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Tuesday, January 21, 2014

Principles For Physician Advertising and Social Media

Principles For Physician Advertising and Social Media

Social media has become a popular and prevalent form of marketing among various professionals, including physicians.  Whether a website, Facebook page or LinkedIn profile, there are, however, a series of federal and state legal requirements and prohibitions that must be taken into account. While each type of social media use must be assessed on a particularized basis, some broad stroke concepts are as follows:

New York Education Law § 6530 (27), regulates physician advertising through the professional misconduct prohibitions. In addition to prohibiting false, fraudulent, misleading, “sensational” or

“flamboyant” advertising, New York law prohibits the use of patient testimonials irrespective of patient consent. Likewise, physicians should be careful not to make statements regarding their supposed superiority as practitioners, or offer guarantees regarding the outcome of services provided. Physicians must also be able to support the claims made in their advertisements.  As an administrative matter, physicians are required to maintain an exact copy of each advertisement, transcript, tape or video tape (depending on the medium of advertisement used), for a period of one year after its last appearance.  The Education Law also prohibits “demonstrations, dramatizations, or other portrayals of professional practice … in advertising on radio or television.”  An unsettled question is whether this prohibition would be extended to video media content on the internet.

Under federal law, the legal standard is less specific. Advertisements by physicians are permissible under the Federal Trade Commission Act, provided such advertisements are not false, deceptive or misleading.  Physicians are also responsible for claims that are reasonably implied from their statements.  Therefore, even if an advertisement does not contain actual false claims or misrepresentations of material fact, the advertisement may nevertheless be in violation of the FTC Act if it implies false or unjustified expectations about the physician or the physician’s services.  These rules apply to all advertisements, including patient testimonials, which, in contrast to New York law, are allowed under federal law. In addition, physicians must be able to substantiate all objective claims they make about a product or service.

Physicians should also familiarize themselves with the applicable guidelines and policies promulgated by the American Medical Association (“AMA”) and Federation of State Medical Boards (“FSMB”). The AMA guidelines, for instance, suggest that physicians use privacy settings to safeguard personal information and content on social networking sites (realizing that such settings are not absolute and that once on the Internet, content likely is there permanently), and monitor their Internet presence to ensure that the personal and professional information is accurate and appropriate.  The AMA also issued a series of ethical opinions on the use electronic media by physicians. Those ethics decisions address a variety of issues including the appropriate use of email communications, notice requirements, restrictions thereon, and related privacy and confidentiality concerns arising under state law, HIPAA and HITECH. Physicians responsible for the health-related content of an online site should ensure that the information is accurate, timely, reliable, and scientifically sound, and includes appropriate scientific references.  Physicians who establish or are involved in health-related online sites must minimize conflicts of interest and commercial biases. Physicians must not use health-related online sites to promote unnecessary services, refer patients to entities in which they have ownership interests, or sell products outside of established ethical guidelines.  Physicians who establish or are involved in health-related online sites that use patient-specific information must provide high-level security protections, as well as privacy and confidentiality safeguards.

Like the AMA Guidelines and Policies, the FSMB Model Policy is a comprehensive guide to physicians’ use of social media.  The Model Policy provides guidance on interactions with patients (e.g. through Facebook), online medicine-related discussions, issues of privacy and confidentiality, disclosure, posting content, and professionalism.  For instance, physicians should not use their professional position to develop personal relationships with patients.  Physicians should refrain from portraying any unprofessional depictions of themselves on social media and social networking websites.  Physicians are also discouraged from interacting with current or past patients on personal social networking sites such as Facebook. 

The most important concern with the physicians using social media is confidentiality and the potential for HIPAA and HITECH violations.  These sites have the potential to be viewed by many people and any breaches in confidentiality could be harmful to the patient and in violation of federal and state privacy laws.

The laws governing a physician’s obligations when using social media is complicated and the consequences for violating the rules can be severe. Physicians who are advertising through using social media, or are thinking about it, are encouraged to seek legal advice.

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