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Advertise at Your Own Risk

From: The eWire, 04.15.09

Hospital feud shines a spotlight on the potential pitfalls of medical advertising

by Richard Quinn

A continuing court battle between neighboring New Jersey health systems over “Top Doc” self-promotions should serve as a reminder to HM administrators that their groups’ advertising should always be legally defensible.

“The issue for hospitalists really isn’t different from anybody else,” says Erin A. Egan, MD, JD, a hospitalist at the University of Colorado at Denver and chair of SHM’s Ethics Committee. “If you can claim something quantifiable, you better be able to back it up. If you claim something qualitative, essentially you’re offering an opinion, and opinions don’t have to be based in fact.”

Virtua Health in Voorhees, N.J., and Cooper Health System, based in Camden, N.J., have been engaged in a legal battle since February. Virtua’s advertising claims the hospital has the most “Top Docs” in the region. After Cooper launched a legal challenge to the validity of the claim, a state judge ruled that Virtua could continue to say it had the most “Top Docs,” a claim based on a compilation of rankings from four regional magazines. The judge did, however, rule that Virtua had to withdraw wording from advertising that claimed the findings were made by an "independent" source, as Virtua had hired a group to compile the rankings. The judge also told Virtua to remove Web links to sites that explained how the figures were tallied. A federal case is pending.

Dr. Egan notes that few HM advertising tiffs result in similar legal claims unless they involve fraud. She adds that such battles often are costly and fruitless. For this reason, she urges advertisers to ensure their promotions are legally defensible. She offers these tips for any HM group when creating a marketing campaign:

  • Use subjective language for subjective claims;
  • Make sure you can back up all factual claims; and
  • Think about the response you will give if you are challenged.
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