Keeping It Legal
The ever increasing number of State and Federal laws that can pertain to the use of photographs of patients, testimonial use and internet marketing has triggered a lot of questions from the medical community. Below are some frequently asked questions and answers from Michael Sacopulos, General Counsel for Medical Justice Services. Note these are general answers and are not state specific. You should consult local licensed counsel to address laws, regulations and prohibitions specific to the state in which you practice.
Question #1:
When do I need to use the label “MODEL” on a photograph?
Answer:
The term “model” should be used when the photograph is displaying the results of a procedure or procedures not performed by the physician or practice (displaying the photograph). Here the term “model” is being used in a general representative fashion and is not being used to display a specific practice or physician’s professional services/results.
Question #2:
I hear the use of testimonials has regulations. Please explain.
Answer:
There are several sources of regulations over the use of patient testimonials. Some state licensing boards greatly restrict or prohibit testimonials. Each state has different standards; some flexible, some very restrictive.
The Federal Trade Commission also has rules that apply to the posting of testimonials.
In general, a physician should:
- Make sure the patient has consented to the use of the testimonial.
- That the testimonial is accurate (what the patient really said and not paraphrased).
- That both #1 and #2 are documented.
Question #3:
What does HIPAA have to say in its marketing regulations about the use of “before and after” photographs and testimonials?
Answer:
HIPAA in general protects patient privacy. Although the act does many things, it would prohibit the use of before/after photographs without a patient’s permission. However there is nothing in the act that would prevent the use of accurate before and after photographs with a patient’s prior approval. As always, this approval should be documented. Finally, it should be made clear that a patient can withdraw his or her approval to use the photographs at a later date and that the physician must comply with this subsequent withdrawal of approval.
Question #4:
What is this I am hearing about The Federal Trade Commission in regards to “results not typical” and endorsements?
Answer:
Earlier this year, The Federal Trade Commission set forth new guidelines for the use of testimonials and advertising that apply to many areas including healthcare. In the past, The Federal Trade Commission has taken action against certain weight loss products when these products were advertised by an individual claiming extreme weight loss. The FTC’s position was that it is a deceptive trade practice to show an individual has lost 100 lbs. when this result is not at all representative of a typical patient’s outcome. In this situation, the term “results not typical,” would need to be used. Under the new regulations, we should expect that the FTC will take a similar approach. Under the new FTC rules, you must also disclose the fact if an individual has received compensation (of any amount) or discounted services in exchange for providing a testimonial or endorsement.
Question #5:
What concerns should I have if I want to implement an e-campaign to my database?
Answer:
You will not be surprised to learn that there are specific Federal laws related to the use of e-mail campaigns for commercial purposes. Specifically, the CAN-Spam Act sets forth the Federal requirements for those wishing to promote goods and services by e-mail. Before you start to send those e-mails, check out the Federal Trade Commission’s website on this act: http://www.ftc.gov/bcp/edu/tubs/business/ecommerce/bus61.shtm
Question #6:
What should I know before I start a Facebook account?
Answer:
From the legal perspective, information that you place on Facebook is treated exactly the same as information that you would place on your practice’s website. However, some have found Facebook to have a more intimate feel. People tend to make statements and do things on Facebook that they might not otherwise do on a typical web page. We have all read the accounts of individuals losing a job because of some posting on Facebook. I recommend that you keep two separate Facebook accounts. You may have one for your practice and one for personal use. I believe it to be a mistake to mix your personal and professional activities in one Facebook account.
Question #7:
Can I give a referral patient a gift card to use towards services?
Answer:
Yes. Few problems arise from giving a gift card or a discount to a patient that has been referred to your practice. It is more difficult to compensate patients for the promotion of your practice. As we discussed above, should you wish to compensate a patient for the use of his or her before and after photographs on your website, this fact must be disclosed.
Question #8:
If all these are legal requirements, why don’t more doctors get prosecuted?
Answer:
This sounds like a practical question from a risk taker. The answer to this question rests in the limited resources for enforcement. Most people driving above the speed limit don’t receive a ticket, but it is clearly a possibility every time someone exceeds the speed limit. One more word of caution: The penalties for violating some of the rules and regulations described above can be quite harsh. Your smartest move is to try to comply with all rules and regulations regarding online advertising.
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