Defamation via Twitter? Doctor Files A $1 Million Suit In Oregon

By Joy Tu, VP Medical Justice

A Lake Oswego doctor has filed what appears to be the first Twitter-based defamation suit in Oregon.

Dr. Jerry Darm is suing Portland blogger Tiffany Craig for $1 million, alleging she damaged his reputation with “false, defamatory and malicious” statements made online, according to a complaint filed in Multnomah County Circuit Court.

The case stems from commentary Craig posted on Twitter and on her blog, Criminallyvulgar, where the 31-year-old IT worker writes about everything from the recent passing of former governor and senator Mark Hatfield to computer technology, gaming, the treatment of women in comics and her large collection of shoes.

From the news story:

Craig said she was watching the 6 o’clock news one evening in late June when she saw one of Darm’s television commercials. The doctor advertises his business, Aesthetic Medicine, widely and appears regularly on local talk show segments to give advice on dealing with wrinkles and other skin and body issues, hair removal, leg veins and weight loss.

“Through idle curiosity I Googled him just to see what he was all about,” Craig said. “I found pretty much the same information as the television advertising. … It got me thinking about how you would find information about doctors or other medical professionals if you wanted, without the advertising.”

Later, she posted on Twitter that “a little bit of research into @drdarm revealed a pretty nasty complaint filed against him for attempting to trade treatment for sex in 2001.”

In a blog entry that followed, she mentioned the TV commercial, criticizing the ad’s “results may vary” disclaimer:

“Seen that around? Sure you have,” Craig wrote. “If you watch television in Portland Dr. Darm is ubiquitous. Especially on those local channels that show endless reruns of Two and a Half Men. He wants to fix you up good and spend thousands on cosmetic procedures that will get funneled straight into his Lake Oswego home.”

“What he should have added with his Results May Vary disclaimer is Dr. Darm Handed Over His Medical License Due To Disciplinary Action.”

In 2001, the Oregon Board of Medical Examiners reprimanded Darm for “an inappropriate boundary violation” after a patient complained he offered to accept intimate physical contact as payment for after-hours laser treatment of “spider” veins.

Darm also faced discipline in California and in Washington based on the situation in Oregon, where the state medical board required him to complete educational courses about doctor-patient boundaries and risk management and prohibited him from treating adult women without a chaperone. Those restrictions were removed from Darm’s license in 2009.

Darm’s attorney declined to comment on the case but Craig’s attorney, Linda Williams, has filed a special motion to strike Darm’s complaint under Oregon’s anti-SLAPP statutes, which aim to prevent any “strategic lawsuit against public participation” on the grounds of free speech.

This procedural protection allows a defendant to request review of a speech-based lawsuit early in the process so the court can consider whether there is any probability the plaintiff can prove the case, Williams said. “If there is not,” she said, “the court can dismiss the case.”

The protection applies to speech in a public forum on topics of public interest.

Williams contends that Craig’s comments – speech made in the public forum of the Internet – were opinions based on facts in publicly available documents. A hearing on the motion is set for later this month.

Quoted from the Lake Oswego Review story: Defamation in 140 characters or less

Of course this is a non-starter as a complaint and Dr. Jerry Garm is shooting himself in the foot. Instead of quitely asking Craig to remove her tweet (being read by probably 5 or 10 people), Dr. Garm now has made everyone aware of his previous issues and has many more people aware of his "inappropriate boundary violation" issue. Not the kind of thing that gets you ahead and certainly a suit that he can't win.

About: Joy Tu is the Vice President of Strategy & Business Development for Medical Justice, a company that protects physicians from frivolous lawsuits.

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Cyber Discrimination: A New Frontier of Liability for Healthcare Providers

By Dr. Jeffrey Segal, MD, JD of Medical Justice

Pause for a second, stop reading this article and close your eyes. Imagine living life as one of the 1.3 million blind people in the United States. Think about how you would access information exchanged over the Internet. For 60-year old New York resident Mindy Jacobsen, this is her reality. She has been blind since birth.

