Advertising: A Legal Issue for MDs

At first glance, the Medical Practice Act is innocuously simple and straightforward on the issue of physician advertising. If it is false, deceptive or misleading, you may be disciplined for using it.

Fortunately, "false, deceptive or misleading" advertising has been defined by the administrative rules implementing the legislation. Prohibited are:

• A misrepresentation of fact; or
   
• Partial disclosure of relevant facts; or
   
• Anything that creates a false or unjustified expectation of beneficial assistance; or
   
• A representation or claim as to which the physician referred to in the advertising does not expect to perform; or
   
• Any representation or statement or claim which misleads or deceives; or
   
• Anything that states or implies that a physician has received formal recognition as a specialist in any aspect of the practice of medicine unless he has, in fact, received such recognition and such recognizing agency is approved by the Board of Medicine. The board approves the specialty boards of the American Board of Medical Specialties. This does not preclude a physician from indicating that his practice is limited to one or more types of services when this is, in fact, the case; or
   
• Representing that professional services can or will be competently performed for a stated fee when this is not the case, or making representations with respect to fees for services by physicians that do not disclose all variables affecting the fees that will, in fact, be charged; or
   
• Conveying the impression that the physician in the advertisement possesses qualifications, skills, or other attributes which are superior to other physicians, other than a simple listing of earned professional post-doctoral or other professional achievements recognized by the (Florida) Board of Medicine; or
   
• Failing to conspicuously identify the physician by name in the advertisement.

Physicians using television or radio for advertising must keep the tape of the advertisement for at least 90 days from the date when the advertisement is aired.

"Soliciting patients, either personally or through an agent, through the use of fraud, intimidation, undue influence, or overreaching or vexatious conduct" also constitutes grounds for disciplinary action.

Not only can you get in trouble with the Department of Professional Regulation (DPR) for your own advertising, but you also may be disciplined for conspiring with someone else in a venture which tends "to coerce, intimidate or preclude another license from lawfully advertising his services.

The potential for overreaching, undue influence and other abuses in giveaways and discounted services is such that legislature has codified the preceding language that must be used in these ads. Any advertisement for a free or discounted service, examination or treatment must contain this statement in capital letters:

THE PATIENT AND ANY OTHER PERSON RESPONSIBLE FOR PAYMENT HAS A RIGHT TO REFUSE TO PAY, CANCEL PAYMENT, OR BE REIMBURSED FOR PAYMENT FOR ANY OTHER SERVICE, EXAMINATION, OR TREATMENT WHICH IS PERFORMED AS A RESULT OF AND WITHIN 48 HOURS OF RESPONDING TO THE ADVERTISEMENT, THE FREE, DISCOUNTED OR REDUCED FEE SERVICE EXAMINATION OR TREATMENT.

The only exception to this rule is for advertisements in classified directories, the primary purpose of which provide free, reduced, or discounted price services to the elderly and only when the statement provided appears at least once in the directory.

Failure to put the disclaimer in the advertisement even when only a reduced fee is being offered is an often cited problem, according to DPR attorneys. The DPR also becomes very concerned with any advertisement that has a tendency to attract a large number of people for something that ostensibly is free.

In these situations, there are a multitude of potential problems including, what is referred to in the statutes as "overreaching." DPR attorneys say the potential patients should be advised to see their own physicians as a first recourse. In other words, a physician must be careful to refrain from soliciting patients at any free screening.

If free screenings are involved, it also is advisable that the physician be present. If the advertisement goes out with the physician's name on it and a non-physician from the staff conducts the free screening, this may constitute the practice of medicine by your assistant, which is prohibited.

Although not directly related to advertising, physicians also must be wary of agreements or contracts with outside firms that come into perform free or discounted services, Physicians are prohibited from entering into any financial arrangements with a non-physician, and if this arrangement is premised on the number of patients the outside service delivers to the physician, the DPR will regard this as "fee splitting," which is also prohibited.

There are other cases that start out as advertising cases but become manifest in something far more serious. The most striking example is in the area of co-payment.

A physician might advertise that services are being provided at no cost to Medicare patients and that the physician will absorb the traditional 20 percent co-payment. According to DPR attorneys, not only does this raise ethical problems, but it is also prohibited by the federal Medicaid laws.

This is the usual scenario. If the advertised fee is $100 and the doctor agrees to waive 20 percent of the fee, this costs the patient nothing. The federal government, however, construes this to mean that the fee is $80 and will only pay $60.

The impact upon this at the state level is substantial. What began as a simple advertisement now becomes a submission of a false bill, which the Board considers a very significant charge. The charge is most damaging when the DPR's survey of a physician's billing records reveals essentially two different types of billing: the normal fee and the inflated fee that is "discounted" in the advertising scheme.

These examples of advertising disciplinary problems are not meant to be all inclusive, and each physician should be guided by the statute and the rules interpreting the statute in his or her decision whether to advertise and how to advertise.