Indiana Policyholders: Notice to policyholders recently affected by severe weather. 

Bold is Good Except When Making Marketing Claims. Then It's Just Dangerous.

When marketing your practice, you want to stand out, setting yourself apart from your competition. You want people to know you're "the best" and that they can expect "exceptional care" from you; however, you may not want to use those exact words or other superlatives that may inflate patient expectations.

When people rely on claims you make in your advertising — whether in printed materials, in radio ads, or with digital communications such as emails and websites — you expose yourself to potential professional liability risk if something unforeseen or unintentional happens. The results, if inconsistent with your marketing information, may lead to allegations of a breach of expressed or implied warranty of care.

In 2015 a jury held concierge medical service MDVIP accountable when a patient’s leg was amputated after a missed diagnosis of a blood clot by an MDVIP physician. The jury found MDVIP responsible for fraud and false advertising, and awarded $8.5 million to the estate of the Florida resident. According to the jury, MDVIP failed to deliver the quality medical services promised in the form of “exceptional doctors, exceptional care and exceptional results” in exchange for a $1,500 annual membership fee. The plaintiff’s attorney successfully argued that the implied promise far surpassed the level of “reasonable care.” Using this elevated and subjective wording caused virtually any result that turned out less than ideal to fall short of the care made by the promise.

The takeaway from all of this:

  • Health-related promotional efforts are held to a high ethical and legal standard.
  • False and/or exaggerated claims in advertising are illegal under federal law.
  • State consumer protection statutes, which vary widely from state to state, also regulate advertising and may have additional rules.
  • When it comes to marketing efforts, you may want to create a planning and review process that includes legal consultation.
  • Avoid superlatives and phrases such as “painless,” “best care,” “expert care,” “highest quality,” “optimal results,” and “permanent results”, among others.
  • Exercise caution when publicizing success rates to ensure you have a factual and scientific basis for any numbers you may use.
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