Thanks to the American for Disabilities Act (“ADA”) it is easier for Mindy to navigate around New York City. She can walk sidewalk to sidewalk, hop on a train and live a fully functional life, except when it comes to navigating through the internet.

“You go to a hospital’s website and want to get the pre-op information there, but it isn’t available and if it is, it is in a format we can’t read. Then we have to ask people to read it to us and it becomes such a big deal,” Jacobsen said.

Mindy uses a screen reader to read web pages to herself. It is a helpful tool that allows her to navigate the World Wide Web.

"We have computers that take advantage of the speech kit that is built into all computers. Instead of using that speech kit to show a movie, which it certainly can do, we have a program that uses that speech kit to read the screen. So every time the screen refreshes, the software sends the information to the speech kit and it is read aloud to us,“ Jacobsen said.

Section 508, added to the Rehabilitation Act in 1986 and amended in 1992 and 1998, requires Federal agencies to make their websites accessible to people with disabilities. Outside of Federal agency websites, the United States government policy is to encourage self-regulation of the Internet wherever possible. Only if self-regulation is insufficient does government involvement become necessary.

Self-regulation hasn’t fared well for a handful of public companies nationwide. The most famous and commonly cited case was litigated several years ago, when the National Federation of the Blind filed a suit against the retail giant, Target.  The plaintiffs alleged Target's website was not compliant within the outlines of the ADA.   National Federation of the Blind v. Target Corp., 452 F. Supp. 2d 946 (N.D. Cal. 2006) asserted the requirements that Title III of the ADA imposes on places of public accommodation also applies to e-commerce websites.  The plaintiffs were blind individuals who claimed the Target website discriminated against them since the website did not work well with screen reading software.  The case was the first lawsuit applying the ADA to a website that survived a motion to dismiss.  The Target case was recently settled out of court for reportedly six million dollars. Quite a sum. 

Target is not the only organization whose website triggered a claim under the ADA. Southwest Airlines has been named as a defendant, as well as Twentieth Century Fox and Schering-Plough. It seems reasonable to anticipate a wave of litigation against healthcare providers that, in whole or in part, provide services to disabled individuals.

Title III of the ADA provides, “No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation….” 42 U.S.C. § 12182(a).  Is a website a public place?  There seems to be so strong arguments that a judge could say, "Yes." 

"I hope that legislation will come about requiring anyone on the internet to make his or her site accessible.  I am dreaming but it is a hope,” Jacobsen said.

Mindy’s hopes are not far off. In July of 2010 the Department of Justice (DOJ) published documents saying they are considering updating the ADA regulations so that it would explicitly state that both state and local government and places of public accommodations must make websites usable to people with disabilities. Public comments were accepted by the DOJ for an advanced notice through January, 2011. Many take this as a clear sign that rules applying ADA regulations to commercial websites are coming in the near future.

To help physicians get a jump start before legislation may take effect, there are a handful of easy changes to their websites to make them more accessible. First, physicians who already have a website should get it tested for accessibility.

Accessibility Partners is a company that helps organizations implement electronic and information technology accessibility solutions for people with disabilities. Their company hires people with and without disabilities to scan websites to make sure there are no kinks during operation.

“If somebody doesn’t have use of their hands and arms and they have some type of mobile disability, they might use some type of speech recognition to navigate the web. If they are trying to research a medical practice in their city and they Google it and doctors office comes up and they get to the website and the website is not accessible for them; it might be like getting to the door and having the door locked and having the doorbell be out of reach. So it kind of cuts off, unintentionally a whole population of potential clients,” Dana Marlowe with Accessibility Partners said.

A screen reader can read almost anything - eliminating barriers for the blind like Mindy; until it comes across a graphic with no behind the scenes description attached to it for the screen reader to read.

“When my screen reader encounters graphics, it can’t read them. So it just quiets down and doesn’t do anything,” Jacobsen said.

This encounter has been described more graphically by Premium Websites web designer Dotty Scott.

