I am old enough to remember when physicians did not advertise. It was considered a professional ethical issue. Hospital advertising consisted of institutional “We’re here” ads. Anything aggressive by docs or hospitals was considered bad taste… but that was before health care became as competitive as any other type of business.
I have been barraged, as have many of you, by a wave of hospital advertisements as our health care marketplaces consolidate and organizations seek to brand and differentiate themselves. We are subjected to print, radio, and TV ads extolling services, expensive technology, and that fact that each institution cares more than its competitors.
Charlie Rohlfing blogged recently about the worst in hospital advertising techniques, and you will recognize them all. They usually include a Da Vinci Robot and orthopedic surgery that will “get you back in the game.” They claim to be “state-of-the-art,” “leading edge,” or “cutting edge,” with actors playing doctors and nurses in masks.
The Washington Post covers a new order by DC district court judge Gladys Kessler, arising out of an old RICO case brought by the federal government, requiring that the tobacco companies publish advertisements to confess publicly that they previously lied about the safety of smoking and manipulated cigarettes to make them more addictive. I have pulled the district court order and posted it, along with this appendix. The order provides the exact language of the mandated advertisements, but no analysis. Below the fold, I trace the convoluted path this case and a related case have taken through the compelled speech doctrine around the First Amendment, all thanks to a single judge on the Court of Appeals.
A. Adverse Health Effects of Smoking
A Federal Court has ruled that the Defendant tobacco companies deliberately deceived the American public about the health effects of smoking, and has ordered those companies to make this statement. Here is the truth:
• Smoking kills, on average, 1200 Americans. Everyday.
• More people die every year from smoking than from murder, AIDS, suicide, drugs, car crashes, and alcohol, combined.
• Smoking causes heart disease, emphysema, acutemyeloid leukemia, and cancer of the mouth, esophagus, larynx, lung, stomach, kidney, bladder,and pancreas.
• Smoking also causes reduced fertility, low birthweight in newborns, and cancer of the cervix and uterus.
When the University of Pennsylvania Health System sought new patients for its lung transplant service last year, it turned to Facebook and Google.
The results of the $20,000 advertising campaign on the websites exceeded administrators’ expectations.
During a few weeks in August and September, more than 4,600 people clicked on the ads and 36 people made appointments for consultations. One of those is now on the hospital’s lung transplant waiting list, and several others are being evaluated, hospital officials say. While the response may seem small, each transplant brings in about $100,000 in revenue.
“We wanted to test the theory of how successful a digital marketing campaign could be,” said Suzanne Sawyer, the health system’s chief marketing officer. “It was like looking for a needle in a haystack,” she said, noting only about 60 lung transplants are done each year in Philadelphia, where the health system is based.