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AAOS Now

Published 7/1/2007
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Jennie McKee

Do you believe orthopaedic advertising claims?

False or misleading claims violate the new SOPs on Advertising by Orthopaedic Surgeons…and could result in sanctions against the surgeon who makes them.

Have you ever seen an advertisement for an orthopaedic surgeon “board-certified in sports medicine”? How about an ad for an orthopaedic surgeon who performs bloodless, painless total knee replacement surgery and gets all of his patients back on their feet the day after the procedure? Is there anything wrong with these statements?

The short answer is “yes.” These ads contain statements that appear to be false and misleading, because there is no board certification in sports medicine, and because total knee replacement is a major procedure that requires significant recovery time that varies from patient to patient.

In addition, because these ads appear to be false and misleading, the orthopaedic surgeon who used them could be violating the recently adopted AAOS Standards of Professionalism (SOPs) on Advertising by Orthopaedic Surgeons.

“The most important thing for anyone to understand when they’re advertising is that the advertising may not be viewed as false or misleading. Those words appear over and over in the SOPs because they’re the most important,” says Kathleen Delaney, AAOS Professional Compliance Program Administrator.

What’s in the advertising SOPs
To avoid improper advertising, it’s important to understand and comply with the requirements of the SOPs, which can be found on the Academy’s Web site. The mandatory standards are concise, straightforward, and encompass most of the ways that orthopaedic surgeons advertise to the public.

The SOPs prohibit such things as advertising that misleads patients to believe that a diagnosis can be made without consultation, that presents false or misleading statements to a patient or the person responsible for the patient, and/or that makes false or misleading representations of your ability to provide medical treatment.

The SOPs also address the issue of false or misleading certification levels in advertising to the public. According to Delaney, many of the complaints the AAOS has received have been related to this issue.

“One of the areas that has generated a lot of complaints has to do with board certification,” explains Delaney. “An advertisement might say that an orthopaedic surgeon is board-certified in hand surgery. What the advertisement should say is that the surgeon is board-certified in orthopaedic surgery, with a certificate of added qualification in hand surgery. There’s some hair-splitting there, but it’s important because there is no board certification in hand surgery. The same thing holds true for sports medicine.”

When Murray J. Goodman, MD, the chair of the BOC/BOS Professionalism Committee, talked with AAOS Now last month about the advertising SOPs (see Advertising SOPs establish practical, “bright line” standards, June 2007), he focused on standards 5, 6, and 7.

According to Dr. Goodman, mandatory standard 5 prohibits using photographs, images, endorsements, and/or statements in a false or misleading manner that communicate a degree of relief, safety, effectiveness, or benefits from orthopaedic care that are not representative of your results. To avoid violating this standard, make sure that your advertisements are representative of your own results, not someone else’s.

Delaney notes that advertisements may include photos of models who have not had surgery, but the fact that models, not patients, are pictured must be clear in the advertisement.

Mandatory standards 6 and 7 address approving advertisements for your services before they are disseminated. The SOPs hold you responsible for any violations incurred by a public relations, advertising, or similar firm that you retain, so it’s important that you work with them to finalize your advertising in an appropriate manner. It’s also important to work with your academic institution, hospital, or private entity to make a reasonable effort to ensure accuracy in any advertisements they issue on your behalf.

Complying with the SOPs—and the law
What may not seem quite as straightforward as the language of the mandatory standards, however, is the SOPs’ requirement that you adhere to local and state laws governing advertising—as well as comply with the rules that apply to physician advertising enforced by the U.S. Federal Trade Commission (FTC). You should contact an attorney if you have specific questions about how these advertising laws apply to you.

State and local regulations
Every state has consumer protection laws that govern advertisements that appear within the state. To find out what your state’s rules governing advertising by small businesses such as orthopaedic practices are, contact your attorney or city, county, and/or state consumer protection agencies.