“It is like somebody reading off a Uniform Resource Locator(URL) that has a bunch of question marks and numbers, stuff that is not relevant to what they are looking for. Unfortunately, most websites are built that way, so the person is actually forced to sit and listen to all of that before they actually get to the information they are looking to find,” Scott said.

Scott encourages all web designers to experience a screen reader. Then it becomes obvious what they need to do.

“It was shocking and eye opening. It is amazing to me, the patience blind people have to find anything on the internet. It really is an eye opener,” Scott said.

Here are a few changes physicians can make to their website to make them more user friendly immediately.

• Provide text alternatives ("alt") for images and other non-text content.
• Make it easier for users to read text by using high contrast colors between the text and        background, and making text resizable.
• Provide captions and other alternatives for multimedia.
• Use headings to group information and mark up the heading in the code.
• Make all functionality available from a keyboard, since some people cannot use a mouse.

W3C is the international organization that defines the standards for the web. Within the W3C is the Web Accessibility Initiative (WAI). The WAI's core mission is to make sure the web is accessible to those with disabilities.

 WAI has developed web accessibility standards that organizations can follow, although WAI itself is not an enforcement body. The DOJ is considering using those standards in revising regulations for the Americans with Disabilities Act. Shawn Henry has been working to help organizations understand WAI's standards with the hope that many will make the changes on their own.

"Organizations would be wise to think about accessibility when they are updating their website, instead of waiting until they get a complaint," Henry said.

About: Dr. Jeffrey Segal, MD, JD, is Chief Executive Officer and Founder of Medical Justice and is also a board-certified neurosurgeon.

Michael J. Sacopulos is a Partner with Sacopulos, Johnson & Sacopulos, in Terre Haute, Indiana. His core expertise is in medical malpractice defense and third party payment disputes. Sacopulos may be reached at mike_sacopulos@sacopulos.com

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Understanding The HITECH Act: HIPAA On Steroids

By Jeffrey Segal MD JD and Michael J. Sacopulos JD

Understanding the law before you send your patients any e-mail.

Snail mail is becoming less popular as the calendar pages turn. E-mail and social media networks have changed how we communicate. Before clicking the send button in an e-mail template, healthcare professionals should better understand that HIPAA violations have also entered a new era. More cases are prosecuted with assessment of both statutory civil fines and criminal penalties.

A little background: Even though HIPAA passed in 1996, little prosecution followed when patient privacy was violated. Since the law took effect in 2003, nearly 45,000 complaints were filed with the Health and Human Services (HHS) Office for Civil Rights. Of these complaints, only 775 cases were referred to the Department of Justice or the Centers for Medicare and Medicaid Services for investigation. None resulted in direct civil monetary penalties.

Then, in 2009 the HITECH Act (“HIPAA on steroids”) was enacted. This act intended to increase HIPAA confidentiality protections of Electronic Protected Heath Information(ePHI), instill tough civil and criminal penalties for violations, mandate notification of breaches of HIPAA protected heath information, and extend the definition of covered entities to include business associates. A tall order indeed.

For example under the tougher HITECH Act, in April 2010 a former employee of a hospital was sentenced to four months in prison for accessing the medical records of his coworkers and various celebrities. He had no “valid” reason for accessing these records.

According to the Health and Human Services (HHS), penalties have increased. Prior to the HITECH Act, the HHS Secretary could not impose a penalty of more than $100 for each violation or $25,000 for all identical violations of the same provision. Section 13410(d) of the HITECH Act strengthened the civil money penalty scheme by establishing tiered ranges of increasing penalty amounts, with a maximum penalty of $1.5 million for all violations of an identical provision.

Just how "high tech" are physicians when it comes to communicating with patients?

A survey by the health information firm Manhattan Research in 2009 found that 42 percent of physicians had some online communication with patients.

The American Academy of Family Physicians reported in a 2009 survey that just 6 percent of responding members had performed a Web-based consultation - that number was more than double the 2.6 percent who had done so in 2008.

