Even if an advertisement does not appear to be in violation of a state’s laws, it is important to be aware of advertisements that cross state lines. For example, a rheumatology practice that is located in New York may want to attract patients in neighboring cities in New Jersey and Pennsylvania.
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As part of the marketing campaign, the practice may choose to publish advertisements in newspapers in select cities in the three states. In this situation, the advertisement should be reviewed in light of the laws on physician advertising in all of the states where the advertising will appear.
While advertising can increase a medical practice’s patient base, the physician should strongly consider hiring a lawyer well versed in federal and state physician advertising laws. When one of my physician clients contracts with a marketing consultant or advertising group, I often negotiate a representation in the service agreement that the advertisement complies with applicable federal and state laws.
If the advertising agency makes a mistake, the physician may sue the agency for damages. Unfortunately, that defense would still not be viable in a hearing before the state medical board. It is the physician who is always ultimately responsible for the advertisement and his or her license may be at risk.
Steven M. Harris, Esq., is a nationally recognized healthcare attorney and a member of the law firm McDonald Hopkins, LLC. Steve may be reached at email@example.com.