Murray J. Goodman, MD, answered questions on newly adopted and proposed SOPs during the NOLC.


Published 6/1/2007

Advertising SOPs establish practical, “bright line” standards

In April, the AAOS adopted new Standards of Professionalism (SOPs) on Advertising by Orthopaedic Surgeons. AAOS Now Executive Editor G. Jake Jaquet sat down with Murray J. Goodman, MD, the chair of the BOC/BOS Professionalism Committee, to see what the new SOPs mean for the fellowship.

Jaquet: What was the genesis of the new SOPs on advertising by orthopaedic surgeons?
Over the years, the Academy has received complaints regarding what has been perceived as inappropriate or unethical advertising by orthopaedic surgeons—not massive amounts, but one every couple of months. Sometimes the complaints were from orthopaedic surgeon-competitors in the same community; other times they were from patients or orthopaedic surgeons who happened to see the ad. People would phone in and say, “This ad just doesn’t seem right.” Often the complaints involved a surgeon’s listed credentials or exaggerated descriptions of outcomes, or a surgeon’s claim to be a world expert, things like that.

The problem was, the Academy really had no mechanism for dealing with these complaints nor any arena where they could be heard. Complaints could go to the Ethics Committee. The Committee would typically send a letter of advice and concern, but it had no enforcement powers. About the only recourse someone might have would be to file a complaint with the Federal Trade Commission (FTC) or bring a civil suit, either in federal or state court. But the FTC really doesn’t resolve private disputes. If a significant number of complaints are filed, the FTC could conduct an investigation, but it won’t notify the people who filed the complaint, and it generally doesn’t publicize the outcome. It’s just not really satisfactory.

In 2005, after the SOPs on expert witness testimony were adopted, the BOC Professionalism Committee was approached by AAOS General Counsel Rick Peterson. His office had received an unusually high number of complaints that year regarding advertising, and he forwarded them to our committee to see if they could be addressed through a standard of professionalism.

So, we started by taking a look at the problem ads, and at the existing regulations, and at what other organizations were doing in this regard.

Jaquet: Were there any aspects of putting the standards together that were particularly unique or challenging?
With any standard, you want to have something that is practical. The AAOS doesn’t want to discourage truthful advertising; it feels that advertising and competition are beneficial to both patients and the profession. It also doesn’t want to do anything that could be construed as being in restraint of trade. So we couldn’t step beyond the FTC guidelines, but we wanted to show that there is a minimum standard expected in advertising.

Because we wanted our standards to comply with the FTC, we began with those guidelines, which basically say that advertising must not be false or misleading. The FTC also says that advertisements must not be deceptive, but doesn’t provide many examples.

First, we had to define what advertising is. According to the preamble to the SOPs, advertising is more than just printed material; radio, or television. Even your letterheads, practice brochures, and business cards qualify as advertising. Under the SOPs, any advertising has to be truthful and not misleading or deceptive, including information on letterhead or in radio spots.

We also wanted to provide a “bright line” to the fellowship and the AAOS Committee on Professionalism (COP) because they would hear any complaints. We wanted to make it relatively easy for someone to look at the SOPs and determine whether a violation exists. That was the challenge. We tried to consider every possible medium and every potential violation.

Jaquet: Are the FTC guidelines static or are they revised from time to time?
My impression is that the guidelines don’t change very much, but their interpretation may change. The FTC guidelines clearly ban false or deceptive advertising, and they require advertisers to have evidence to back up their claims. The FTC’s “Frequently Asked Advertising Questions: A Guide for Small Business” is a good resource.

Jaquet: What about state or local laws? How do they compare with the SOPs?
The FTC provides guidelines for advertising, but the states regulate the practice of medicine. So, the state can regulate advertising by physicians, whereas the FTC’s focus is more a broad regulation on advertising per se. Virginia, for example, has very specific rules regarding advertising by physicians. They even address the issue of quoting fees and what the fees include. When you quote a fee in Virginia—whether in advertising or in your medical practice—you have to include all necessary related procedures. An ad that quotes a fee for a procedure but doesn’t talk about everything else related to that procedure could be deemed deceptive or misleading.

Each state has different rules, so fellows are advised to check both state and federal rules and laws.

Jaquet: What aspects of the advertising SOPs are most important for fellows to be aware of? In other words, where might they want to pay particular attention in their activities to ensure they are in full compliance with the SOPs?
Minimum standard 5 [see page 48] says “an orthopaedic surgeon shall not use 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”—and here’s the important part—“that are not representative of results attained by that orthopaedic surgeon” [emphasis added]. In other words, you can’t advertise your services based on somebody else’s results. If you’re marketing a new procedure, you can’t base it on somebody else’s experience of 98 percent good and excellent results. You can’t make promises that you cannot demonstrate that you can keep. Your advertising has to be representative of your own results.

Fellows should also approve any ads promulgated on their behalf by advertising, public relations, or marketing firms retained by their practices. That’s the thrust of minimum standard 6. If you arrange for those ads, it is your responsibility to make sure that they comply with the SOPs—that they are truthful and not misleading.

In addition, minimum standard 7 states “an orthopaedic surgeon shall make a reasonable effort to ensure that statements made by an academic institution, hospital or private entity on his or her behalf are not false or misleading,” So, if somebody at your institution is marketing your services, you have a certain responsibility to make sure that that is accurate as well.

Jaquet: What do you mean by “reasonable effort”?
We recognize that orthopaedic surgeons may not have total control over advertising at an academic institution or hospital on behalf of the orthopaedic surgeon. Sometimes, the surgeon doesn’t even see the ad until it appears in the local press. It’s much different than if the surgeon or practice is contracting with a marketing or PR firm; then, you are absolutely as responsible as if you had drawn that ad yourself.

Two other minimum standards that are worth special attention are 9 and 10, which relate to misrepresenting academic credentials, experience, or volume of surgery. Some of the complaints received by the Ethics Committee focused on these issues—people who claimed board certification in subspecialties that do not have a board certification procedure, people who claimed to invent or develop a procedure that they had no or little role in developing. We need to be truthful in telling our patients exactly what our experience is and also what our credentials are.

Jaquet: When do the advertising SOPs go into effect?
They went into effect on April 18, 2007. Any grievance or complaint would have to be about an ad that appeared or aired after that date.

Fellows should realize that the advertising SOPs were developed as an enforcement tool. We hope there will not be a lot of grievances but that they will serve as educational vehicles. We want the fellowship to become aware of what the minimum standards are and what constitutes correct behavior in advertising. We’ll work with fellows to modify behavior and ensure compliance.