But is all of this electronic communication legal?

The HITECH Act requires that all communications involving ePHI be encrypted.  HHS recently adopted National Institute of Standards and Technology guidelines for encryption.  This means that if a physician wants to consult, refer, or prescribe for a patient by e-mail, the e-mail had better be encrypted.  Of course most patients do not have software to decrypt.  So what alternatives do healthcare providers have? And, more importantly, how can this be made easy and pragmatic. Email was designed to simplify, not complicate.

Healthcare providers may seek their patient's consent to communicating via unencrypted e-mail.  While HHS does not provide a standard form for securing patient consent, basic "informed consent" strategies should apply.  First, get the patient's consent in writing.  The patient should not be given just a binary choice – but a menu of choices.  For example, a patient may wish to electronically receive information on appointment dates but not test results.  The consent document – as is standard with most routine HIPAA forms -should also note that the patient may withdraw his or her consent at a later time. This can be part of an expanded HIPAA form the patient signs when first seeing you in the office.

Here are some more recommendations when communicating with patients electronically:

1) A physician may be held responsible for a delay when responding to a patient's e-mail. Solution: A physician that wishes to accept e-mail from patients should use an auto response feature that informs the patient that a) the physician typically responds to e-mail within XXX number of hours/days; b) if the patient requires immediate attention, the patient should telephone the physician's office or contact an emergency healthcare provider.  

2) If a patient initiates an e-mail with a physician, Rachel Seeger of HHS Office for Civil Rights says that it is assumed that the patient consents to unencrypted communication.  "If this situation occurs, the healthcare provider can assume (unless the patient has explicitly stated otherwise) that e-mail communications are acceptable to the individual”.

3) If a physician does end up sending a patient an e-mail, double check the recipients’ e-mail address before clicking the send button. This is to prevent the e-mail from being sent to the wrong person, therefore sharing private information to an unintended party. Good advice also in the non-healthcare world.

4) Add any e-mail a patient sends (and any response) to the patient's chart.

5) In the HITECH Act code 170.210 section B states that the date, time, patient identification and user identification must be recorded when electronic health information is created, modified, deleted, or printed; and an indication of which actions occurred must also be recorded. This means if you send an email to a patient with protected health information – and delete it – you will need a record of what was deleted and when. This is not dissimilar to crossing out a line in a paper medical record- updating the record – with a date of the update.

6) Since communicating with patients via e-mail is becoming stricter, more physician offices and hospitals are using portals as a means of communication. This allows the patient to sign in with a secure username and password to view their records and communicate with their physicians. The security rule allows for Electronic Protected Heath Information (e-PHI) to be sent over an electronics open network, as long as it is adequately protected.  Of course, this is more complicated than using Outlook or gmail.

The HITECH Act has ushered in a new era of technology requirements and standards that must be met by physicians.  Given HHS's recent enforcement efforts, physicians should use caution when electronically communicating with patients.  By working within the boundaries of the six points above, physicians should comply with the HITECH Act. 

Jeffrey Segal MD JD and Michael J. Sacopulos JD are with Medical Justice, a Medical Spa MD Select Partner that protects physicians from frivilous lawsuits.

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Treating Non-English Speaking Medical Spa Patients

By Jeffrey Segal MD JD and Mike Sacopulos, JD

According to the 2000 U.S. Census 18% of people living in the U.S. spoke a language other than English in their home.

Jump ahead 11 years and that number continues to grow. We are asked to press one for English and have the option of reading everything from a manual to a menu in Spanish. 

Of the more than 18% who don’t speak English as their first language, most, if not all, will see a physician here in the U.S. at some point. The physician they choose may not speak their native tongue.

 Title VI of the Civil Rights Act prohibits discrimination based on race, color, or national origin. The Act goes even further in protecting against discrimination of those with limited English proficiency -also known as “LEP”.

