I. Introduction

The advent of the internet has led to enticing advertising and communication prospects. Through this forum the medical community has access to an unlimited patient market that reaches out across the globe. Persons with professional licenses, however, need to be wary of the potential liability faced when marketing a medical practice across state lines. While utilizing this medium has a huge potential upside, the myriad of laws, both state and federal, create liability exposure that can implicate civil, licensure and even criminal laws.

Physicians have strict rules governing their advertising, both ethical and legal that can gravely impact their livelihood. This article addresses examples of real life landmines which lead to scrutiny of the unwary physician.

II. The Unauthorized Practice of Medicine

One of the major benefits of the internet is also one of its biggest detriments: the internet has no boundaries. A physician in New York can attract business anywhere in the world by placing information about themselves or their practice on a website. Problems arise when the information being placed on the internet crosses the boundaries from mere promotional or educational material to the “practice” of medicine in a state where the professional is unlicensed.

As each state requires the formal application and payment of a licensure fee by a physician to practice medicine in that state, and it is a rare occurrence that a physician placing information on the internet is licensed in every state, physicians must avoid “practicing” on the internet. Placing content on the internet, including offering diagnoses or treatment information to out of state “patients”, may constitute “practicing across state lines without a license, which can give rise to potential liability that could affect your professional license or perhaps violate a criminal statute. As an example, the unauthorized practice of medicine in NY State is a violation of civil, licensure and criminal law.

Each state draws its own line through statute or case law as to what constitutes treatment and/or services rendered on the Internet. Clear disclaimers (i.e., this site provides educational information only and is not intended to create a physician patient relationship) are recommended to our clients to limit the information to be used as general information.

The potential for unauthorized “practice” which could negatively impact ones license is not the only concern for physicians promoting their practice on the internet.

II. Advertising or Soliciting on the Internet

Issues with advertising or soliciting on the internet will be more prevalent than advertisements in other forms of media which are more short lived; the internet not only has a broad reach to a broader audience, but the message is available 24/7 to anyone, anywhere, at anytime to access the physicians message, be they competitor or patient. As such, what makes the internet such an attractive forum also makes it a liability trap if used inappropriately.

In New York, Education Law § 6530(27) establishes guidelines that control improper advertising or soliciting in any forum. Areas covered that may cause problems pertinent to advertising or soliciting on the internet are as follows:

1. Advertising that is false, fraudulent, deceptive, misleading, sensational, or flamboyant

As a proactive measure, any claims purported as true, such as positive treatment results, must be substantiated. Failing to substantiate claims will likely lead to a slue of liability for claims, such as, having “perfect results”, or offering treatment that “does not cause any pain”. Further, many physicians proffer themselves as “the top of the field”, or “world-renowned”, but to do so, means you must have the substantiating data to support your claims.

As an example of recent case law on the matter, a physician was convicted of deceptive advertising when he stated in a newspaper advertisement that he was "subspecialty trained in allergy, immunology, and rheumatology - children and adults." Saunders v. Administrative Review Board for Professional Medical Conduct, 265 A.D. 2d. 695 (Dept. 3, 1999). The petitioner never completed the training in these specialties and further, did not retain hospital privileges in these specified areas. Id. The advertising was misleading ^"insofar as it implied that petitioner has the expertise to practice in specialty areas which he, in fact, does not possess." Id. As such, the Third Department concluded that the finding in a disciplinary proceeding that the doctor engaged in deceptive advertising did not "lack…a rational basis in fact." Id.

A health care provider must be careful in how he words advertisements. A dentist had a newspaper advertisement that stated the following: "When you buy one set of custom dentures at our incredible low price of $169, you get another set absolutely free.^" Dubrowsky v. Ambach, 88 A.D.2d 1004, (Dept. 3, 1982). The dentist did not intend to give the patient a free bottom denture with the purchase of a top denture. Id. He merely would copy the denture that the patient was paying for, i.e. if the patient paid for a top denture then the dentist would give the patient another top denture free of cost. The State Board of Dentistry found that this advertising had been misleading. Id.

By contrast, a dentist was not convicted of false and misleading advertising when the information contained in the advertising was up for scientific debate. Callahan v. SUNY, 129 A.D,2d. 241 (Dept. 3, 1987). The court also said that ^"the capacity of advertising to mislead is judged by the entire context.^" Id. The court declined to intervene in a "purely professional dispute concerning the effectiveness of two accepted methods of treatment." Id.

2. Use of Testimonials

The use of testimonials has always been a popular method of conveying to the public positive results seen in practices, however, many physicians are unaware that under Education Law § 6530(27) testimonials are not allowed in physician advertising. While the statute does not define testimonials, the definition of a testimonial in the Merriam-Webster dictionary is expansive and may include: (1) a statement testifying to benefits received; (2) a character reference; or (3) a letter of recommendation. Further, through our communication with the Office of Professional Medical Conduct (“OPMC”), their position is that they read the education law as a literal definition of the statute, which states that “Advertising or soliciting not in the public interest shall include, but not be limited to, advertising or soliciting that: (iii) uses testimonials.”

Therefore, although physicians oftentimes may use testimonials on their websites, advertisements or other statements in their notices to the public, according to the enforcement agencies this could be the source of investigations involving licensure actions in the future. Unless the statute is amended or a definition limiting what testimonials are off limits (i.e., guarantees, etc.) testimonials are an improper means of promoting ones practice, which seems to fly in the face of the current trend, but nevertheless is prohibited under New York Law. As such, if you are currently using testimonials in advertisements or your website or are planning to do so in the future, we recommend you reconsider until this area of exposure is further clarified.

