Why Physician Ads Should be Pre-Approved.

The concern with advertising regulation by the Texas Medical Board (TMB) is the potentially false or misleading advertising. While the TMB has rules on the subject, little is done to educate physicians, clinic personnel, and office administrators about the pitfalls in physician advertising and there is really no mechanism in place to steer them clear of missteps prior to promulgating advertising that is in violation.

Instead, the TMB has simply taken a no tolerance stance on advertising violations that amounts to “if it’s wrong you’ll be fined or otherwise disciplined regardless of why its wrong.” Physicians are held strictly responsible for any advertising violation even if there are significant extenuating or mitigating circumstances. For instance, a physician who used trusted family members and well qualified marketers and web designers to put together a clinic website was held accountable even though lied to by one of the design team that said the language had been cleared by a legal review when in fact the team member did not run it by the doctor’s attorney. Situation was saying the doctor’s specialty was best able to handle certain conditions, which is a violation of Board rule for advertising professional superiority. It would be the equivalent of a circulating nurse falsifying the sponge count when a surgeon is closing after surgery and then holding the doctor responsible for leaving one in the patient even though he specifically asked the nurse if the count was correct and the nurse lied. It led to a $1000 fine and a permanent disciplinary record for advertising professional superiority that is not readily susceptible to proof. No patient was harmed and the complaint was most likely filed by a competitor. The doctor otherwise had a clean record and a long and respected career in a difficult specialty.

Similarly, doctors are disciplined for advertising violations that include leaving off the name of the certifying organization and simply stating “Board Certified” in a particular specialty without identifying the specialty board or for having mistakenly cited to specialty boards which the TMB doesn’t recognize by rule as sufficiently legitimate. Others have faced disciplinary action for one word errors such as saying “the” leading clinic rather than “a” leading clinic. Such violations are often tied more to marketing personnel at the clinic and oversights by administrative personnel rather than busy doctors delving into and trying to dodge the intricacies and nuances of physician advertising regulation in Texas.

From my experience, patients being misled is not the catalyst for action. Instead, it boils down to competitors not liking the ads and the TMB trying to boost its disciplinary numbers to look stronger to the legislature, the media, and consumer groups. Currently, physicians who violate advertising regulations without intent despite best efforts are lumped into a group of advertising violators who push the envelope intentionally. The solution appears to be addressing the problem on the front end.

Rather than investigate and pursue a myriad of advertising violations with the expenditure of resources that could be used on quality of care cases, and rather than stigmatize doctors with disciplinary actions on the back end of the equation, there should be an advertising pre-approval system much like the State Bar has for lawyers.

Yes, physicians would have to pay a fee to get advertising pre-approved and would have a delay before they could circulate an ad; however, it is better to do that than go through a prolonged investigation and end up with a higher cost in legal fees, time lost out of clinic, and an agency fine. The fee would self-fund the program.

While the TMB in could set up a system through their rule making authority, they have been reluctant to do so — presumably due to the time and cost.

It should be kept in mind that a disciplinary action by the TMB can have far reaching adverse impact on a physician. If later disciplined for anything else the prior action is an aggravating circumstance even if different subject matter and can result in stiffer discipline in the second situation. Even advertising violations must be reported each time a physician seeks a license or license renewal in another state, seeks employment, credentials or re-credentials at a hospital, applies or renews participation in a managed care plan, or obtains or renews malpractice coverage. It remains a part of the physician’s permanent online profile on the TMB website and in TMB public records. Much of the time and money spent on these ramifications could be avoided by an advertising pre-approval system.