'Truth in advertising' tricky for many hospitals, health systems

As hospitals and health systems compete with regional cohorts for greater market share, an increasing number of healthcare companies have faced lawsuits over their advertising practices.

In New Jersey, lawmakers are exploring tighter regulatory standards in healthcare marketing and advertising following a 2016 N.J. Spotlight investigation of Secaucus, N.J.-based Meadowlands Hospital Medical Center and its birth tourism program.

The MHMC birth-tourism program in question, AmeriMama, promoted tour packages online that offered to coordinate medical services for Russian women to give birth at the hospital, enabling their children to qualify for dual citizenship. Newspaper investigators accused MHMC of falsely promoting its neonatal division as one of the best in the U.S. when, in fact, the hospital's Leapfrog grades for a variety of maternity services fell well-below national benchmarks.

The investigation prompted Senate health committee chairman Joseph Vitale (D-Middlesex) and the New Jersey Hospital Association to investigate whether more legislation is necessary to regulate healthcare advertising in the state.

But MHMC is just the latest healthcare organization to undergo legal scrutiny for its marketing and advertising practices within the past several years.

In particular, the healthcare industry has seen an uptick in lawsuits against hospitals over ads for emergency department services. Some critics argue hospitals have geared their ED ads toward increasing profits by driving more patients into emergency treatment facilities.

In 2014, a patient filed suit against Norton Brownsboro Hospital accusing the Louisville, Ky.-based hospital of violating the Kentucky Consumer Protection Act. The patient also sued the hospital for the malpractice of a nurse practitioner who allegedly failed to provide an accurate diagnosis.

The suit claims a patient experiencing severe stomach pain sought care at Norton Brownsboro Hospital because he remembered an ED ad touting it delivered "remarkable care." A nurse practitioner at the hospital failed to spot a potentially deadly form of intestinal infection that resulted in additional health problems for the patient.

Consumer advocates argue inaccurate emergency room wait times posted on highway billboards or on a hospital's website could also be considered false advertising.

A 2015 investigation by Orlando Channel 6 news found ER wait times given to callers over the phone by ER staff were nearly three times longer than those times posted online. Florida Hospital Winter Park and Florida Hospital Apopka both advertised 60 minute wait times when ER staff reported times closer to three and four hours, respectively.

When asked about the time discrepancy, an Orlando Health spokesperson told Channel 6, "The blanket assumption that there is a significant difference in ER wait times posted on our website and actual wait times is inaccurate. The number of emergency room patients and the severity of their conditions can vary widely from minute to minute."

More often than not, plaintiffs fail to win advertising suits against healthcare organizations because quality assertions are not considered legally binding. However, hospital advertisements promising a certain level of quality or a particular ED service are problematic if care expectations cannot be met, Michael Blaivas, MD, professor of medicine at University of South Carolina Medical School, told AHC Media.

"While they [the hospital] may not violate any of the laws of false advertising, the jury may take a different view and feel their community is being duped," he said. "A very negative picture can be painted of an ED that lured in patients and reneged on the promise."

Consumer advocates in California took aim at advertising practices used by crisis pregnancy clinics in recent years. In 2011, elected officials in San Francisco passed an ordinance intended to prohibit crisis pregnancy centers from targeting pregnant women with deceptive, untrue or misleading statements in billboards, websites and online search engine results for 'abortion'.

Critics argued some CPC's print and online advertisements suggested the clinic offered abortion information, resources and compassionate support for women facing unintended pregnancies who are considering abortion, according to San Francisco Gate. The ads did not share that these clinics are strongly anti-abortion and typically religiously aligned.

"Crisis pregnancy centers put their ideological agenda ahead of women's health," Oakland Mayor Annie Washington told Rewire. "They target what they call 'abortion-minded women' with deceptive advertising, implying they offer abortion services or referrals."

In today's market, hospital and healthcare administrators may find themselves torn between keeping up with competitors and toning down marketing claims to avoid legal exposure.

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