Protect Yourself From Advertising Liability: What Dentists Need to Know

The dental industry is a highly competitive market. According to PatientGain, a dentist who practices general dentistry may spend anywhere from $900-$2,500 a month in advertising. Dentists who offer services such as dental implants or Invisalign may spend up to $6,000 a month in advertising! Only a few dentists spend no money on advertising and instead rely on referrals and strong SEO rankings. 

There are many positive aspects to marketing and advertising in the dental industry. However, there are also risks associated with advertising dental services. Understanding the additional liability risks associated with advertising is crucial to protect yourself from professional liability claims, contractual claims and violations of the Federal Trade Commission Act, New York State Education Law 6530(27) and NYS General Business Law. A dentist has a non-delegable duty regarding advertising liability in dentistry and will be held accountable for material appearing in internet advertising, as well as on websites and social media.

The following is information to keep in mind when creating advertisements for your dental practice.

Increased Professional Liability Risks: The content of advertising, websites and social media can increase a provider’s professional liability risk. Efficacy and safety claims in advertising can create a higher standard of care in professional liability claims. This would include claims that “we practice to the highest standards of medicine” or “we have had more success in treating this condition than any other practice in the area.” A patient plaintiff can use such advertising claims against a dentist to show that “highest standards” were not met or that their treatment was “unsuccessful.”

If efficacy or safety claims are to be used in advertising, make sure that such claims can be substantiated with objective data. In addition, a disclaimer should be used indicating that these claims are not guarantees.

Contractual Liability Risk: Like the increased professional liability risk, efficacy and safety claims can also give rise to contractual risks. A patient plaintiff can allege that the advertising claims created a guarantee, expectation or warranty as to a result. Such allegations can be problematic because they may not be covered by a professional liability insurance policy. A disclaimer stating that there are no guarantee or warranty can mitigate the risk of a contractual liability from advertising.

Statutory Risks Associated with Healthcare Advertising

Federal Trade Commission Act (FTC): The FTC has jurisdiction over advertising appearing in various forms on the internet. The FTC Act defines advertising as follows:

• print, radio and TV advertisements;
• internet advertisements;
• websites;
• social media platforms such as Facebook and Twitter;
• patient informational brochures; and
• informational media (streamed internet content).

To maintain compliance and avoid a violation of the Act, the FTC recommends the following guidelines:

• advertisements should be accurate and not contain explicit or implied false claims or misrepresentations of fact;
• there should be no omissions of material facts from advertisements; and
• dentists must be able to substantiate material claims and personal representations made in advertisements.

New York State Education Law 6530 (27): The New York State Education Law 6430(27) considers dentist advertising as professional misconduct if:

• it is fraudulent, deceptive or misleading, sensational or flamboyant;
• uses testimonials;
• guarantees any service;
• makes any claim relating to professional services, products or the cost/price which cannot be substantiated by the provider; and
• uses demonstrations, dramatizations or other portrayals of professional practice in advertising on radio or television.

NYS General Business Law: General Business Law 349 and 350 provide a broad prohibition against all “unfair and deceptive practices” in advertising, including internet advertising, websites and social media. Violations of this statue have been plead against dentists in dental malpractice cases involving procedures, treatments and inducements. The NYS Attorney General has the authority to file charges and levy monetary penalties.

HIPAA and NYS Public Health Law: The use of photographs and testimonials of patients without their express written consent can violate both HIPAA and the NYS Public Health Law. Similarly, communication with patients on social media through responding to positive comments and negative reviews can also violate HIPAA and NYS Public Health Law. Dentists must ensure that they obtain the express written consent from the patient to use a photograph or testimonial. It is recommended that dentists avoid online responses with patient.

Conclusion

When developing your advertising campaign, MLMIC recommends carefully scrutinizing all advertising that refers or relates to claims of efficacy, safety, predictability and success rate.  The following is language to avoid in advertising:

• “our procedure is the safest.”
• “we can essentially cure;” and
• “our physicians are experts in….”
• superlatives such as “best care and highest quality of care.” 

As noted above, such advertising may hold a provider and/or their entity to a higher standard of care during litigation. 

Dental professional liability policies typically exclude coverage arising out of advertising activity or giving medical advice to a “general audience” either personally, electronically or otherwise.  Keep in mind that malpractice liability claims may arise if social media posts, blogs or other electronic communications are construed as specific medical advice or relied upon by patients.

As always, we want to be a resource to you. If you ever have a question about advertising liability in dentistry, MLMIC policyholders can contact a team of risk management professionals 24/7 at no additional cost by calling (844) 667-5291 or emailing hotline@tmglawny.com.

Additionally, MLMIC offers educational programs on the topic of advertising liability in dentistry. Contact us to schedule a program!

Dental professionals can stay up to date on the latest risk management guidance and alerts by monitoring the MLMIC Dental blog, The Scope: Dental Edition and Dental Impressions and following us on Twitter and LinkedIn.

Photo by cottonbro studio.