AVOIDING LAWSUITS: ONLINE CONTENT.
We know that healthcare is a highly competitive and complex field. That´s one of the many reasons why companies spend so much money on customer acquisition, customer retention, and branding. Companies need to compete in order to survive, but where is the limit? According to the Federal Trade Commission (FTC), “when consumers see or hear an advertisement, whether it’s on the Internet, radio or television, or anywhere else, federal law says that ad must be truthful, not misleading, and, when appropriate, backed by scientific evidence.” What does this mean for your company?
In an article published by Lexology, written by Kathleen A. Rheintgen from Husch Blackwell LLP, the author mentions that problems arise if these ads cause patients or their families to expect more than what is, or even can be, offered.
I know what you’re probably thinking right now: That’s not clear or specific enough and can be interpreted in different ways.
Rheintgen clarifies that making a distinction between mere puffery and actionable false claim can be a difficult task. Ultimately, a court will focus on whether a reasonable consumer of the services would view the advertised claim as stating a verifiable fact. She gives some examples:
-Saying “we have the meals with the lowest calories, anywhere” is different than saying “we serve our patients the tastiest meals in the city”. The first statement can, perhaps, be factually verified (and if not true could be an actionable false claim), whereas the second claim about “tastiness” is more a matter of opinion and is more likely to be considered puffery.
-Another example would be the difference between the statements “we have the best nurses anywhere” and “our nurses score highest in satisfaction surveys.” The first statement would be considered puffery as it is hard to quantify “best,” but the second statement could be factually verified and, therefore, liable to claims of untruthfulness.
So, how can you avoid these problems?
There is no definite answer. Someone can still sue you even if there is no basis for a case. To protect yourself and avoid suits, baseless or otherwise, one of the first things to focus on is writing a thorough (and good) disclaimer section. Keep in mind that the more precise and detailed the disclaimer, the better.
But be careful. Writing a very generic or open disclaimer might open the door to people’s own wild, unrelated, illogical, or uncontrollable interpretations. One of the keys to a successful disclaimer is to specify what services you offer and that nothing else should be expected from you or your company.
You might now be wondering, “But what about social media?”
It’s no secret that business dynamics have changed and becoming more and more reliant on social media every day. To keep up with the current trends, you not only have to have a good website, but you also have to use social media as a way to attract new customers and keep your current customers interested. By increasing the number of channels that you use to communicate with people, you will increase your reach, which ultimately means you will have to be extra careful with the content that you put out (the images you show, the text, etc.).
So, how can you avoid these problems in Social Media?
Just adding a disclaimer on your profile will help you avoid most of these issues, but here are some other suggestions:
About pictures. As a general rule of thumb, you should choose pictures that are as close to reality as possible. Whether we talk about a hospital or a health service, the images you post and associate with it matter tremendously. If you want to use stock photos, do so, but don’ t forget to include a tag stating that the person on the photo is a model and not a real client or a real employer.
About videos. Videos can be misleading in many ways, even unintentionally. For that reason, you should include a disclaimer specifying that the video is just an advertisement.
As usual, the devil is in the details and there are always ways in which someone might feel misled. Keep in mind that as long as your content is realistic enough and you are clear in what you are offering and claiming in your content, then you would be able to reasonably manage your readers’ or potential clients’ expectations and lower the chances of being sued for false, misleading, or untruthful advertisements.