Recently, a plastic surgeon client came to me and said, “I can’t understand why my customary advertising venues are just not working anymore.”
It seems he had been relying on his presence in the community to advertise the excellence of his medical practice.
What he didn’t know is that patient referrals are playing a much smaller role in helping physicians build a practice, whereas the Internet is continuously, increasingly capturing nearly everyone’s personal time.
As today’s society has become increasingly mobile and focused on technology, standard marketing practices and advertising-based methods have become less useful, less persuasive—even less visible.
Even the personal habits of customers are more technology-oriented and less people-oriented than ever before.
For example, some time ago a grandfather lamented to me, “Sixty years ago, the mass introduction of television at least kept the family sitting together around the boob tube,” but in 2008 his grandkids seem to be off in a self-indulgent, Internet-based world of their own.
CRUCIAL TO PHYSICIANS
Any surgeon capable of carrying his or her medical license for a few years knows about the complex, often Byzantine rules affecting medical advertising.
However, these same surgeons sometimes fail to use sufficient due diligence when implementing Internet-based advertising, to ensure they’ll keep their license after trying to “make it big” on the Web.
As patients grow increasingly concerned about the quality and cost of health care, they also are actively using the Internet to help them make health-related decisions. This includes choosing the right surgeon.
Nearly one-third of the US population uses the Internet to obtain information about their health.
Additionally, an estimated 50% of professional services-related decisions involve Internet research conducted by patients.1 These numbers are staggering because surgeons simply are not able to carry on using old marketing techniques.
Furthermore, online advertising has become an increasingly powerful method of marketing.
For example, results released by the Advertising Research Foundation as recently as 5 years ago revealed that online advertising increased marketing effectiveness for personal care items by as much as 42%.
In addition, after a product or service is introduced via an advertising campaign, Internet advertising has been shown to be the most cost-effective method of increasing sales.
Finally, research has shown that this method of advertising can increase people’s awareness of your marketing campaign by up to 300%.2,3
For this reason, professional health care organizations and physician groups should make maximum use of the Internet resources available to them.
They should use multiple forms of advertising—including radio, television, and Internet marketing. Effective use of these media can lead to a significantly increased market share compared with those who don’t make use of these tools.4,5
Developing an effective marketing plan involves much more than merely listing one’s practice on a Web site, however.
Unfortunately, many physicians follow outdated strategies for implementing practice Web sites.
In their disappointment over an initial, failed foray into Internet marketing, they may revert to traditional forms of media advertising.
Successful firms that wish to launch a new advertising campaign usually do not design their own advertising campaigns. Rather, they hire marketing firms to help them develop successful strategies to attract new customers.
Likewise, perceptive practices understand that effective, aggressive techniques that can increase Internet market share are essential for effective online advertising.
THE SEO CONUNDRUM
Search engine optimization (SEO) companies use a variety of methods to get a practice’s Web site in front of prospective customers, using the most efficacious listing directories that can yield the best marketing results, pay-per-click campaigns, etc.
These companies also can provide direct e-mail services to targeted audiences; utilize public relations staff to publicize, and even generate, newsworthy awards, achievements, or events via Internet news services; and retain professional writers who scribe articles that are distributed to online article directories.
These, in turn, direct online traffic back to the originating Internet site, enhancing what is termed “Web presence”—a somewhat obscure phrase that generates “street cred” for a site owner.
Companies that perform SEO services are known to use the most aggressive advertising techniques.
This can benefit you greatly, as long as the SEO techniques remain within the strictly defined legal and ethical boundaries that delineate acceptable standards in health care advertising.
The laws regarding acceptable advertising in the medical profession vary greatly from state to state.
In fact, the Federal Trade Commission has given every indication that it will pursue unethical Internet advertising at least as strongly as it currently pursues inappropriate advertising on radio or television.6
The American Medical Association (AMA) orders licensed physicians to refrain from false or deceptive advertising. Aside from this, however, the AMA has delineated only very general guidelines concerning what is to be construed as deceptive advertising.
STRICT IN CALIFORNIA
Many states have adopted specific criteria that defines the acceptable scope of ethical advertising in the medical profession.7
For example, in California, you may advertise your credentials, such as “board certified,” only if the state medical board recognizes the certifying organization.
