Hospitals should carefully review advertisements to make sure they don't cross the line between puffery and false advertising, according to a brief in Lexology.
Kathleen Rheintgen, senior counsel with Husch Blackwell, wrote there is a fine line between puffery and false advertising "if these ads cause patients or their families to expect more than what is or even can be offered."
They key, Rheintgen wrote, is the subjectivity of a statement made in advertising; for example, a hospital claiming to have "the best nurses anywhere" could not be liable for false advertising because of the difficulty of quantifying the designation "best." A statement like "Our nurses score highest in satisfaction surveys," however, is a statement of fact, and could be considered false advertising if the hospital could not produce any such survey with those results.
In her brief, Rheintgen advised against using puffery as a defense, as claims of false advertising will have heavy public relations costs even if a defense is ultimately successful.
"Puffery should never be viewed as completely 'safe' in the healthcare arena," Rheintgen wrote. "Any use of puffery should be reviewed closely to determine how important it is in the success of the ad campaign and to determine whether any and all reasonable persons in the market for the services being offered would recognize the statement as an obvious exaggeration that is not being made for its truth."
Rheintgen's warnings are more than theoretical. Last year, Florida's Memorial Hospital was forced to pay $178 million for advertising its weight loss program as a "Center for Excellence." Although the hospital touted its accreditation with the American Society of Bariatric Surgery's Center of Excellence seal, the hospital had allowed a surgeon to perform surgery despite not meeting ASB standards, FierceHealthcare previously reported.
To learn more:
- here's Rheintgen's brief