 Health care providers receiving Federal financial funds are mandated by law to take adequate steps ensuring those who can’t speak English are provided with the necessary tools to clearly communicate with their physician. Physicians who are unsure whether they receive financial assistance from the government should think twice. Physicians who receive reimbursement from Medicaid or Medicare are recipients of Federal financial assistance, and, thus must comply with Title VI requirements for language assistance.

The challenge goes beyond compliance with government rules.  Failure to comply can also result in civil liability claims.  The type of language assistance that must be provided to LEP patients depends on a variety of factors including:

•        The size of the medical practice
•        The size of the LEP population
•        The nature of the service
•        The total resources available to the medical practice
•        The frequency with which particular languages are encountered 

If the Office Civil Rights (“OCR”) gets a complaint about a noncompliant physician’s office, they will inform the practice in writing of its findings and identify the steps that must be taken to become compliant. If the practice chooses to ignore the OCR’s helpful hints,  the OCR is empowered to terminate any Federal funding (after an administrative hearing).

A practice’s responsibility

• Contact the Department of Justice (“DOJ”) to get the information they provide to health care providers on compliance with the American with Disabilities Act

• Decide what foreign language assistance is most needed in the area

• Find out what LEP services are already available in your area examples: hospital, community center, schools and the library.

• Develop a written policy for your practice to ensure effective communication with the LEP population. The policy must be in compliance with federal laws and regulations. The plan should also include a list of qualified individuals who have the medical terminology to satisfy your requirements. A physician’s position in a lawsuit will be enhanced if they have relied on the interpretation of a qualified individual.

• Educate the staff on LEP requirements and practice policies.

• Schedule extra time with an LEP patient to ensure translation was as complete and accurate as possible

How should physician offices handle telephone calls to and from LEP patients? 

•  Determine how your staff is handling calls from LEP patients and develop procedures to help them respond to patient communication needs.
•  If possible, telephone calls from LEP patients should be answered by bilingual office staff or onsite interpreters. 
•  If possible alternatives include enabling staff members to activate three-way calling with a telephonic interpreter or to transfer calls to someone at the office who speaks the relevant language. 
• Answering machine messages should be provided in more than one language (with prompts) if there are a significant number of LEP patients in the practice who speak one or more non-English languages.
•  In the case of a high volume of diverse LEP patients, telephones can be programmed to rollover directly to a phone line with telephonic interpretation services. 
•  If using an answering service, consider contracting with one whose language capacity mirrors that of your practice.

While coming into compliance may seem like a daunting task, it pales in comparison to what will happen if your case is tried in a court of law.  Language does not seem to be a barrier when non-English speaking individuals hires an attorney – to go after you.  A thoughtful compliance plan can save much grief for both physician and patient.

About: Jeffrey Segal, MD, JD, is founder and CEO of Medical Justice Services, A Medical Spa MD Select Partner.  Mike Sacopulos, JD, is general counsel for the organization.

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When Clients Demand a Refund: Free Webinar

Our friends over at Healthy Aging Magazine are hosting a free medical webinar that should be of great interest to our members.

What happens when a patient is not happy with service or the result and demands a refund? ADVANCE for Healthy Aging, a trade magazine for cosmetic medicine professionals, will be offering a medical webinar, called “Doctor, I want my money back.”

• This free webinar takes place Wednesday, Jan. 19, 2011, 8:00-9:00 p.m. EST, with presenters Jeffrey Segal, MD, board certified neurosurgeon and CEO of Medical Justice; and Michael J. Sacopulos, partner with Sacopulos, Johnson & Sacupulos of Terre Haute, Ind. The Webinar will address how doctors can level the playing field; and when refunding makes sense and doesn’t. In addition, these presented will also discuss what to do with negative online reviews—that often come as a result of disgruntled patients.

Use the link below to register:

https://www1.gotomeeting.com/register/590756176

Physicians' Need to Understand & Influence Their Online Reputation

Here's some very good advice from one of our Select Partners, Medical Justice.  