In addition, California-based physicians are not permitted to make any unsubstantiated claim or use any phrases related to price advertisement that could be construed as misleading or deceitful.
Likewise, they may not claim that they are professionally superior unless they can support the claim with sound scientific evidence.8
Citing specific abuses by the newer, salon-type medical facilities, the California medical board’s recent practice reform included and cited wrongful Internet advertising practices in its April 2008 agenda.9
The California medical board also has determined that physicians are not to use testimonials or other statements that may mislead potential patients.
Furthermore, the board strictly governs the use of patient photographs in medical advertising.
If, for instance, before-and-after pictures are used in a practice’s marketing materials, the accompanying text must clearly state the procedure performed.
Moreover, these pictures must be taken in similar lighting and background conditions, so that the “after” pictures do not deceive future patients.
Finally, the state has ruled that models may be used in photographs only if they are clearly identified as such.8
This sort of professional ethical thought is sometimes anathema to SEO companies that strive to place everything their clients do in the most favorable light.
Similarly, the state of Texas also prohibits the use of testimonials in medical advertisements.
Texas lawmakers have further described deceptive advertising as misrepresenting the quality of services rendered or misrepresenting the source of services offered to consumers—something that is easy to do if the process is turned over to a nonprofessional.
In addition, the Texas medical board specifies that a physician who advertises a product or service to be superior to that of another without adequate proof of this claim is engaging in deceptive marketing.7,10
In addition to California and Texas, New York and Illinois ban the use of testimonials in medical advertising.
Furthermore, Virginia, Maryland, Michigan, North Carolina, and the District of Columbia, among other states, define deceptive advertising as medical misconduct.
This is a serious allegation, and physicians found culpable of this charge may be dealt fines or reprimands, and may even lose their medical license.7
The courts of New York have taken a very strict position on deceptive advertising; namely, that medical professionals who engage in deceptive marketing techniques may be held accountable.
In other words, laws governing both consumer fraud and deceptive advertising also apply to physician marketing practices.
New York’s appeals courts have ruled that physicians who overstate a procedure’s rate of success may be sued in civil proceedings.
Furthermore, professionals who fail to fully disclose the potential risks of a procedure are also liable under consumer laws.11
New York’s Education Law also regulates the marketing practices of medical professionals. This statute forbids any advertising that is contrary to public interest.
Under this law, testimonials or unsubstantiated claims of professional superiority are considered contrary to public interest.
Moreover, any advertisements that offer procedural guarantees or are considered to be intimidating to a prospective patient also fall under this domain.
As with many states, New York requires that medical professionals maintain an exact copy of their advertisements for 1 year after the last use of said advertisement. Depending on the type of media utilized, the copy may be in the form of a transcript, a tape, or a CD/DVD.12
OTHERS NOT AS TOUGH
In stark contrast to these strict statutes, Pennsylvania citizens are afforded little protection by edicts governing medical advertising.
Medical professionals are restricted only from engaging in deceptive marketing strategies.
According to the Pennsylvania Medical Society, even aggressive techniques are acceptable as long as they do not “engender unjustifiable anticipations of procedural effectiveness.”13
As with other state governments, the New Jersey legislature has seemingly banned deceptive advertising, in accordance with the AMA’s standards of practice.
However, the New Jersey Supreme Court recently dismissed a lawsuit accusing physicians of fraudulent advertising.
In this proceeding, two patients accused a physician of marketing claims that he would oversee all aspects of their medical care related to LASIK surgery. Instead, another professional examined patients during follow-up visits. These patients pressed their case under the Consumer Fraud Act. Historically, medical professionals have been almost immune to litigation under this statute.14
Despite this ban, New Jersey continues to let practices use patient testimonials in advertising.
These testimonials may include videos of the patient discussing his or her feelings and response to the advertised physician. These advertisements rely primarily on emotions rather than facts. According to the state of New Jersey, though, these commercials are legal as long as they do not make false or misleading claims.15
New Jersey-based medical professionals, like those in many other states, are strictly prohibited from advertising that they are board certified unless they meet two primary requirements.
