Testimonials in Advertising

NOTICE: Please check the Texas Medical Board website for current updates on its rules and policies with respect to this issue.  

Q. Is it permissible for physicians to use testimonials from satisfied patients to promote their practice?

A. While Texas Medical Board rules do not forbid their use outright, practices should be very, very careful when considering the use of a testimonial in an ad. Testimonials regarding a physician’s skill or the quality of the physician’s professional services may be misleading or deceptive and therefore unethical.

It should be noted the Texas Occupations Code does prohibit testimonials outright. Prior to 2002, TMB did the same, modifying its rules only after the attorney general issued an opinion on whether TMB was authorized to prohibit all physician advertising containing testimonials. To quote from the TMA white paper, “The Regulation of Physician Advertising”:

In that opinion General Cornyn stated that his office could not predict whether a court would find the blanket statutory ban on testimonials to be constitutional. To avoid a constitutional issue, the TMB modified its regulation describing how it will enforce the law. However, the Texas Occupations Code still contains the absolute prohibition and the use of testimonials entails substantial legal risk. Many public relations consultants will assert that testimonials are among the best possible advertising techniques. However, medicine, unlike business entities, cannot generally guarantee outcomes.

Current TMB rules (§164.3. Misleading or Deceptive Advertising) say: “Any advertisement shall be deemed by the board to be false, deceptive, or misleading if it contains a testimonial that includes false, deceptive, or misleading statements, or fails to include disclaimers or warnings as to the credentials of the person making the testimonial.”

The AMA Principles of Medical Ethics hold that “testimonials of patients as to the physician’s skill or the quality of the physician’s professional services tend to be deceptive when they do not reflect the results that patients with conditions comparable to the testimoniant’s condition generally receive.”

The TMA white paper concludes:

Simply as it regards testimonials, physicians should strictly limit their use and only permit representations in their advertisements that are readily subject to verification.

Published June 28, 2012 

 

NOTICE: The Texas Medical Association provides this information with the express understanding that 1) no attorney-client relationship exists, 2) neither TMA nor its attorneys are engaged in providing legal advice and 3) that the information is of a general character. This is not a substitute for the advice of an attorney. While every effort is made to ensure that content is complete, accurate and timely, TMA cannot guarantee the accuracy and totality of the information contained in this publication and assumes no legal responsibility for loss or damages resulting from the use of this content. You should not rely on this information when dealing with personal legal matters; rather legal advice from retained legal counsel should be sought.

Content reviewed: 4/04/2007

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