The observation that social media is experiencing explosive growth is hardly novel. Moreover, social media is significantly influencing the medical profession.  CNN Money.com reported that Facebook passed the milestone of half a billion signed on users half a year into 2010.  The professional and legal ramifications from the rapid growth of social media touch almost every aspect of physicians practicing today.  One of the most challenging of these ramifications is a physician’s online reputation.

Pew Internet and American Life Project recently released numbers that document just how important of the source of information regarding medicine and physicians the internet has become.  Sixty-one percent (61%) of American adults look on-line for health information. Forty-nine percent (49%) of Internet users report researching a specific disease or medical problem on the Internet.  Forty-seven percent (47%) report seeking information about their physician or other healthcare professionals from on-line sources.

Finally, five percent (5%) of “E-Patients” have posted a review online of a doctor. It is these very reviews from a small subset which form the basis of a physician’s reputation on-line.

Reputations are forged when people make judgments upon the mosaic of information available about us.”  Viewed in this light, ratings, blog postings, and web pages are the pieces of the reputation mosaic.  Unfortunately, all it takes is one or two bad pieces for the mosaic to be marred.  The implications of a damaged online reputation are extensive."

Most physicians equate a tainted online reputation with a direct loss of business.  The analysis is simple; the worse the online reputation, the fewer the patients.  There are certainly many examples to support this reasoning. 

Dr. Linda Morrison, a physician practicing in Indiana, experienced first hand the harm that arises from an online reputational attack.  In July of 2000, Dr. Morrison noticed that an anonymous individual was posting defamatory statements about her via the internet.  Dr. Morrison received e-mails from this individual under a pseudonym “Surfycity45” that, among other things, made threats against her medical license.  The attacks continued into the fall of 2000.  Dr. Morrison ultimately learned that “Surfycity45” had been circulating defamatory comments about her while simultaneously encouraging others to do the same.  “Surfycity45” worked hard to organize a cyber mob with Dr. Morrison as its target.  

Dr. Morrison, via counsel, attempted to enjoin Defendant American Online, Inc. from the continued posting of the defamatory statements about her by the anonymous subscriber.  For a variety of legal reasons, the United States Northern District Court of Indiana ruled against the injunction.  Although Dr. Morrison alleged that “Surfycity45” statements were false, defamatory, and had resulted in damage to her professional reputation as a physician, she was unable to have these remarks removed from the Internet in a timely fashion.  The damage was done.

The implications of a physician's online reputation now extends beyond patients.  At least twenty seven (27) states have a recognized cause of action for negligently credentialing a physician.  Given this liability, credentialing committees will likely perform detailed background checks using all available search tools, including social network sites.

Health institutions making credentialing or hiring decisions currently face a dilemma when it comes to information about physicians contained in social network profiles.  Although there may be some risks in searching against them (as discussed in the next section), the potential liability for making a panel decision in the absence of such information likely tips the balance."

It is not just patients and credentialing committees which are scrutinizing physicians’ online reputations.  In any  medical malpractice action, physicians should assume that the plaintiff’s attorney will checking the doctor’s online reputation.  Geoffrey Vance, a thirty eight (38) year old partner at McDermott, Will and Emry, makes use of social networking sites to gather facts about the opposing side for trials.  “I make it a practice to use as many sources as I can to come up with and to find information about the other side” Vance said.  “We used to run Lexus Nexus; we still do that.  We always look at cases, and now we use the internet – Google, and social networking sites.”

Mr. Vance is not alone.  Paul Kiesel, a lawyer in Los Angeles County, admits to using social media not only to investigate the opposing side, but also to help select jurors.  “Last month I had fifty (50) jurors, and as the Court Clerk read out the names, I had two (2) people in the courtroom and the third person back at the office, with all three (3) of them doing research.”

Lawyers are not the only actors in a courtroom who are using social media at trial.  Courts across the country are grappling with the serious problem of “Internet-tainted” jurors.  In case after case, judges and lawyers have discovered that jurors are doing independent research via cell phone during trials.  Last year in Arkansas, a state court judge allowed a 12.6 million dollar verdict to stand even though a juror sent eight (8) messages via Twitter from his cell phone.