First, the certification must be granted by a board recognized by the American Board of Medical Specialties, the American Osteopathic Association, or the American Podiatric Medicine Association.
Further, in the body of your ad, you must identify the specific board that issued the certification, as well as the specialty area in which the certification was granted.16
Physicians in Massachusetts are enjoined to refrain from false or deceptive marketing techniques.
Massachusetts advertising laws, however, dictate that you must keep a copy of the advertised material for at least 3 years, as well as provide a copy to the Medical Examiners Board upon request.
State legislators further decree that physicians may advertise fixed prices, or prices that occur within a fixed range, for a procedure. They must, however, include information regarding any additional fees that may be charged for a procedure.17
Medical professionals who practice in Florida may use certification credentials that have not been approved by the state’s medical board.
They may use these credentials, however, only if they include a written disclaimer that states, “The specialty recognition identified herein has been received with a private organization not affiliated with or recognized by the Florida Board of Medicine.”18
In addition, physicians must provide a full disclosure of facts when advertising and not permit the release of any type of false or misleading information.
To aid in this determination, medical professionals in Florida who advertise via television or radio must maintain a copy of their advertisement materials for at least 6 months after the ad has aired.
Finally, any ad that includes the name of a licensed medical professional must also include his or her licensure credentials—such as MD, PA, AA, etc.18
SEO AND ETHICS
One additional provision for Florida-based surgeons states that medical professionals are responsible for any marketing claims made by any agency they hire. If a physician uses an SEO firm, then he or she is responsible for any information released by that firm.
If your agency includes any fraudulent, false, or misleading information in any marketing initiative, you—not the agency—will be held liable under the rules of the state’s medical practice act.18
Sanctions for fraudulent or misleading advertising range from reprimands to fines to loss of licensure.
Therefore, according to these rules, a Florida physician who contracts with an SEO company to promote any practice or procedure could lose his or her license if the SEO company engages in marketing tactics that overstep the boundaries of Florida law.
Currently, only Florida-based physicians are governed by this law. Other states, however, may choose to adapt an identical or similar rule and require medical professionals within its jurisdiction to comply with comparable regulations.18
If the medical professionals residing within that state continue to rely on SEO companies that do not employ legal counsel, then they, too, become responsible for any interpretation of the law made by that SEO company.
Although it is possible that an SEO company is aware of these basic rules from state to state, new laws are constantly being enacted.
Furthermore, according to the statutes enacted by many states, only licensed attorneys are entitled to practice law. Individuals who are not credentialed attorneys who offer legal advice are, in effect, practicing law without a license. Many states, including California, Illinois, Florida, Michigan, North Carolina, and numerous others, as well as the United States Federal Court system, prohibit the practice of law without a license.19,20,21,22
Under these statutes, any SEO company that offers legal advice, whether general or specific, to a medical professional, is engaging in the practice of law.
See also “How Does Your Web Site Rank?” by Lesley Ranft, in the April 2008 issue of PSP.
If that company does not employ lawyers as either part of the regular staff or consulting staff, that company is practicing law without a license.
Make sure your SEO marketing firm employs consulting lawyers. If these companies are convicted of practicing law without a license, they may lack the funds to make restitution and may declare bankruptcy.
The flip side of this issue, however, is that the SEO company may be accused of performing acts only a lawyer should perform, and in that case the lawyer-consultant might get attacked by the state bar association anyway.
The SEO company could be charged with being a mere runner or capper for the lawyer—a banned activity throughout the United States.
Ask the SEO company’s lawyer who he or she represents: you or the SEO company. Do not deal with a so-called “integrated” SEO operation.
Common sense dictates that you should retain a lawyer personally, one who is knowledgeable in both SEO and your state’s ethics rules.
Perceptive medical professionals who wish to engage in aggressive marketing tactics should seek out an SEO company, but plan to have any marketing strategy reviewed by an attorney.
A qualified lawyer can legally and adequately advise you as to whether or not your marketing tactics and advertising campaigns remain within the boundaries of law as defined by your state medical association.
Charles Benninghoff is the Webmaster at CrownSEO, an Internet search engine optimization company based in San Juan Capistrano, Calif. He can be reached at (949) 493-6000.
