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As Medical Specialists Race into Consumer-Direct Marketing, Watch for Legal Tripwires

By Stewart Gandolf, Chief Executive Officer

The Patient-Directed, Self-ReferralMany of the “old rules” are up in the air. It seems like nearly every aspect of our nation’s healthcare delivery system is in flux. An example of this—one that we see daily—is the turbulent competition among and between providers. It’s skyrocketing. But please proceed with caution; there are legal issues to consider for your marketing and advertising approach.

Provider “turf wars” have been around for a while, of course. But the once distinct lines that defined who-does-what are badly blurred. As a result, some providers are making fewer professional referrals to specialists, and specialists are advertising to patients for self-referrals. And both camps are employing marketing people on staff as well as using outside resources.

Recently we spoke with attorney Scott Becker, JD, CPA, about potential legal tripwires. Scott is a partner in the national law firm of McGuireWoods and practices exclusively in the area of health care.

It seems that legal questions are likely to pop up in marketing where specialists want to be less reliant on primary care. Examples come to us from gastroenterology, spine care, pain management and other specialist corners.

Here are some of the areas of concern that we discussed with Scott. (Many would also apply to healthcare marketing in general.) You will want to seek your own legal counsel about issues like these:

1. Direct Marketing Lists. Whatever mailing lists are used for direct to consumer advertising should not originate from personal or individual record sources, such as private practice information.

2. Truthful and Supportable Claims. Marketing or advertising claims must be factual, verifiable and provable. Vague or general statements, which are hard to backup, may be out of bounds.

3. Patient Testimonials. Of course the individual patient must specifically approve the use of a testimonial statement Take note, however, some states may not permit testimonials at all. In addition to standard releases, HIPAA regulations and release forms also apply, and you’ll want to keep all that documentation on file.

4. Patient Photos. As with testimonials, photo releases are standard. But use caution if using “representative” images, as these may need to be declared as stock photography.

State laws will sometimes defer to the state or national society guidelines. But state-by-state regulations can vary, so you’ll want to work with someone who is familiar with your state.

We’re not offering legal advice here, but you’ll want to steer clear of these and other issues in your healthcare marketing. The prudent course is to check with an attorney on any potential legal questions before they become problems.

Our thanks to Scott Becker, JD, who you might also recognize as editor and publisher of Becker’s ASC Review. A 1989 Harvard Law School graduate, author of four books, and a leader in the healthcare profession, Scott Becker provides legal and strategic services to ASCs. Clients include hospitals, physicians, venture capital funds and management companies.

On a related topic, you’ll want to review our newsletter article with a roundup of comments that further this conversation as well as our earlier article, 7 Dangerous Legal Issues to Avoid in Doctor Advertising.

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