Risk Management

Understanding the Basic Rules of Advertising

By Amy B. Angert, JD

[Argus, December, 1993]

Ophthalmologists who advertise their services often face confusing legal and ethical restrictions. Advertising professional services is different from advertising commercial products or services. Puffery or exaggeration, common in advertising nonprofessional services or goods, is prohibited in the medical arena. In fact, such advertising may be considered deceptive and subject the ophthalmologist to fines or licensing investigations. It is essential for the ophthalmologist to understand the basic rules governing medical advertising and to weigh the benefits against the possible risks.

What Is Physician Advertising?

Ophthalmic professional advertising consists of communications to the public, prospective or current patients, professionals or other people for the purpose of soliciting or encouraging the use of the physician’s services. Advertising may be verbal or written and includes magazine or newspaper ads, telephone directory displays, radio and television spots, promotional flyers, leaflets and brochures. The advertising for which an ophthalmologist can be held responsible includes those ads placed directly by the practitioner as well as communication for the ophthalmologist’s services disseminated by other entities such as hospitals or clinics. In other words, the ophthalmologist is liable for any method that promotes the use of the physician’s services which the ophthalmologist is directly or indirectly responsible for placing.

Who Regulates Advertising?

A multitude of federal and state entities monitor and enforce advertising rules and regulations. One premise common to all regulatory entities: physician advertising must be truthful and not misleading. Advertisements may not directly or indirectly make false claims or misrepresent material facts. Likewise, they must not omit essential or material facts, and any claims made in advertisements must be able to be substantiated. Unfortunately, these basic premises are deceptively simple and often are more difficult to implement than they appear.

The goal of all advertising regulation is to prevent the use of undue influence or coercion regarding the need for ophthalmic care. It is believed that medical advertising has greater potential to influence because target groups may be seriously ill, infirm or suffer from impaired judgment, predisposing them to believe exaggerated claims or promises. Or, advertising may target vulnerable groups that are incapable of critically evaluating the advertisement itself. Medical advertising must not be false, deceptive or misleading.

Federal and state antitrust laws protect physicians who want to truthfully advertise their services. The Federal Trade Commission is primarily responsible for enforcing federal antitrust laws; state attorneys general enforce state antitrust laws. Medical associations are prohibited from impeding truthful advertising by physicians.

The basic premise of these laws is the idea that truthful advertising benefits people by making them better informed. The U.S. Supreme Court in a series of opinions has ruled that truthful advertising is protected under the U.S. Constitution’s First Amendment right to free speech.

These protections extend only to truthfuladvertising. Untruthful advertising is not protected by state or federal antitrust laws or by the First Amendment. If an ad is deemed false or deceptive, the physician may be subject to federal or state action, including litigation or substantial fines.

Physician advertising is evaluated from legal as well as ethical perspectives. Laws, in the form of statutes or administrative rules, generally are enforced by state boards of medicine or state attorneys general. Investigations by these entities are confined to determining the legality of the ad and the disciplinary action required.

Ethical scrutiny is often more subjective and less specific than legal scrutiny. Frequently, it is the province of national, state and local medical associations that publish guidelines or opinions to assist practitioners in their advertising practices. Some have panels available to review their members’ ads and to offer guidance in meeting ethical requirements. Inquiry and disciplinary action generally are confined to evaluating whether the practice is ethical and what remedial action is required.

Ophthalmologists with specific questions regarding the legal or ethical sufficiency of an advertisement should consult an attorney experienced in this area. OMIC’s Risk Management Department, the Academy’s Ethics Unit, state boards of medicine, or local ophthalmic medical societies also may be able to provide guidance.

Hidden Pitfalls

In addition to meeting ethical and legal restrictions, the ophthalmologist must consider the impact of advertising on the patient. While advertising generally has produced more informed and better educated patients, the treating ophthalmologist may have to contend with a patient who already has misconceptions or unrealistic expectations as a result of the physician’s or anyone else’s advertising.

If the ophthalmologist does not identify these misconceptions or unrealistic expectations as they relate to the patient’s circumstances, the physician may be hindered in future informed consent discussions. If this patient sustains a poor or less than perfect outcome from a procedure, even if it is well within the range of outcomes accepted for that treatment regimen, the patient will be dissatisfied and may feel deceived. Dashed expectations often are the driving force behind litigation. The patient needs to know at the outset, before care is rendered, what result is reasonable to expect in the face of his or her particular circumstances. If the case is a difficult one, the ophthalmologist should encourage the patient to get a second opinion.

Ophthalmologists who advertise also must consider how their ad will sound to a jury. Any good plaintiff’s attorney will subpoena ads generated from a doctor’s office and exploit their impact at trial. Plaintiffs often will claim they were seduced or influenced by representations made in the doctor’s advertising. Such claims have tremendous jury appeal and can, in fact, be the decisive factor between a defense verdict and a jury award.

Consider the ophthalmologist who advertises that laser surgery for treatment of cataracts or glaucoma is safe, harmless and painless. Not only does the ad violate federal and state truthful advertising rules, but it also runs afoul of ophthalmic ethical guidelines. The ad is false, deceptive and misleading. The promise of painless surgery is a lure to attract patients who fear conventional surgery. To patients, such a statement implies that the entire event is painless and fails to address the possibility of postoperative complications, the pain associated with the anesthetic injection, or normal postoperative discomfort. Claiming that the procedure is safe is misleading or even outright false. The patient may construe the claim to mean that the procedure is entirely without risk or safer than other options. Claims of safety may influence the patient’s choice over another equally viable alternative procedure. This ophthalmologist would have difficulty defending such a claim in a courtroom even if the physician had advised the patient of the inherent risks associated with the procedure because the seductive message generated by the ad probably would outweigh any informed consent the doctor might claim the patient made.

Any ophthalmologist who advertises should consider how the ad text would sound to a jury in the face of claims of alleged negligence or lack of informed consent. If the ad claims cannot be substantiated, if they overreach in their claims or are subject to multiple interpretations, the ad should be revised or rejected.