Note: Before proceeding we must inform you that we cannot provide legal advice to individual TMA members because Texas prohibits the "corporate practice of law" ( Texas Government Code Ann. §81.101 ). In addition, the State Bar of Texas has ruled that corporate-employed attorneys may not provide legal services to customers of the corporation if a corporation receives fees that are, to any extent, compensation to the corporation for the attorney's legal services to the customers. To do so is a prohibited form of "fee-splitting" ( Ethics Opinion 498, January 1995 ). The fact that TMA is a non-profit corporation does not seem to change the conclusion. However, we can provide general legal information about this topic. Because your facts may vary, you should contact your own retained counsel for true legal advice and representation.
The Medical Practice Act contains prohibitions with regard to certain types of advertisements. The Medical Practice Act states that a physician commits a prohibited practice if the physician:
- uses an advertising statement that is false, misleading, or deceptive; or
- advertises professional superiority of the performance of professional service in a superior manner if that advertising is not readily subject to verification.
Inappropriate advertising may result in the denial or revocation of a license, civil penalties up to $1,000 per violation, and/or a Class A misdemeanor.
One must keep in mind that there are two separate entities that may enforce statutory and regulatory restrictions on physician advertising. The Health Professions Council, a state agency comprised of representatives from 13 health licensing agencies, and the Texas Medical Board (TMB). The Texas Attorney General is granted authority to file an injunction and seek penalties for a violation of the Health Professions Council's prohibitions, while the TMB generally enforces its prohibitions.
Three sources of information exist regarding the regulation of physician advertising. There are general statutes, more specific statutes, and rules promulgated by the TMB that further clarify and implement these statutes. According to the Occupations Code, all false, misleading or deceptive advertising, or advertising not readily subject to verification, is declared illegal. This includes advertising that specifically:
makes a material misrepresentation of fact or omits a fact necessary to make the statement as a whole not materially misleading;
makes a representation likely to create an unjustified expectation about the results of a health care service or procedure;
compares a health care professional's services with another health care professional's services unless the comparison can be factually substantiated;
contains a testimonial;
causes confusion or misunderstanding as to the credentials, education, or licensing of a health care professional;
represents that health care insurance deductibles or copayments may be waived or are not applicable to health care services to be provided if the deductibles or copayments are required;
represents that the benefits of a health benefit plan will be accepted as full payment when deductibles or copayments are required;
makes a representation that is designed to take advantage of the fears or emotions of a particularly susceptible type of patient; or
represents in the use of a professional name a title or professional identification that is expressly or commonly reserved to or used by another profession or professional.
advertises or assures a permanent cure for an incurable disease;
includes photographs or other representations of models or actors without explicitly identifying them as models and not actual patients;
states that a service is free when it is not, or contains untruthful or deceptive claims regarding costs and fees. If other costs are frequently incurred when the advertised service is obtained then this should be disclosed. Offers of free service must indeed be free. To state that a service is free but a third party is billed is deceptive and subject to disciplinary action;
fails to disclose the fact of giving compensation or anything of value to representatives of the press, radio, television or other communicative medium in anticipation of or in return for any advertisement, article, or infomercial, unless the nature, format or medium of such advertisement makes the fact of compensation apparent.
advertises professional superiority or the performance of professional service in a superior manner if the advertising is not subject to verification; or
claims that a physician has a unique or exclusive skill without substantiation of such claim; or
involves uninvited solicitation such as door to door solicitation of a given population or other such tactics for 'drumming" patients.
Tex. Occ. Code § 164.052(a)(6)-(7) (Vernon 2004). (Medical Practice Act)
Tex. Occ. Code §§ 101.201, 101.251 (Vernon 2004). (Health Professions Council)
22 Texas Administrative Code § 164.3 (2002). (Texas State Board of Medical Examiners Rule)
Any physician who advertises that he is board certified must comply with Rule 164.4 which can be found at
http://www.tmb.state.tx.us/rules/rules/164.php#1644
If photographs or other representations of actual patients are used in advertising, there must not be communication of facts, data, or information which may identify the patient without first obtaining patient consent.
A recording of every advertisement communicated by electronic media, and a copy of every advertisement communicated by print media and a copy of any other form of advertisement shall be retained by the licensee for a period of two years from the last date of broadcast or publication and be made available for review upon request by the board or its designee.
22 Texas Administrative Code § 164.5 (2002). (Texas Medical Board Rule)
The following are permissible advertisements that a physician might employ:
name of practice;
practice location;
hours;
fees (e.g., heart-lung transplants $250.00) but see
#12 , above;
payment the physician accepts (e.g., which HMO/PPO, Medicare/Medicaid, Worker's Compensation, etc.);
services available (e.g., abortion to zoograft);
types of equipment available (e.g., autoclave to Zander's apparatus);
types of tests the physician performs (e.g., amniocentesis to Zeller's test);
number of physicians on staff;
number of other staff;
physician's credentials;
accurate information about success/complication rates;
number of patients treated and for what conditions; and
hospitals at which the physician has privileges.
Special Caution for Testimonials
The TMB defines a testimonial to be "An attestation or implied attestation to the competence of a physician's service or treatment. Testimonials also include expressions of appreciation or esteem, a character reference, or a statement of benefits received. Testimonials are not limited to patient comments but may also include comments from colleagues, friends, family, actors, models, fictional characters, or other persons or entities."
In 2001, the Texas Attorney General issued an opinion to the TMB regarding testimonials. 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.
Medicine is a science-based healing art. Thus, physicians do not and, typically, can not promise their patient a particular outcome. Patient testimonials typically infer to prospective patients that they will obtain the same outcome as the patient making the attestation. Thus, the AMA (in Opinion 5.02) and TMA ethics policy making bodies have concluded that "testimonials of patients as to the physician's skill or the quality of the physician's professional services tend to be deceptive." This is especially so when the attester does not reflect the results that patients with conditions comparable to the attester's condition generally receive.
Professional testimonials have similar risks in that they typically take the form of acknowledging a professional superiority or the performance of professional service in a superior manner. This representation, if not verifiable, violates the law and is unethical.
Simply as it regards testimonials, physicians should strictly limit their use and only permit representations in their advertisements that are readily subject to verification.
The Office of General Counsel
Texas Medical Association
Revised August 2004
Prepared by: TMA Office of the General Counsel
Notice: Please Check the Texas Medical Board Web site ( www.tmb.state.tx.us ) for current updates on its rules and policies with respect to this issue.
NOTICE: This information is provided as a commentary on legal issues and is not intended to provide advice on any specific legal matter. This information should NOT be considered legal advice and receipt of it does not create an attorney-client relationship. The Office of the General Counsel of 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. Although TMA has attempted to present materials that are accurate and useful, some material may be outdated and TMA shall not be liable to anyone for any inaccuracy, error or omission, regardless of cause, or for any damages resulting there from. Any legal forms are only provided for the use of physicians in consultation with their attorneys. You should not rely on this information when dealing with personal legal matters; rather legal advice from retained legal counsel should be sought.