Most states’ laws also prohibit physician advertisements that are false, misleading, or deceptive. In Illinois, for example, advertisements by physicians cannot contain “false, fraudulent, deceptive, or misleading material or guarantees of success, statements which play upon the vanity or fears of the public, or statements which promote or produce unfair competition.” Texas law permits advertising by physicians “so long as such information is in no way false, deceptive, or misleading.”
Many state laws also categorically restrict or prohibit certain types of advertisements. For example, advertisements containing endorsements or testimonials by patients, colleagues, family members, friends, actors, celebrities, etc., are frequently restricted or prohibited altogether. The Illinois Medical Practice Act, for example, states that it is unlawful for a physician to use testimonials to entice the public. Under Texas’ laws, on the other hand, an advertisement containing “a testimonial that includes false, deceptive, or misleading statements, or fails to include disclaimers or warnings as to the credentials of the person making the testimonial” is prohibited.
A recent advertisement for a healthcare procedure featuring a world-recognized athlete and a statement about his satisfaction with the procedure was recently found to be in violation of a state’s physician advertising laws and was prohibited from being further disseminated in that state. The physician whose practice was linked to the advertisement was found to have violated the state’s statutes and was subject to disciplinary action.
The American Medical Association’s (AMA’s) Code of Medical Ethics warns that “testimonials of patients as to the physician’s skill or the quality of the physician’s professional services tend to be deceptive when they do not reflect the results that patients with conditions comparable to the testimoniant’s condition generally receive,” and further states that “[o]bjective claims regarding experience, competence, and the quality of physicians and the services they provide may be made only if they are factually supportable. Similarly, generalized statements of satisfaction with a physician’s services may be made if the statements are representative of the experiences of that physician’s patients.”
The Consequences
If a physician violates state laws governing advertisements, the physician may be subject to a variety of ramifications. Typically, laws provide state attorneys general the power to sue physicians who have engaged in false or deceptive advertising and may impose monetary fines or enjoin the physician from further disseminating the advertisement at issue.
Often, state medical boards may also sanction physicians for inappropriate advertising by imposing fines, placing the physician on probation, and, in egregious cases, suspending the physician’s medical license. State law may also permit patients to sue the physician for monetary damages, if the patient can prove that he or she was injured by the physician’s false or deceptive advertisement.
