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Patient Testimonials – More Risk than Reward?
By: Michael J. Schoppmann, J.D.

In today’s ever increasingly aggressive world of medical marketing, many physicians and medical practices have turned to the use of patient testimonials in am effort to bolster the or market share. However, while the world of business may embrace many common, perfectly appropriate and worthwhile marketing methods, physicians should keenly alert to the fact that the world of medicine faces specific prohibitions against those very same methods. As set forth in New York’s Education Law, Article 131-A, Section 6530. “Definitions of Professional Misconduct”:

Advertising Or Soliciting For Patronage That Is Not In The Public Interest.

a. Advertising or soliciting that is not in the public interest shall include, but not limited to, advertising or soliciting that:

i. is false, fraudulent, deceptive, misleading, sensational or flamboyant;
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 thereof which cannot be substantiated by the licensee, who shall the burden of proof;
vi. makes claims of professional superiority which cannot be 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 the 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 specific 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 indicates the period of time for which the advertised prices shall be in effect.

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 its 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;

Patient Testimonials…

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

The above-referenced section of the New York Education law, and the prohibited advertising practices contained therein, is based on New York’s longstanding position that the use of physician testimonials is against public policy. As such, the use of physician testimonials is treated in the same manner as making inappropriate promises of results that are either impossible or unlikely to occur in the average patient.

While the Office of Professional Medical Conduct (“OPMC”) has yet to require physician advertising to be pre-screened prior to dissemination, it is clearly an excellent risk management measure for every physician embarking upon such a campaign to juxtapose their marketing materials and methods against these regulations. It is certainly understandable for physicians to wonder why, if patient testimonials are prohibited, they are still utilized by practitioners as a very public marketing tool. Quite simply, it is due to the fact that not only is the use of testimonials against the law, but also, as physicians’ economic competitors are increasingly complaining to OPMC in regard to the advertising and marketing of their physician-colleagues, the expectations of potential scrutiny (and discipline) has also risen.

Moreover, regardless of the issue under investigation or subject to review, the OPMC routinely, as an initial screening mechanism, reviews the web sites and other internet efforts of the physician and/or practice under scrutiny. Unfortunately, many of the methods or concepts which internet advertising and/or marketing consultants will recommend to physicians are actually direct violations of New York law. Moreover, the physician’s obligation to ensure compliance cannot be delegated to, or thrust upon, any internet advertising consultant or company. As a result, physicians who are cited for violations as to their use of testimonials (or other non-compliant measures) upon simple screening by OPMC face a far more difficult course in attempting to exonerate themselves from the issues which formed the basis for the actual investigation by OPMC.

In spite of these intrusions, the goals of more aggressive marketing and advertising should not be summarily set aside. Rather, such efforts should be specifically structured to seek those goals, albeit in an inherently limited fashion, in compliance with the regulatory mandates of the State of New York. In fact, physicians embarking upon any adverting or marketing campaign should demand written confirmation from their consultants that they will only serve to secure both the goals of those competing with, and those seeking to discipline, every physician who embarks upon (and pays for) marketing and advertising efforts.

Mr. Schoppmann is a founding principal of Kern Augustine Conroy & Schoppmann, P.C., having spent his career representing physicians in all aspects of healthcare law. He can be reached at Schoppmann@drlaw.com or 1-800-445-0954.

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