As more healthcare dollars are in the hands of patient consumers, many marketers are engaging patients with new, creative, and sometimes aggressive, campaigns. While there are many benefits to speaking directly to patients, it comes with added risk. Seemingly innocuous taglines like “remarkable care,” “world-class emergency room care,” “a team of qualified doctors,” an “elite team,” or even “natural births,” have led to significant litigation and, in some cases, multimillion-dollar verdicts. It is no longer uncommon for plaintiffs to raise breach of contract, unfair or deceptive consumer practices, or fraud in addition to their traditional medical malpractice claims.
Providers are exploring new ways to interact with patients. Eschewing traditional marketing, providers are increasingly turning to digital marketing and social media, email and texting campaigns, and testimonials. Pressure for clicks and sales can lead to aspirational slogans suggesting better care, e.g., a practice touting “amazing” or “extraordinary” care in a Facebook ad. Some providers contract with patients to provide certain levels of care (e.g., direct primary care providers), while others may be inadvertently creating contracts through their marketing. New technology offers more information on leads and better targeting but presents more pitfalls.
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Traditionally, only certain providers (e.g., elective care) aggressively marketed to patients. With high deductible plans and patient choice on the rise and the rules governing advertising by medical professionals relaxing, many providers are experimenting with consumer-style marketing, without the experience, controls, and discipline necessary to manage the exposure.
While healthcare marketing has expanded, many states have implemented caps limiting medical malpractice damages to help control rising costs. In some states, a med mal claim is capped at $250,000. Plaintiffs contend—and some courts agree—that marketing claims fall outside of damages caps, making them attractive. They also tend to be easier to litigate than med mal claims, with fewer hurdles, a longer period in which to bring them, and the ability to recover statutory, enhanced or punitive damages and attorneys’ fees. Plaintiffs may use these claims to cast wider nets, e.g., alleging hospitals to be responsible for independent contractors based on the marketing.
For example, in Florida, a hospital was hit with a $178 million verdict from a botched bariatric surgery because, in part, the hospital marketed itself as a “Bariatric Center of Excellence” with an “experienced team.” In Kentucky, an emergency room’s slogan that “You don’t just deserve emergency care. You deserve remarkable care,” resulted in deceptive marketing claims. A similar case was brought based on advertising of “excellent care by qualified physicians.” In 2016, an Alabama jury awarded $16 million against a birth clinic that failed to meet its marketing of “a mother’s choice,” “individual birthing plans,” and “freedom of movement.”
These claims can have a significant impact on a provider’s brand and reputation, cause consternation amongst employees, inculpate business partners, and invalidate or limit insurance coverage. Even if the provider prevails, it is subject to unwanted attention, significant cost, and discovery beyond the typical med mal claim. Additionally, marketing issues may result in medical board complaints, complaints to enforcing authorities, bad press or disparaging tweets, and negative online or business reviews. In short, it is better to avoid the claims with a thoughtful marketing plan that includes tight controls and review processes.
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Some non-exhaustive guidelines to consider:
- Avoid superlatives and absolutes. Instead, use facts to convey why you are “the best” without saying so. But don’t turn aspirational statements into slogans.
- Subjective, general, or opinionated statements are less likely to be actionable than objective or specific statements. Avoid language that is unclear, subject to multiple interpretations, or undefined. Consider the average person’s interpretation—not a healthcare professional’s.
- Context matters. Consider the audience, how the message is being delivered, what else is in the piece, where the marketing piece is placed, etc.
- Avoid guarantees, implying a higher standard of care, and other words that suggest a special meaning (e.g., “partner,” “proven,” “promise,” “duty,” etc.).
- If testimonials are permitted in your state, don’t use them to say things that you cannot say directly or that go beyond the typical patient experience. Identify any native marketing or paid articles as advertising. Bloggers, tweeters, and influencers should be users of the service and disclose any compensation.
- Educate all professionals on messaging, not just marketers. Statements in emails, articles, publications, interviews, handbooks, etc. may also be problematic.
- What is not said can also cause trouble. Omissions of fact may also be actionable.
- Only make claims if supported by competent and reliable scientific evidence. If relying on surveys or data, avoid bias (e.g., can’t cherry-pick). Even if literally true, statistics can still be found to leave a false impression.
- Avoid suggesting responsibility for third-parties, independent contractors, or aspects of care beyond what you are providing (e.g., suggesting a whole team approach when some providers are not under your control).
- Consider disclaimers, disclosures, or explanations where appropriate, but disclaimers are not panaceas and can sometimes backfire.
In sum, determine your core promise and relay it consistently and without embellishment. Marketers should also be aware of requirements regarding protected health information, internet privacy, telemarketing, marketing to Medicare beneficiaries, gifts to patients, testimonials and endorsements, native advertising, required proof of claims, etc. Your legal counsel, whether in-house or external, can help. Also, the Federal Trade Commission provides useful guidance. While there is a lot to consider, a good checkup of your marketing, the development of a plan and controls, and annual reviews help manage the risk.
Holland & Knight associate Jeff Schacknow assisted with this article.
Photo: Photo: exdez, Getty Images
Matthew Zimmerman is a Partner at Holland & Knight. Zimmerman is a trial attorney concentrating in the areas of commercial, healthcare and intellectual property (IP) disputes. Mr. Zimmerman has particular experience in high-stakes matters involving injunctions, the protection of trade secrets and "business divorces" (i.e., business breakups). As a former in-house, litigation counsel for a national healthcare company, Mr. Zimmerman has a unique perspective that focuses on practical and efficient legal and business solutions to complex disputes.
Mr. Zimmerman has significant experience representing clients in the healthcare and life sciences industries in litigation, risk management and investigations. He also counsels healthcare companies, physicians and physician groups on contracting, compliance, marketing, intellectual property, regulatory, privacy and consumer protection issues.
In addition, Mr. Zimmerman has extensive experience in litigation involving trade secrets, non-compete, non-solicitation and non-disclosure provisions, employee piracy and anticompetitive practices. He has helped companies protect their valuable business information from competitors. He also advises companies and high-level executives on how best to preserve their IP and their rights. He has obtained temporary restraining orders, injunctions and damages for the misappropriation of intellectual property.
Mr. Zimmerman's commercial litigation experience also includes representing clients in the hospitality, financial services, real estate and construction industries in claims involving breach of contract, fraud, negligence, bad faith, false and misleading advertising, defamation, deceptive and unfair trade practices, misappropriation, civil conspiracy, civil theft, qui tam, Racketeer Influenced and Corrupt Organizations Act (RICO), whistleblowers, breach of fiduciary duty, interference with business relationships, injunctive relief, wrongful death, product liability and arbitration issues.
Mr. Zimmerman has experience as an associate general counsel for a national healthcare company operating in 44 states and Washington, D.C., and servicing more than 850 physicians and approximately 300,000 patients. He was responsible for dispute resolution and litigation, risk management, government relations and new acquisitions. He rolled out a national arbitration program, counseled on marketing, public relations, the Health Insurance Portability and Accountability Act (HIPAA) and privacy issues, and implemented eDiscovery strategies.
Mr. Zimmerman also serves as a board member for the Primary Care Innovation Alliance Inc. and advocates for primary care physicians, increased innovation and additional focus on wellness and cost savings for the healthcare system. In the community, Mr. Zimmerman serves on the local Best Buddies board and advocates for pro bono clients through the Legal Aid Society of Palm Beach County.
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