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«At the core of the patient-physician relationship is a sense of trust. A patient trusts that the physician is knowledgeable and provides appropriate ...»

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ADVERTISING

Standards of Professionalism

Advertising by Orthopaedic Surgeons

Adopted April 18, 2007

AAOS Standards of Professionalism (SOPs) establish the minimum standards of acceptable conduct for

orthopaedic surgeons. Violations of any SOP may result in professional compliance actions against an

AAOS Fellow or Member found in violation. Not prepared using a systematic review, SOPs are

developed through a consensus process and are ultimately adopted as official AAOS statements by the two-thirds vote of the AAOS Fellowship casting ballots.

At the core of the patient-physician relationship is a sense of trust. A patient trusts that the physician is knowledgeable and provides appropriate representations of his or her abilities. An orthopaedic surgeon who misrepresents his or her abilities or advertises musculoskeletal services in a false or misleading fashion damages the patient-physician relationship of trust. In addition, the orthopaedic surgeon who misleads through advertising may prevent a patient from making informed decisions about important health care matters.

For purposes of these Standards of Professionalism, advertising to the public includes, but is not limited to, information appearing on behalf of an orthopaedic surgeon and/or his or her professional entity (e.g., partnership, limited liability partnership or corporation) on the Internet or e-mails and in phonebooks, magazines, newspapers, direct mail, flyers, billboards, video presentations, and directories available to the public. In addition, advertising includes printed material typically used in the practice setting: letterhead, mailing envelopes, business cards, referral forms, office forms, appointment cards, brochures, pamphlets, office mailings, and signage inside or outside of the office. Advertising includes radio and television advertisements, including interviews, and telephone voice messages. Advertising includes any activity in which an orthopaedic surgeon pays in any way, including providing services in exchange for advertising, to communicate with the public.

Advertising of services, as well as competition between and among orthopaedic surgeons and other health care practitioners, is ethical and acceptable. It is the obligation of the orthopaedic surgeon to present a fair and honest representation of services and the goals, alternatives, expectations and risks associated with these services. In advertising as in all communications with patients and the public, orthopaedic surgeons have an ethical obligation to present themselves and the services they provide to patients in a clear and accurate manner. This principle of ethical conduct, when it is applied to advertising, is buttressed by its enforcement in law.

The U.S. Federal Trade Commission also has rules governing physician advertising. It is the responsibility of AAOS Fellows and Members to be familiar with and comply with these regulations as well as applicable State and local laws. Regulations make advertisements that are false or misleading illegal and subject to prosecution. Parties are encouraged that before

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The Standards of Professionalism draw from the aspirational Code of Medical Ethics and Professionalism for Orthopaedic Surgeons that appears in bold italics. The statements that follow the aspirational Code establish the baseline standard of acceptable conduct for orthopaedic surgeons who advertise their services. Violations of these mandatory standards may serve as grounds for a formal complaint to and action by the AAOS as outlined in the AAOS Bylaws Article VIII.

These Standards of Professionalism apply to all AAOS Fellows and Members and all forms of advertising. Only an AAOS Fellow or Member may file a complaint of an alleged violation of these Standards of Professionalism regarding another AAOS Fellow or Member.

Aspirational: AAOS Code of Medical Ethics and Professionalism for Orthopaedic

Surgeons, I. F.:

When obtaining informed consent for treatment, the orthopaedic surgeon is obligated to present to the patient or to the person responsible for the patient, in understandable terms, pertinent medical facts and recommendations consistent with good medical practice. Such information should include alternative modes of treatment, the objectives, risks and possible complications of such treatment, and the complications and consequences of no treatment.

Mandatory Standards:

1. An orthopaedic surgeon shall not advertise information in a manner that misleads patients to believe that a diagnosis can be made without consultation or that one method of treatment is suitable for all patients. Advertising shall not be false, misleading, or lead patients to believe that any given procedure is without risk.

2. An orthopaedic surgeon shall preserve and maintain the integrity of the profession by not advertising false or misleading statements to a patient or the person responsible for the patient.

Aspirational: AAOS Code of Medical Ethics and Professionalism for Orthopaedic

Surgeons, II. A.:

The orthopaedic surgeon should maintain a reputation for truth and honesty. In all professional conduct, the orthopaedic surgeon is expected to provide competent and compassionate patient care, exercise appropriate respect for other health care professionals, and maintain the patient’s best interests as paramount.





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3. An orthopaedic surgeon shall not, when advertising his or her services to the public, make false or misleading representations of his or her ability to provide medical treatment.

4. An orthopaedic surgeon shall not use false or misleading photographs or other images in advertising.

–  –  –

6. An orthopaedic surgeon shall prevent false or misleading advertising by approving all advertisements regarding his or her practice before dissemination. An orthopaedic surgeon shall be held responsible for any violations of this Standard of Professionalism incurred by a public relations, advertising, or similar firm which he or she retains.

7. 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.

Aspirational: AAOS Code of Medical Ethics and Professionalism for Orthopaedic

Surgeons, VI. A.:

The orthopaedic surgeon should not publicize himself or herself through any medium or form of public communication in an untruthful, misleading, or deceptive manner.

Competition between and among surgeons and other health care practitioners is ethical and acceptable.”

Mandatory Standards:

8. An orthopaedic surgeon shall abide by all state and federal laws and regulations related to the advertising of degrees(s) and credentials, not advertising them in a false or misleading manner.

9. An orthopaedic surgeon, when advertising his or her services to the public, shall not advertise false or misleading certification levels.

