False Advertising Issues for New York Physicians

Most businesses depend on marketing in general and advertising in particular for bringing in new business. Medical practices are no exception. While physician advertising in New York is generally permitted, it is subject to extensive regulation. New York doctors, whether solo practitioners or medical group members should be familiar with rules governing physician advertising in New York. A violation of these rules may be sufficient grounds for professional discipline.

Physician advertising in New York is controlled by N.Y. Education Law. Generally, all advertising is permitted with the exception of advertising or soliciting that is “not in the public interest”. In fact, any such advertisement is professional misconduct. N.Y. Education Law 6530(27) describes it as “false, fraudulent, deceptive, misleading, sensational, or flamboyant”; also disallowed is advertising that “represents intimidation or undue pressure” or uses testimonials or guarantees any service. Other examples of inappropriate physician advertising are ads that make claims relating to professional services, products, or the costs that the doctor cannot substantiate, make unsubstantiated claims of professional superiority, or offer certain bonuses or inducements for medical professional services.

Advertising of fixed prices or for specified routine professional services in media such as newspapers, periodicals or professional directories or on radio or television is generally permitted but subject to additional limitations.

Any doctor who places a professional ad is obligated to keep an exact copy of each advertisement, transcript, or tape for one year after the ad’s last appearance.

A New York physician is not allowed to 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. Also, physicians may not use demonstrations, dramatizations or other portrayals of professional practice in advertising on radio or television.

While false advertising is a professional misconduct in its own right, sometimes physicians charged with false advertising are also charged with fraud, which is a separate professional misconduct under N.Y. Education Law 6530(2). What exactly constitutes fraud in New York medical practice has been addressed by courts (Sherman v. Board of Regents). Medical practice fraud means that the doctor made a false representation, whether by words, conduct, or by concealing what must have been disclosed, and the doctor had done that intending to mislead.

If the charges of fraud are substantiated, the licensee is in a much graver position. Fraud charges are by far more serious than false advertisement alone and may easily result in revoking a professional license.

In one publicized case (Saunders v. Administrative Review Board for Professional Medical Conduct), the accused doctor placed an ad that represented that he was “Subspecially trained in Allergy, Immunology, and Rheumatology.” In reality, the doctor lacked such training in that area. It was adjudged that the advertisement was deceptive.

Other examples of deceptive advertising include falsely representing oneself as board certified, exuberating own education or past or present employment, honors, awards, etc.

Physicians planning to advertise their services in New York should refer the Principles of Professional Conduct published by the Medical Society of the State of New York.