Physician Advertising In New York: Let the Physician Beware

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The legal and ethical ramifications of physician advertising need to be clearly understood by practitioners to avoid liability pitfalls for the unwary.

I. Background

Section 6530 of the Education Law contains the definitions of professional misconduct that could result in licensure sanctions if not recognized. Among the 47 definitions of professional misconduct, the following subsection specifically pertains to advertising:

27. Advertising or soliciting for patronage that is not in the public interest. (a) Advertising or soliciting not in the public interest shall include, but not be limited to, advertising or soliciting that: (i) is

(ii) represents intimidation or undue pressure;

(iii) uses testimonials;

(iv) guarantees any service;

(v) makes any claim relating to professional services or products or the costs or price therefore which cannot be substantiated by the licensee, who shall have the burden of proof;

(vi) makes claims of professional superiority which cannot he substantiated by the licensee, who shall have the burden of proof; or

(vii) offers bonuses or inducements in any form other than a discount or reduction in an established fee or price for a professional service or product.

(b) the following shall be deemed appropriate means of informing the public of the availability of professional services: (i) informational advertising not contrary to the foregoing prohibitions; and

(ii) the advertising in a newspaper, periodical or professional directory or on radio or television of fixed prices, or a stated range of prices, for specified routine professional services, provided that if there is an additional charge for related services which are an integral part of the overall service being provided by the licensee, the advertisement shall so state, and provided further that the advertisement indicates the period of time for which the advertised prices shall be in effect.

(c)(i) All licensees placing advertisements shall maintain, or cause to be maintained, an exact copy of each advertisement, transcript, tape or video tape thereof as appropriate for the medium used, for a period of one year after itq last appearance. This copy shall be made available for inspection upon demand of the department of health;

(ii) A licensee shall not compensate or give anything of value to representatives of the press, radio, television or other communications media in anticipation of or in return for professional publicity in a news item;

(d) No demonstrations, dramatizations or other portrayals of professional practice shall be permitted in advertising on radio or television;

II. Organized Medicine's View

The Legal Manual for New York Physicians notes that the Medical Society of the State of New York ("MSSNY") has provided guidance on advertising by physicians. MSSNY's guidance on this issue is that physicians may engage in advertising so long as "the communication is not materially false or deceptive." See Medical Society of the Stale of New York, Principles of Professional Conduct, ch. 3 (June 18, 2001) (cited in The legal Manual for New York Physicians, § 5.4 ("Physician Advertising").

M. Caselaw Licensure

A physician was convicted of deceptive advertising when he stated in a newspaper advertisement that he was "subspecialty trained in allergy, immunology, and rheumatology - children and adults." Saunders v. Administrative Review Board for Professional Medical Conduct, 265 A.D. 2d. 695 (Dept. 3, 1999). The petitioner never completed the training in these specialties and further, did not retain hospital privileges in these specified areas. Id. The advertising was misleading "insofar as it implied that petitioner has the expertise to practice in specialty areas which he, in fact, does not possess." Id. As such, the Third Department concluded that the finding in a disciplinary proceeding that the doctor engaged in deceptive advertising was did not "lack[] a rational basis in fact." Id.

A health care provider must be careful in how he words advertisements. A dentist had a newspaper advertisement that stated the following: "When you buy one set of custom dentures at our incredible low price of $169, you get another set absolutely free." Dubrowsky v. Ambach, 88 A.D.2d 1004, (Dept. 3, 1982). The dentist did not intend to give the patient a free bottom denture with the purchase of a top denture. Id. He merely would copy the denture that the patient was paying for, ie. if the patient paid for a top denture then the dentist would give the patient another top denture free of cost. The State Board of Dentistry found that this advertising had been misleading. Id.

By contrast, a dentist was not convicted of false and misleading advertising when the information contained in the advertising was up for scientific debate. Callahan v. SUNY, 129 A.D,2d. 241 (Dept. 3, 1987). The court also said that "the capacity of advertising to mislead is judged by the entire context." Id. The court declined to intervene in a "purely professional dispute concerning the effectiveness of two accepted methods of treatment." Id.

The information presented in this article is intended for educational purposes only and does not constitute legal advice. In cases of specific legal questions, always contact an attorney.)

W. Case Law - Civil Liability

Another statutory provision relevant to advertising and civil liability is the General Business Law ("GBL"). Sections 349(a) and 350 of the GBL proscribe all deceptive practices, including false advertising "in the conduct of any business, trade or commerce or in the furnishing of any service in this state." See also Karlin v. IVF America, 93 N.Y.2d 282 (NY Ct of Appeals, 1999). In Karlin, patients sued operators of an in vitro fertilization ("IVF") program for, among other things, claims under the GBL for false advertising of success rates and for misrepresentation of the health risks associated with IVF. The Court of Appeals held that exemption of "providers of medical services" from the expansive reaches of the statute is contrary to its plain language. Significantly, the Court notes "when [physicians] choose to reach out to the consuming public at large in order to promote business - like clothing retailers, automobile dealers and wedding singers who engage in such conduct - they subject themselves to the standards of an honest marketplace secured by General Business Law §§ 349 and 350."

V. Summary

Physicians may be held accountable for inappropriate advertising both under the Education Law (which could result in an action affecting ones professional license) or the General Business Law resulting in civil liability for deceptive acts or practices in the conduct of any business, trade or commerce or in the furnishing of any service in this state."

Scott Einiger is a senior partner and director of the New York City Health Law Practice at Abrams, Fensterman, Fensterman, Eisman, Greenberg, Formato & Einiger, LLP. He is special counsel to The New York County Medical Society and general counsel to The American Academy of Psychoanalysis and Dynamic Psychiatry.