Truth-In-Advertising Standards Recommended for General OB/GYN's Treating Infertility

by Craig R. Sweet, M.D. &
Harold S. Eskin, Esq.

Patients are frequently attracted to a particular practice through promotional materials, advertising, or directory of provider listings. If the information in those materials is misleading, the patient's satisfaction, outcome, financial status, and the physician's reputation may be irreparably harmed. General Obstetrician/Gynecologists (OB/GYN's) and Urologists certainly have the knowledge and skills, and therefore the right, to include "Diagnosis and treatment of infertility" among the offerings of their practice. However, using such phrases as "Specializing in Infertility" or "Infertility Specialist" may mislead the patient into thinking that the physician is truly subspecialty trained in infertility. Ambiguities are also created when OB/GYN's advertise that they are "Board Certified in Infertility" when no actual certification exists.

An additional problem occurs when managed care provider listings have general OB/GYN's listed under the subspecialty category of "Reproductive Endocrinology." These same providers do not list Internal Medicine physicians under the heading of "Cardiology" when they are not board eligible or certified Cardiologists. Many infertility patients specifically choose their insurance program by looking under the provider listing "Reproductive Endocrinology" for true subspecialists. Ironically, this false claim of subspecialty categorization comes at a time when general OB/GYN's have tried to be accepted as primary care physicians and not as specialists or subspecialists.

In most states, statutes and regulations currently exist prohibiting misleading advertising. These regulations can be enforced through criminal, civil, or existing regulatory agencies. However, these statutes are often vague and exceedingly difficult to enforce. It is often too costly for the state (i.e., criminal actions) and too costly, time consuming and emotionally draining for patients (i.e., civil actions) to pursue legal remedies. Thus, as a practical result, current statues are not enforced and most misleading infertility advertising goes completely unaddressed.

Clearly, some mechanism is needed to protect the professionalism of physicians who diagnose and treat infertility, the integrity of the managed care organizations, and the patients who seek fertility assistance. Other professionals, such as attorneys, successfully police themselves by establishing and enforcing ethical advertising rules and guidelines. As an example, attorneys prohibit the use of such terms "Specialist" or "Specialty" if they are not truly specialty trained or certified. It is simply being suggested that the medical community adopt similar guidelines and that the advertising actually reflect the level of training of the physician.

In the American Board of Obstetrics & Gynecology (ABOG) bylaws, it clearly states that one of ABOG's primary responsibilities is "To elevate professional standards in the discipline of Obstetrics and Gynecology." Certainly, the encouragement by ABOG of truth-in-advertising would exemplify this objective. Curiously, ABOG has guidelines to review uncertified physicians who falsely claim certification in established boarded areas; however, there are no guidelines to address claims of certification in non-existing boards such as "Infertility."

It is urged that both ABOG and state OB/GYN societies draft truth-in-advertising regulations similar to those of other professional societies. They could encourage their members to adhere to a level of professionalism equaled to or exceeding other professional societies. While voluntary compliance from physicians needs to be encouraged, safeguards should be in place that may include such steps as (a) review by ABOG of advertising complaints with possible suspension or removal of board certification if intentional problems persist; (b) suspension or removal of membership status by State OB/GYN societies when intentional problems persist; and (c) adoption of state statues that protect reporting physicians from counter suits if complaints are registered with the appropriate regulatory agencies. The practical enforcement of the above suggestions is untested and it is encouraged that other ideas be offered.

Fortunately, the Board of the Society for Reproductive Endocrinology and Infertility (SREI) decided, in 1998, to notify offending insurance companies of physicians improperly listed under the headings of "Reproductive Endocrinology & Infertility". The Board agreed to contact the State Insurance Commission and the Federal Trade Commission should the physicians not be removed from the listing. We will have to wait to see of the SREI Board is successful but at least this is a step in the right direction. Unfortunately, the Board has not yet decided to move towards the more comprehensive concept of establishing truth-in-advertising standards.

In summary, it is believed that improper infertility advertising adversely affects patients, errant physicians, the general medical community, and reflects poorly on all physicians who practice in the field of infertility. In a period when the field of infertility is undergoing extreme scrutiny, isn't it time that we at least make an effort to police ourselves before others insist on doing it for us? Honesty and integrity should be our primary goals and truth-in-advertising in the field of infertility should be encouraged and accomplished.

Year 2000 Update:

"The specialty recognition identified herein has been received from a private organization not affiliated with or recognized by the Florida Board of Medicine."

If you feel that the physician is claiming board certification in an unrecognized area, you may contact Florida Department of Health and they will investigate.

Keep asking many, many questions....

Craig R. Sweet, M.D.
WebMaster