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Online Advertising Pitfalls for Physicians

I’m slowly ramping up my marketing and considering some online campaigns for my medical practice. But it’s a little more nuanced regarding adverting a medical practice.

Several entities, including CMS, FDA, HIPAA, and state medical boards regulate physicians. Most of these are in place for a good reason to protect the consumer.

False Advertising Consequences

Plenty of physicians advertise their medical practice online and commit minor errors. Most of these errors will never impact us, but some can be used against us.

Imagine you advertise yourself as being available to your patients 24/7. Well, if the patient can’t reach you and something bad happens to them, they could hold you responsible; how you advertised yourself online can be used against you.

There are also fines that different entities can slap on you, and fighting such groups is a very tedious process. It’s best to not get on their radar.

Claiming Superior Outcomes

It’s one thing to be Harvard and claim that your surgeries have better outcomes – at worst, you’ll get a lawsuit that you can easily fight in court.

For a private practice physician, someone with a virtual primary care practice, if I claim that I practice at a higher level and have better outcomes, should I get dragged to court one day then I’ll be held to this proclaimed level and not the standard of care.

So, when it comes to the court system, do you want to be held to the standard of care or some elite-level care?

Advertising complication rates is fine as long as comparison to other medical groups is avoided. That can have negative consequences of slander.

FTC Regulations – Truth in Advertising

The FTC regulates advertising to ensure that you’re truthful and not misleading the consumer.

It is important to avoid making false or misleading statements or leaving out crucial details, as this could result in enforcement actions by the FTC.

Lumocity had to pay a large fine for certain allegations it made regarding its online program. And POM pomegranate juice got a similar fine for making health claims.

IV therapy and what it can cure, treat, or improve is another pitfall.

HIPAA and Patient Testimonials

I have testimonials here on this site but not on my patient-facing sites because any identifying information can potentially get me into trouble.

If doing so it’s necessary to have the patient’s consent in writing and follow proper guidelines to remain compliant.

This expands to replying to online reviews – whether negative or positive – your reply alone, regardless of what you say, may indicate a patient-doctor relationship if it was otherwise not insinuated by the patient.

I highly recommend Medical Justice for managing your online profile. They are great at what they do.

FDA Regulations

Apps and medical devices, and of course, medications these days, the FDA regulates many, and there are guidelines when referring to these items or advertising them.

During the recent pandemic, we saw a lot of warning letters issued to physicians by the FDA for making claims for their treatments, interventions, supplements, etc.

Bundling Costs and Fees

This is a bit confusing and requires more teasing out. But if you list a service for a set fee which includes medications, labs, or imaging studies, beware that you have little control over the third-party vendors and their costs.

If the imaging company goes out of business or drastically raises its prices, you are liable for the price you advertised and any headaches associated with that.

Board-Certification Claim

I “claimed” to be board-certified in 2018 when I did not renew my ABFM board certification. Instead, I certified with NBPAS. For this, I received a $500 fine.

So, if you claim to be a board-certified physician, watch out. What California considered board-certified is not what you might understand as board-certified.

Discounts on Medical Services

Can you offer some patients a discount? Yes, but how you do it matters. This one is a bit complex and changes whether you accept insurance or are cash-based or DPC, like me.

To learn more, I recommend running your case by your legal team before offering any discounts.

Fictitious Name Permit

According to the California Medical Board:

The use of any fictitious, false, or assumed name, or any name other than his or her own by a licensee either alone, in conjunction with a partnership or group, or as the name of a professional corporation, in any public communication, advertisement, sign, or announcement of his or her practice without a fictitious-name permit obtained pursuant to Section 2415 constitutes unprofessional conduct.”

Cohen Law

Not to get too complicated, but back in the day, this was called DBA – doing business as. You cannot practice medicine as a corporation; you need to be a professional corporation which only a physician can hold in majority.

I can be a sole proprietor and call my practice Mohammad Ashori MD but if I incorporate it as Online MD Inc., then I need an FNP (fictitious name permit) to highlight that association.

Confused? Good. May I suggest a lawyer.

State Medical Board Advertising Rules

The California State Medical Board website is so bloated that I couldn’t find the section on advertising, but I’m assured that once I transgress it, it will be quite apparent. I believe it.

When in doubt, keep it simple. But your attorney should be able to give you a good handout on good practice protocols for advertising your practice.

It can be found under Business & Professions Code 651.

Anti-Kickback

The Anti-Kickback Statute is a federal law that prohibits the exchange (or offer to exchange), of anything of value, in an effort to induce (or reward) the referral of federal healthcare program business.

Suppose there’s a pharmaceutical company that develops a new drug. To boost sales, the company offers financial incentives to doctors who prescribe this drug to their patients.

The incentives could take many forms: perhaps a direct cash payment per prescription written, or an all-expenses-paid vacation, or even substantial ‘consulting fees’ for the doctors’ participation in a nominal advisory board.

Stark Law

The Stark Law, also known as the Physician Self-Referral Law, prohibits physicians from referring patients to receive “designated health services” payable by Medicare or Medicaid from entities with which the physician or an immediate family member has a financial relationship.

Imagine Dr. Mo is a general practitioner who is part-owner of an imaging center. One of his patients, a Medicare beneficiary, complains of persistent headaches. Dr. Mo decides that an MRI is needed to determine the cause of the headaches. He refers the patient to the imaging center in which he has a financial interest. No bueno.

This might be less related to online advertising but it certainly is important to consider since your business connections might be advertising on your behalf.

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