 In another case, a juror decided to seek the wisdom of the masses by holding a Facebook online poll. “I don’t know which way to go, so I’m holding a poll, wrote the democratic juror.”  Upon learning of this misadventure, the juror was dismissed and the case proceeded.

Physicians’ online reputations are being examined with increasing frequency at crucial moments in their professional career.  It is no longerprudent for a physician to fail to monitor his or her online reputation.  “Physicians should carefully monitor their online reputation.  I have seen examples of ex-spouses, past employees, and competitors all posing as disgruntled patients in an online effort to damage a physician’s reputation.  This is a real threat that is not going away,” says Rivera.

In the words of Benjamin Franklin “It takes many good deeds to build a good reputation, and only one bad one to lose it.”

Resource: Physicians + Facebook Marketing - How to do it correctly!

Guest post by Joy Tu of Medical Justice.

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Medical Spa Advertising: Keeping it Legal - PART 2

State and federal regulations centering on medical spa advertising can often be daunting to navigate through.  How can you make sure your ads are within the “legal” realm?   Read on through Part 2 of Medical Spa Advertising - Keeping it Legal. 

Read: Medical Spa Advertising: Keeping it legal Part 1

The ever increasing number of State and Federal laws that can pertain to the use of photographs of patients has triggered a lot of questions from the medical community.  Below are some frequently asked questions and answers from Michael Sacopulos, General Counsel for Medical Justice Services.  Note these are general answers and are not State specific.  You should consult local licensed counsel to address laws, regulations and prohibitions specific to the State in which you practice.

Question #5: What concerns should I have if I want to implement an e-campaign to my database?

Answer: You will not be surprised to learn that there are specific Federal laws related to the use of e-mail campaigns for commercial purposes.  Specifically, the CAN-Spam Act sets forth the Federal requirements for those wishing to promote goods and services by e-mail.   Before you start to send those e-mails, check out the Federal Trade Commission’s website on this act:  http://www.ftc.gov/bcp/edu/tubs/business/ecommerce/bus61.shtm  

Question #6: What should I know before I start a Facebook account?

Answer: From the legal perspective, information that you place on Facebook is treated exactly the same as information that you would place on your practice’s website.  However, some have found Facebook to have a more intimate feel.  People tend to make statements and do things on Facebook that they might not otherwise do on a typical web page.  We have all read the accounts of individuals losing a job because of some posting on Facebook.  I recommend that you keep two separate Facebook accounts.  You may have one for your practice and one for personal use.  I believe it to be a mistake to mix your personal and professional activities in one Facebook account. 

Question #7: Can I give a referral patient a gift card to use towards services?

Answer: Yes.  Few problems arise from giving a gift card or a discount to a patient that has been referred to your practice.  It is more difficult to compensate patients for the promotion of your practice.  As we discussed above, should you wish to compensate a patient for the use of his or her before and after photographs on your website, this fact must be disclosed. 

Question #8: If all these are legal requirements, why don’t more doctors get prosecuted?

Answer: This sounds like a practical question from a risk taker.  The answer to this question rests in the limited resources for enforcement.  Most people driving above the speed limit don’t receive a ticket, but it is clearly a possibility every time someone exceeds the speed limit.  One more word of caution: The penalties for violating some of the rules and regulations described above can be quite harsh.  Your smartest move is to try to comply with all rules and regulations regarding online advertising.                 

One final word of caution about online advertising and the use of patient images…Many professional societies have ethical guidelines that members are to follow when advertising.  These guidelines may be stricter than State or Federal laws.  The AAFPRS has some well reasoned guidelines that should be known by members prior to initiating an advertising campaign.  Members of the ACS should consult that society’s Code of Professional Conduct which can be found at http://www.facs.org/fellows_info/statements/stoprin.html. The AMA has an extensive document entitled “Principles Governing Advertising in Publications of the American Medical Association” which provides guidance.  This document can be found at http:/pubs.ama-assn.org/misc/adprinciples.pdf .