10. An orthopaedic surgeon, when advertising his or her services to the public, shall not make false or misleading claims or personal representations, including volume of procedures performed and the nature and level of academic appointments and affiliations.

11. An orthopaedic surgeon, when advertising, shall not misrepresent or falsely state his or her role in the development or study of a particular surgical procedure.

3 Opinions on Ethics and Professionalism Advertising by Orthopaedic Surgeons An AAOS Opinion on Ethics and Professionalism is an official AAOS statement dealing with an ethical issue, which offers aspirational advice on how an orthopaedic surgeon can best deal with a particular situation or circumstance. Developed through a consensus process by the AAOS Ethics Committee, an Opinion on Ethics and Professionalism is not a product of a systematic review. An AAOS Opinion on Ethics and Professionalism is adopted by a two-thirds vote of the AAOS Board of Directors present and voting.

Issue raised What parameters exist to guide orthopaedic surgeons regarding advertising?

AAOS Standards of Professionalism on Advertising by Orthopaedic Surgeons, adopted April 18, 2007. The entire document is relevant.

Applicable provision of the Principles of Medical Ethics and Professionalism in Orthopaedic Surgery “IX. The orthopaedic surgeon should not publicize himself or herself through any medium or form of public communication in an untruthful, misleading, or deceptive manner.” Applicable provisions of the Code of Medical Ethics and Professionalism for Orthopaedic Surgeons “I. F. When obtaining informed consent for treatment, the orthopaedic surgeon is obligated to present to the patient or to the person responsible for the patient, in understandable terms, pertinent medical facts and recommendations consistent with good medical practice. Such information should include alternative modes of treatment, the objectives, risks and possible complications of such treatment, and the complications and consequences of no treatment.” “II. A. The orthopaedic surgeon should maintain a reputation for truth and honesty. In all professional conduct, the orthopaedic surgeon is expected to provide competent and compassionate patient care, exercise appropriate respect for other health care professionals, and maintain the patient's best interests as paramount.” “VI. A. The orthopaedic surgeon should not publicize himself or herself through any medium or form of public communication in an untruthful, misleading, or deceptive manner. Competition between and among surgeons and other health care practitioners is ethical and acceptable.”

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American Medical Association, Current Opinions of the Council of Ethical and Judicial Affairs:

Section 5.01 (“Advertising and HMOs”) [Issued prior to April 1977.

Updated June 1996.] Section 5.02 (“Advertising and Publicity”) [Issued prior to April 1977. Updated June 1996.] Legal analysis Federal and state antitrust laws prohibit medical associations like the Academy from impeding physicians who use truthful advertising. The reason for this prohibition is to preserve and promote a free and open market by enabling physicians to disseminate information about their services to patients. Policy makers at the federal and state level believe that truthful advertising may assist patients in making better informed judgments and choices.

Although truthful advertising has substantial legal protections, physician advertising that is not truthful is not protected by federal or state antitrust laws nor is it protected from state regulation by the First Amendment. In fact, physician advertising that is false, deceptive, or misleading within the meaning of Section 5 of the Federal Trade Commission (FTC) Act is illegal. [15 U.S.C. Sect. 45]. The FTC has the authority to sue physicians who disseminate false or deceptive advertising. In addition, the FTC may enjoin them from further dissemination of misleading advertisements, and under some circumstances, may levy fines. Furthermore, physicians who violate an FTC order which prohibits the dissemination of false or deceptive advertising are subject to substantial fines.

In addition, many state consumer protection laws and medical practice acts prohibit false or deceptive physician advertising. These laws generally empower state attorneys general to sue physicians who engage in false advertising for fines or to enjoin further illegal activity. State medical licensure boards often have the authority to discipline physicians who engage in false advertising. In addition, patients who have been injured by false or misleading physician advertising may be able to sue the physician involved for damages under consumer protection statutes or common law fraud claims.

Ethical analysis Orthopaedic surgeons, like all physicians, have an ethical obligation to present themselves and the services they provide to patients in a clear and accurate manner. This principle of ethical conduct is buttressed by its enforcement in law.

A successful physician-patient relationship is based on trust. The patient trusts that the physician has the appropriate training and skills, will listen to the patient’s complaints and symptoms, and will advise the patient accurately and objectively about the alternative courses of treatment. It is essential to this relationship that the patient has confidence that the physician is honest and is not manipulating the information presented for any purpose. Because the patient is often in a relatively uninformed position, patients usually assume that the physician is telling them all they need to know and that what they are told is accurate. Consequently, patients are especially at risk for untruthful, misleading or deceptive advertising.

For this reason, false and deceptive advertising by physicians destroys the trust relationship between the physician and patient which is essential to quality medical care. A physician’s misrepresentation may harm patients by making them less likely to seek out treatments they need or vulnerable to accepting treatments that are not essential.

5 The FTC has developed four general rules to determine whether physician advertisements are

truthful and not false, deceptive or misleading. The four rules are:

1. Advertisements should be accurate and not contain explicit false claims or misrepresentations of material fact. Generally, a false claim or a misrepresentation of fact would be material if it would be likely to affect the behavior or actions of an ordinary and prudent person regarding a physician or physician service.

2. Advertisements should not contain material implied false claims or implied misrepresentations of material fact. An advertisement that does not contain direct false claims or misrepresentations should not by implication create false or unjustified expectations about the physician or physician services being publicized.

An implied false claim or misrepresentation would be material if it would be likely to affect the behavior of an ordinary and prudent person towards a physician or physician service.



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