3. Guarantees of Service

Education Law § 6530(27), will feature potential liability for problems associated with guarantees of service. In many physician websites already up and running, doctors are publishing statements that may be interpreted as guarantees of service.

Guarantees of service may include the guarantee of end results, the guarantee of recovery time, and the guaranty of price and so on. It is unclear how/if the term “guarantee of service” will be interpreted. It is clear, however, that no matter how it is interpreted, physicians must be wary of the claims made on their websites.

4. Claims Relating to Products and Prices

As with services, physicians must be careful when marketing products online. Without properly substantiating claims concerning projected product results, physicians face a mountain of potential liability. Unlike other industries that may or may not be held liable for such claims, as such a highly regulated profession, medicine is held to a higher standard. Doctors cannot simply think just because other professions can sell products on ebay or make claims of success rates on personal websites it is alright for them to do so as well. All claims in physician advertisements MUST be substantiated.

e. Claims of Professional Superiority

If you are advertising on a website, any claims of professional superiority should be substantiated by your license. If you are not an anesthesiologist, but have one on staff it is imperative that such information is evident on your website.

f. Offers, Bonuses or Inducements

An offer, bonus or inducement in any form other than a discount or reduction in an established fee or price for a professional service or product may lead to potential liability. When trying to market towards the public, and attempting to bring in business by lowering product prices, or even treatment/service prices, physicians must be careful not to incentivize in an inappropriate way.

III. Communication Via Internet

Using the internet as a means of communication with patients may result in liability by your office for breach of confidentiality if forwarded to unauthorized person. While email can be a valid, convenient, and inexpensive mechanism for communication with patients, at issue are privacy, confidentiality and security, which must be addressed to ensure the efficacy and effectiveness of email.

Currently, the Health Insurance Portability and Accountability Act (HIPAA) privacy and security regulations apply to email communications that contain a patient’s protected health information (PHI), as defined in HIPAA privacy regulations.¹ HIPAA requires encryption of messages when sending PHI over the Internet.² Therefore, if your practice is using a third party to manage your email system, HIPAA privacy regulations require a written business associate agreement with the service provider. Also, HIPAA requires physician office networks to have appropriate protection (firewalls and physical security) to prevent unauthorized individuals from gaining access to clinical email or medical records, and to have appropriate safeguards to prevent the loss or unauthorized access to or distribution of PHI. Moreover, as a practical concern, it is virtually impossible to ensure your patient is the one receiving properly sent messages; anyone could be on the receiving end, capable of viewing confidential information, which is why safeguards must be in place.

IV. Conclusion

The aforementioned issues are by no means an exhaustive list of areas that present potential liability risks when utilizing the internet for personal or professional gain as a physician. These are but a few samples of real life issues that have arisen in our representation of clients involved in licensure proceedings and reported cases. The truth of the matter is, as an emerging area, the internet is still categorized as a vastly unknown quantity. The potential for advertising and communication for physicians is just beginning to be seen: pro and con. The coming years promise an enormous increase in both Telemedicine (mainly for hospitals and the government) and Telehealth (mainly for individual providers, currently being used predominantly for monitoring).

As such, please allow the information in this article to serve as a general alert when working with your marketing team to take into account your legal responsibilities to avoid additional cost and liability.

SCOTT I. EINIGER, ESQ.

Scott I. Einiger is the Managing Partner of the Manhattan Division of the law firm Abrams, Fensterman, Fensterman, Eisman, Greenberg, Formato & Einiger, LLP, with its offices located in New York City, New York and Lake Success, New York. He specializes in health care law and represents physicians in professional conduct investigations, the purchase, sale and integration of medical practices, insurance fraud investigations, transactional work, regulatory compliance, and managed care litigation. He helped initiate the mass arbitration lawsuit against Oxford representing fifteen medical societies and hundreds of aggrieved physicians. He is Special Counsel to the New York County Medical Society and General Counsel to The American Academy of Psychoanalysis. He was also part of a comprehensive risk management/quality assurance program designed to reduce liability risks for health care professionals and hospitals insured with the Medical Liability Mutual Insurance Company where he was counsel for 15 years

Mr. Einiger has lectured throughout New York, Boston, St. Louis and Arizona on many health care related topics and also authored articles published in the field, which are available upon request. He received his B.S. in Political Science from Brooklyn College and his J.D. degree from Brooklyn Law School.

In the decision of Foong vs. Empire, a case of First Impression in New York (as reported on the front page of the New York Law Journal, Oct 11, 2002) recently upheld a physician's right to bring a civil action against an HMO who terminated a physician without complying with Public Health Law (PHL) 4406-d due process requirements and upheld a private right of action for bad faith reporting of a physician to the state licensure board — under PHL 230. This decision was affirmed by the Appellate Division First Department on May 29, 2003.

JENNIFER A. KIRSCHENBAUM, ESQ.

Jennifer A. Kirschenbaum is a recent graduate of Brooklyn Law School (J.D., 2006). She joins Abrams, Fensterman, Fensterman, Eisman, Greenberg, Formato & Einiger, LLP with experience in transactional work and general litigation in the fields of employment law, real estate, products liability, personal injury and medical malpractice.

Prior to pursuing her legal career, Jennifer attended Emory University (B.A., 2003) and majored in philosophy with a concentration in healthcare. Jennifer's pre-med and sociology course work included a comparative study between the US healthcare and British system, for which she interned at Queen Elizabeth Hospital (Woolwich, UK), in the administration department and at University College Hospital (London, UK), in the hematology department.

At Abrams Fensterman, et al., Jennifer works closely with physicians in the areas of regulatory compliance, licensure work and managed care disputes; she also works in our transactional department.