Mr. Sacopulos is a practicing attorney in Indiana.  This article reflects his opinions and perspectives on advertising and legal issues set forth in this article. 

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Medical Spa Photographs & Testimonials: Keeping it Legal

Medical Spa ads are often peppered with photos (highlighting “real” patients and models) and glowing testimonials.   

Images of more than ideal treatment results from Botox, laser hair removal, fillers, chemical peels, photofacials grace local rags to targeted online ad placements…okay, you get the picture. 

A recent article stated that there are now more medical spas in the US than Starbucks!  Now, that makes for a very competitive market. 

As you strategically, aggressively advertise your Medical Spa – are you aware of the legal guidelines & do you know how to keep your advertising legal? 

The ever increasing number of State and Federal laws that can pertain to the use of photographs of patients has triggered a lot of questions from the medical community.  Below are some frequently asked questions and answers from Michael Sacopulos, General Counsel for Medical Justice Services.  Note these are general answers and are not State specific.  You should consult local licensed counsel to address laws, regulations and prohibitions specific to the State in which you practice.

Question #1:

When do I need to use the label “MODEL” on a photograph?

Answer:

The term “model” should be used when the photograph is displaying the results of a procedure or procedures not performed by the physician or practice (displaying the photograph).  Here the term “model” is being used in a general representative fashion and is not being used to display a specific practice or physician’s professional services/results. 

Physicians should secure a written release from any individual, patient, or model before using a photograph of that individual, patient, or model in any way.  The release should be specific to the photographs being used.   The release should also specify the way or ways that the photographs may be used.  For example, a release “for educational purposes”, will not cover internet marketing.  Do not attempt to get a release signed that covers “any and all future images, photographs or depictions…”  Courts have ruled that releases can go stale.  Finally, it is best for the release to specify the conditions and manner by which an individual may revoke the release at a later date.  

Question #2:

I hear the use of testimonials has regulations. Please explain.

Answer:

There are several sources of regulations over the use of patient testimonials.  Some state licensing boards greatly restrict or prohibit testimonials.  Each state has different standards; some flexible, some very restrictive.  The Federal Trade Commission also has rules that apply to the posting of testimonials.  In general, a physician should make sure that the testimonial is accurate (what the patient really said and not paraphrased).

Question #3:

What does HIPAA have to say in its marketing regulations about the use of “before and after” photographs and testimonials?

Answer:

HIPAA in general protects patient privacy.  Although the act does many things, it would prohibit the use of before/after photographs without a patient’s permission.  However there is nothing in the act that would prevent the use of accurate before and after photographs with a patient’s prior approval.  As always, this approval should be documented.  Finally, it should be made clear that a patient can withdraw his or her approval to use the photographs at a later date and that the physician must comply with this subsequent withdrawal of approval.

Question #4:

What is this I am hearing about The Federal Trade Commission in regards to “results not typical” and endorsements?

Answer:

Earlier this year, The Federal Trade Commission set forth new guidelines for the use of testimonials and advertising that apply to many areas including healthcare.  In the past, The Federal Trade Commission has taken action against certain weight loss products when these products were advertised by an individual claiming extreme weight loss.  The FTC’s position was that it is a deceptive trade practice to show an individual has lost 100 lbs. when this result is not at all representative of a typical patient’s outcome.  In this situation, the term “results not typical,” would need to be used.  Under the new regulations, we should expect that the FTC will take a similar approach.  My discussions with FTC officials have led me to believe that the Commission acknowledges that health care results vary.  The Commission’s goal is to see that potential consumers are not misled by advertising.  It is not advisable to select a statistical outlier to be representative and then try to protect it by adding the term” results may vary.”  Under the new FTC rules, you must also disclose the fact if an individual has received compensation (of any amount) or discounted services in exchange for providing a testimonial or endorsement. 

Mr. Sacopulos is a practicing attorney in Indiana.  This article reflects his opinions and perspectives on advertising and legal issues set forth in this article. 

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