Hospitals try to set themselves apart from the competition with advertisements about the excellent care people can expect in their EDs. But beware: The ads can be used against hospitals by creative plaintiff attorneys in many ways. To prevent this, “ED staff should be empowered to speak up to hospital leadership if they notice false advertisement,” says Amy Zheng, MD, a practicing EP at Southwest Healthcare System, and assistant clinical professor at the University of California, San Diego School of Medicine.
There are some examples of how marketing claims can complicate the defense of an ED malpractice claim:
• Hospital ads referring to “board-certified EPs” are problematic if any EP involved in the patient’s care is not board-certified. “There are lots of scenarios where a particular EP isn’t board-certified, even if most EPs in the department are,” says Zheng. “EDs, especially in places with recruitment issues like rural areas, may be staffed by physicians from different specialties.”
Patients may be seen by trauma surgeons or general surgeons who are board-certified in their own specialty, but not necessarily emergency medicine. Likewise, patients may see a single part-time or locum tenens EP who is not board-certified or a recent graduate who is board-eligible but not board-certified. Any of these scenarios can lead to allegations of false advertising.
• Hospitals may face vicarious liability for EPs’ negligence due to the legal doctrine of apparent agency. It is not enough for hospitals to prove EPs were not hospital employees but independent contractors with their own professional liability insurance. Plaintiff attorneys argue that it is the patient’s perception that matters.
“It is really getting kind of absurd, the lengths that some courts will go, to find the hospital liable in this kind of apparent agency argument,” says Michael R. Callahan, JD, a senior attorney in the Health Care Practice Group at Katten Muchin Rosenman in Chicago. Hospital advertisements can become a pivotal factor. “In one case, the plaintiff argued that because EPs simply had a name tag with the hospital’s name on it, she assumed they were hospital employees,” Callahan recalls.
The defense team demonstrated all the steps taken to make it clear EPs were not employees of the hospital. This included informed consent forms and posted signs. “The court rejected this argument, and found the hospital responsible,” Callahan says.1
Verbal explanations, signage, and forms sending the message that the ED group are independent contractors can refute apparent agency claims. Still, patients could insist they never saw the sign, rushed through the informed consent to get treatment, and had no idea what the “legalese” meant. “Courts will also look to how the hospital ‘holds itself out’ to the public in terms of advertisement and promotion of its services, including the ED,” Callahan notes.
Print and social media can be used to refute the hospital’s claim that ED personnel are not hospital employees.2 Plaintiffs can find ads with statements welcoming new EPs to the hospital or picturing the ED. Plaintiff attorneys claim the patient assumed this meant the EPs were hospital employees. “The plaintiff attorney will look at whatever arguments they can make to connect the EP to the hospital, to somehow convince the court that the patient viewed the EP as a hospital employee,” Callahan says.
Similarly, if the hospital’s advertising promises a level of care that is not met by independent contractor physicians, that is problematic. It potentially raises the standard of care to which the hospital is held, explains Matthew Zimmerman, JD, a partner in Holland & Knight’s West Palm Beach, FL, office. It is not just marketing or advertising that is at issue. “It’s also internal manuals, handbooks, websites, and even the branding on scrubs or lab coats,” Zimmerman adds.
• Advertisements can provide plaintiffs with additional causes of action, which often are easier to prove and carry longer statutes of limitations than traditional malpractice claims. These cases are highly fact-dependent, according to Zimmerman. “The jury would grapple on whether the advertisements rose to the level of representations, whether they were false, and whether they were material and the plaintiff relied upon them.”
If so, and if the plaintiff’s injuries were connected to or caused by the matter misrepresented, the plaintiff could pursue claims. These claims also may carry the ability to seek punitive or exemplary damages and attorneys’ fees. “In states where damages caps are in place, plaintiffs may use these claims to try to avoid those limits,” Zimmerman explains.
For a negligent misrepresentation claim, the plaintiff must establish that the defendant made a false statement regarding a material fact, the defendant knew or should have known the representation was false, the defendant intended the representation to induce plaintiff to act on it, and the plaintiff sustained damages in justifiable reliance on the representation.
“If the plaintiff can show intent, the plaintiff can also assert fraud,” says Zimmerman, adding that consumer protection and false advertising statutes provide additional potential claims. “The advertising must be material and make representations and not be mere ‘puffery’ or ‘sales speak’ that no consumer would reasonably rely upon.”
• Advertisements can create confusion about the standard of care. If hospital ads mention wait times less than 30 minutes, and a patient waits longer, the advertisement can be used to suggest that hospital failed to meet its own standard of a 30-minute wait time. “Jurors may believe the advertised level of care is the standard,” Zimmerman says. The same is true of claims such as “world-class emergency room care” or “a team of qualified doctors.”
A Kentucky hospital’s slogan, “You don’t just deserve emergency care. You deserve remarkable care,” resulted in deceptive marketing claims.3 In Florida, a hospital was subject to a $178 million verdict from a botched bariatric surgery because, in part, the hospital marketed itself as a “Bariatric Center of Excellence” with an “experienced team.”4,5
“The plaintiffs argued there was no team, and the physician working on the surgery was not sufficiently experienced,” Zimmerman says. Marketing should convey the experience of the average patient, with input from ED leadership. If EPs are not comfortable with the message, says Zimmerman, “the marketing should change.”
- Davis v. Ingalls Health System, No. 1-17-1696 (Appellate Court of Illinois, First Judicial District, May 11, 2018).
- Yarbrough v. Northwestern Memorial Hospital, No. 1-14-1585 (Appeal from the Circuit Court of Cook County, Illinois, Aug. 19, 2016).
- Wolfson A. Patient sues Norton over ads and malpractice. The Courier-Journal, Aug. 18, 2014. Available at: . Accessed July 1, 2019.
- Chandler v. North Florida Surgeons (Florida Circuit Court, Jan. 23, 2012).
- Broward C. Clay deputy awarded $178 million in lawsuit against Memorial Hospital. The Florida Times-Union, Jan. 23, 2012. Available at: . Accessed July 1, 2019.