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Questionable Advertising – Direct mailing to patients/ Music video rhinoplasty solicitation -

Question:

Jennifer,

A marketing firm has suggested we send letters to patients that haven’t seen us in more than three years for cosmetic purposes (not medical) to help retain them.  IF we were to send such patients a letter, enclosing a discount card for future procedures in the practice, without having any signed documentation from their former visits authorizing us to do so (but not forbidding us, either), would this be considered a violation of their privacy?  We always get signed releases to send our patients email newsletters but what about this type of postal mail without a release?

Dr. S

Answer:

To start, there are no prohibitions against sending snail-mail mailings.  However, this question is specific to sending snail-mail to prior patients for the purpose of patient retention.  Prohibitions you should be wary of include NYS Education Law 6530 which prohibits -

Exercising undue influence on the patient, including the promotion of the sale of services, goods, appliances, or drugs in such manner as to exploit the patient for the financial gain of the licensee or of a third party.

The AMA also warns against misleading advertising.

So, depending on what the solicitations say, would vary whether it may be interpreted you are disseminating improper marketing materials. If the materials included a list of prior services received, targeting specific patients with personal information, and attempting to “influence” patients, you may be opening the door to potential liability.  The liability in this case would likely derive from a patient complaint against the practice to licensure. Licensure is required to investigate all complaints, and a patient lodging a complaint claiming offense from marketing materials may open the practice to additional exposure beyond the marketing campaign.

Should you elect to proceed, I recommend you have your materials reviewed.  As general advice, protected health information should not be included in any marketing materials and any such materials should not be used to “influence” care or be misleading in any manner.

Example of questionable advertising: Music video rhinoplasty solicitation – Kosher?

Of interest, the Huffington Post reported on Michael Salzhauer, a Miami cosmetic surgeon who produced a rock video about rhinoplasty called “Jewcan Sam.”  Huffington Post provided “in the YouTube-posted spot, a big-nosed fella wearing a yarmulke gets rejected by a hot blonde because of his honker, then takes action. Enter our hero, Dr. Salzhauer. The surgeon, the band and the video director are Orthodox Jews.”  The Post also reports that the American Society of Plastic Surgeons “isn’t laughing” and “has begun an investigation into whether Salzhauer violated the group’s code of ethics to ‘uphold the dignity and honor of the medical profession’.”

Click here to see the story and video.
 
Copyright © 2012 by Kirschenbaum & Kirschenbaum, P.C.
All Rights Reserved. This email is provided for news and information purposes only and does not constitute legal advice or an invitation to an attorney-client relationship. While every effort has been made to ensure the accuracy of the information contained herein, Kirschenbaum & Kirschenbaum PC does not guarantee such accuracy and cannot be held liable for any errors in, any reliance upon this, or losses caused by the information. Under New York’s Code of Professional Responsibility, this material may constitute attorney advertising. Prior results do not guarantee a similar outcome.


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