer lasers speaks to the perceived importance of advertising in order to be successful in the field of refractive surgery. Such marketing efforts are in large part conceived from the business aspect of refractive surgery: a service is being sold. The traditional values of medicine — the patient comes first; above all, do no harm; do what is in the best interest of the patient — do not appear to be the driving principle in this process. This shift in priorities increases one’s exposure to claims of lack of informed consent brought by patients who feel they are being “sold” a service rather than being given accurate information about a medical or surgical procedure.

The ethics of advertising within the medical profession has changed dramatically over the past 50 years. Expressly forbidden in some codes as “derogatory to the dignity of the profession,” ¹ advertising gained legitimacy in 1982 as a consequence of the Federal Trade Commission’s suit against the American Medical Association, which still restricted advertising in its Code of Ethics.² Future codes of ethics, such as the one adopted by the American Academy of Ophthalmology (AAO) in 1983, reflect this changed legal posture toward advertising. Historically, advertising has been used more by the medical specialist than the generalist,³ and this continues to be the case today if one can judge by virtually any urban yellow pages.

The goal of advertising is to sell a product or service. When limited to a message of either informational or educational objectives, truthful advertising with respect to medical services can serve a purpose to the general public. Problems may arise, however, when claims of superiority are made. This self-serving need of advertising is in conflict with the physician’s foremost responsibility to the patient.⁴ In addition, claims of superiority may raise the standard of care from one of the reasonably prudent physician to that of the superior physician, a more difficult standard for the physician to meet and a defense attorney to defend in court.

The power of word-of-mouth satisfaction from treated patients has been underscored as effective advertising by many⁵ and should not be ignored as an ophthalmologist reviews marketing options. Nevertheless, advertising remains a right of individuals, and professional organizations can offer only ethical perspectives on content. Insurance companies, however, have taken a proactive stance regarding the marketing of certain procedures, especially refractive surgery and CO₂ laser skin resurfacing. As a condition of receiving coverage for these procedures, OMIC insureds must agree to submit their advertisements to OMIC for approval prior to placing them in the newspaper, or on radio or television, etc. This approval process is a service that protects not only the individual insured but the Company as a whole from the increased exposure of malpractice claims that include deceptive or unethical ads.

Ethical Guidelines May Be Used in Court

Any advertising effort is an extension of an ophthalmologist’s practice. As such, ethical principles must be upheld. Truth, respect for a patient’s choice, doing what is right for the patient, and doing no harm are the cornerstones of ethical medicine, whether the service offered is cataract surgery, chemotherapy, or refractive surgery. To practice ethically is the key to a rewarding practice in medicine. Additionally, if these ethical principles are not upheld, they may spell disaster when a physician’s marketing becomes an issue in a lawsuit.

Through its Code of Ethics and advisory opinions on advertising, the AAO has provided guidelines on communications to the public. These guidelines call upon the integrity of the ophthalmologist rather than providing specific language to use or avoid. This design nevertheless is powerful and enforceable.

Furthermore, these guidelines have been relied upon by courts as relevant standards in lawsuits against ophthalmologists.

Communications must be accurate.
Communications must not be deceptive.
Communications should avoid appeals to anxieties and vulnerabilities.
Communications should not create unjustified expectations.
Communications should provide a realistic assessment of risks, benefits, and alternatives.
Communications should never misrepresent credentials.
Communications should not make claims of superiority that cannot be objectively substantiated.
All paid communication must be acknowledged.

Other national organizations, including the AMA and American Society of Cataract and Refractive Surgery, have very specific guidelines as well. Specific rules are outlined for such topics as use of patient testimonials, fee-related matters, claims of exclusivity of training or expertise, and promotion of equipment, devices, or drugs limited to those approved by the FDA. It is prudent to give these guidelines to anyone involved with the marketing of your practice.

Risk Management Pitfalls

Advertisements for medical services carry a greater responsibility than advertisements for cars, cable television, or athletic shoes. The professional nature of our services, the gap of knowledge between the potential patient and the physician, and the vulnerability of the potential patient contribute to the responsibility accompanying the privilege of being a physician. The AAO’s Ethics Committee is frequently called upon to review advertisements sent by patients or other physicians. Several areas have been identified as recurrent, potentially problematic areas. Often, an ophthalmologist will respond in one or more of the following manners in defense of his or her advertisement. The ethical and risk management pitfalls of these defenses are thus reviewed here.

I never approved the ad.
The responsibility for an advertisement rests with the individual ophthalmologist. An ophthalmologist cannot pass blame on to a marketing agent, an office business manager, or other party who has acted on the physician’s behalf.

All I did was copy what my crosstown competitor did in his/her advertisement.
Two wrongs do not make a right! The ethical or risk management issues do not take such arguments into account; each is judged on singular merit or lack thereof.

Of course I’m a pioneer/internationally renowned/ most experienced.
Claims of superiority place an added risk management burden on an ophthalmologist who has chosen to advertise in such a fashion. Such claims may be difficult to substantiate in a court of law.

The university/HMO advertises like this. I’m just trying to keep up.
Advertising by institutions has become increasingly popular. Understandably, the individual ophthalmologist often feels compelled to join in the fray. The rules — both ethical and legal — apply to each, and as such, the individual must maintain his or her own standards.

For the ophthalmologist already employed by or entertaining the possibility of employment by a larger institution, care must be undertaken to understand what rights the physician has in relationship to potential advertising campaigns.

Conclusion

Ethical behavior in conjunction with prudent risk management not only reduces the risk of malpractice litigation; it also assures that ophthalmologists incorporate principles into their practice that improve the overall quality of patient care.

Notes

Reiser SJ, Dyck AJ, Curran WJ. Ethics in Medicine, Historical Perspectives and Contemporary Concerns. MIT Press, Cambridge. 1982: 31.
AMA v. FTC. 455 US 676 (1982).
Martensen RL. Physician Advertising. JAMA. 1994: 1623.
Packer S. Physician Advertising. The Ethical Ophthalmologist: A Primer. American Academy of Ophthalmology. 1993: 123-24.
Hunkeler JD. Keeping an ethical eye on medical marketing.Wall Street Journal. 30 March 1995.