- Pena-Purcell N. Hispanics’ use of Internet health information: an exploratory study. J Med Libr Assoc. 2008;96(2):101-107.
- Internet is powerful complement to traditional advertising media. Microsoft News Web site. www.microsoft.com/presspass/press/~. Accessed May 13, 2008.
- New MSN Internet advertising effectiveness research study shows that online advertising increases brand awareness by as much as 300 percent. Microsoft News Web site. www.microsoft.com/presspass/press/1999/Dec99/AdEffectPR.mspx. Accessed May 13, 2008.
- Eshaghian R. Acquisition of new patients. Dental Marketing Center Web site. [removed]www.dentalmarketingcenter.com/archives/yellow_pages.htm[/removed]. Accessed May 17, 2008.
- Rappaport J. Attorney advising on the Internet. University of Miami Web site. osaka.law.miami.edu/~froomkin/seminar/papers/rappaport.htm. Accessed May 17, 2008.
- Online advertising laws: truth in online advertising. Gaebler Ventures Web site. www.gaebler.com/Online-Advertising-Laws.htm. Accessed May 17, 2008.
- Carabello L. Statement, Federal Trade Commission and US Department of Justice joint hearings on health care and competition law and policy. Federal Trade Commission Web site. [removed]www.ftc.gov/ogc/healthcarehearings/docs/030612carabello.PDF[/removed]. Accessed May 14, 2008.
- California Code, Business and Professions Code, Section 651 (1-17). California State Government Web site. [removed]www.leginfo.ca.gov/cgibin/~[/removed]. Accessed May 14, 2008.
- California Medical Board agenda of April 25, 2008, item 6. [removed]www.mbc.ca.gov/board/meetings/materials_2008_04-24_fullboard-6.pdf[/removed]. Accessed July 10, 2008.
- Advertising restrictions. Texas Medical Association Web site. www.texmed.org/Search/Search.aspx?search=advertising. Accessed May 15, 2008.
- Kennedy R. Court says consumer laws apply to medical advertising. The New York Times Web site. query.nytimes.com/gst/fullpage.html?res=9906E7DB123CF936A35756C0A96F958260. Accessed May 16, 2008.
- Einiger S. Physician advertising in New York: let the physician beware. Abrams Law Web site. www.abramslaw.com/CM/Articles/~. Accessed May 15, 2008.
- Physician Advertising. Pennsylvania Medical Society Web site. www.pennmed.org/MainMenuCategories/Government/~. Accessed May 14, 2008.
- Albert T. New Jersey squelches lawsuit for advertising fraud. American Medical News Web site. www.ama-assn.org/amednews/2004/03/08/prca0308.htm. Accessed May 13, 2008.
- Birritteri A. Complications in medical marketing. New Jersey Business Web site. findarticles.com/p/articles/~. Accessed May 16, 2008.
- Rule proposal. New Jersey Office of the Attorney General Web site. www.state.nj.us/lps/ca/proposal/bmepro1018.htm. Accessed May 16, 2008.
- Doctors’ Legal Forum. Massachusetts—physician advertising and solicitation. Medical Economics Web site. [removed]medicaleconomics.modernmedicine.com/memag/~[/removed]. Accessed May 17, 2008.
- California Code 64B8-11.001. Florida Online Legal Rules Web site. www.flrules.org/gateway/~. Accessed May 17, 2008.
- Consumer tips and alerts. State Bar of Michigan Web site. www.michbar.org/public_resources/consumertips.cfm. Accessed May 17, 2008.
- Who should I hire to help me with my legal problem? Florida State Bar Web site. www.floridabar.org/tfb/TFBConsum.nsf/~. Accessed May 17, 2008.
- Senior legal fact sheet: California law and non-lawyers. Senior Legal Hotline Web site: www.seniorlegalhotline.org/pdf/fakelegalaid.pdf. Accessed May 17, 2008.
- The unauthorized practice of law: what you should know. Illinois State Bar Association Web site. www.illinoislawyerfinder.com/legalinfo/2007/10/unauthorized_practice.html). Accessed May 17, 2008.