I am concerned about the marketing strategies some retail-based health clinics use. Clinicians are encouraged to stroll through the aisles wearing lab coats and asking shoppers about their health-care needs. It is suggested that we approach customers in the OTC aisle and offer to explain different products and schedule appointments for them in the clinic. Is a clinician assuming care if he asks about a patient’s history? What if the patient chooses not to schedule an appointment and takes the clinician’s product explanation as a recommendation? Is the clinician liable for a bad outcome? If there is no legal problem, do you see any ethical issues?
—Deborah Williams, CRNP, PhD, Clarks Summit, Pa.
Your comments raise some very important questions concerning the gray area where marketing and medicine converge. Because the clinician is taking the initiative in this situation, a jury is more likely to find that a provider-patient relationship was formed—especially if the patient relied on individualized advice given in the context of this relationship. This finding would create the basic background necessary to bring a malpractice suit. During the ensuing trial, such aggressive marketing might be seen by the jury as unprofessional and bias the jurors against the provider. Apart from liability risk, volunteering your services and offering advice in such a manner pushes the boundaries of traditional health-care ethics.
—David S. Starr, MD, JD (109-12)