The Federal Citizen Information Center of the U.S. General Services Administration Web site (www.consumeraction.gov/state.shtml )that lists local consumer protection agencies, complete with contact information. To access the list, click on “Resource Directory,” “State Resources,” and your state.

Applicable FTC regulations
Orthopaedic surgeons are subject to the FTC’s regulations for advertising practices by small businesses. Visit the FTC’s Web site (
www.ftc.gov) for the latest information about advertising regulations. For specific information on the regulations that apply to small business such as medical practices, refer to the FTC’s “Advertising Practices: Answers for Small Businesses” frequently asked questions (FAQ) Web page.

Among other things, the FAQ document explains that the Federal Trade Commission Act requires advertising to be truthful and non-deceptive, and advertisers must have evidence to back up their claims. In addition, advertisements cannot be unfair. So how does the FTC define “deceptive,” what kind of evidence is needed to back up your claims, and what exactly does “unfair” mean?

According to the FTC’s Deception Policy Statement, an ad is deceptive if it contains a statement—or omits information—that is likely to mislead consumers acting reasonably under the circumstances, and is “material”—that is, important to a consumer’s decision to buy or use the product.

Ads that make health or safety claims must be supported by “competent and reliable scientific evidence,” according to the FTC, which defines “scientific evidence” as tests, studies, or other scientific evidence that has been evaluated by people qualified to review it. In addition, it says, “any tests or studies must be conducted using methods that experts in the field accept as accurate.”

In its Unfairness Policy Statement, the FTC says that an ad or business practice is “unfair” if “it causes or is likely to cause substantial consumer injury which a consumer could not reasonably avoid, and it is not outweighed by the benefit to the consumer.”

Endorsements and testimonials
The FTC’s Guides Concerning the Use of Testimonials and Endorsements
offer advice to small businesses that want to use endorsements from consumers, celebrities, and experts in their advertising. If you use endorsements in your ads, they must reflect the honest experience or opinion of the endorser. Endorsements may not contain representations that would be deceptive, or could not be substantiated, if the advertiser made them directly.

Internet advertising
Advertising on the Internet is subject to the same laws as advertisements in other media; therefore, all Internet ads must be truthful and substantiated. You can ask the FTC for a copy of Advertising and Marketing on the Internet: The Rules of the Road to learn more.

For more information
To view the test of the SOPs on Advertising by an Orthopaedic Surgeons, visit the AAOS Web site at:
www3.aaos.org/AdvertisingbyOS.pdf.

If you have any questions or comments about the SOPs or need guidance regarding how to comply with them, contact the members of the AAOS Professional Compliance Program at professionalcompliance@aaos.org.

Jennie McKee is a staff writer for AAOS Now. She can be reached at mckee@aaos.org

AAOS adopts advertising SOPs
On April 18, 2007, the AAOS Fellowship adopted new Standards of Professionalism (SOPs) on Advertising by Orthopaedic Surgeons. For many years, issues surrounding orthopaedic advertising generated letters and concerns from fellows and members. Orthopaedic surgeons from the Board of Councilors and the Board of Specialty Societies spearheaded an effort to raise the consciousness of their colleagues regarding appropriate advertising.

With the adoption of the SOPs, the fellowship has spoken—or voted—in favor of clear advertising standards of behavior and of holding their colleagues accountable for inappropriate advertisements. Like other SOPs, alleged violations of the SOPs on Advertising by Orthopaedic Surgeons may serve as the basis for a formal grievance under the Professional Compliance Programs.

Grievances can have serious consequences—including suspension or expulsion from the Academy—for the orthopaedic surgeon whose advertisements are found to be in violation of the SOPs. More importantly, false or misleading advertisements can damage a patient’s sense of trust in a physician.

The Academy wants orthopaedic surgeons who advertise their orthopaedic services to do so ethically and in compliance with Federal Trade Commission (FTC) guidelines—and to be aware of ads that may violate the SOPs. This article is one in a series to help educate fellows and member on this issue.