For years now, many plaintiffs’ attorneys have used nursing homes brochures, advertisements and other marketing materials to create the illusion of huge disparities between the kind of care the homes claim to provide and what they actually deliver. By portraying advertisements as misleading, plaintiffs’ attorneys have tried to sway juries to believe that facilities are not only poor in providing proper care, but also fraudulently induced admissions by misrepresenting the quality of care available. Until recently, however, allegations of false advertising have mostly been used to help flavor a plaintiff’s case rather than not forming the basis of an actual claim.

Recently however, some plaintiffs have utilized allegations of deceptive advertising to pursue distinct causes of action. Standing alone, say the plaintiffs’ attorneys, public deception resulting from unsubstantiated or misleading claims in health care facilities’ advertising materials is an independently actionable tort. There are many implications of this new approach. While it is too early to tell how successful false advertising claims against nursing homes will be, long term care providers wishing to avoid false advertising claims may want to scrutinize their promotional material for compliance with applicable truth-in-advertising laws.

False advertising claims in California are governed by a variety of statutes and laws.  Although the limited scope of this article does not permit an extensive discussion of the law governing false advertising claims, the primary standard is whether members of the public are likely to be deceived. Whether or not members of the public are likely to be deceived is highly subjective, especially as courts are likely to focus on the varied segments of the public a particular advertisement is targeting. In the case of most facilities, the frail and the elderly will be the “public” the court is protecting. A court will therefore likely hold a defendant nursing home facility to a higher standard of honesty than a defendant in cases involving less vulnerable sections of the public. 

Exactly what this will mean for facility marketing is largely a function of how risk-averse a healthcare company is willing to be in its advertising. If a company believes that the benefits of a compelling ad campaign containing with colorful language outweighs the potential risk for suit from misinterpretation of that language, then that company will continue to advertise more aggressively. Conversely, companies that are more conservative will modify the advertising language to avoid potential liability.

For example, the claim that a facility provides “excellent,” “superior,” or the “best” care may be actionable if the facility has a problematic compliance history. In light of this, it would be prudent for facilities to advertise themselves in terms of goals, rather than accomplishments or absolutes. Instead of saying “we offer the best care,” or “we are rated highest in client satisfaction,” an alternative, goal-oriented statement such as “the members of our staff strive to provide the best care,” would be more defensible.  Perhaps hedging even more, a facility might advertise that “our clients believe our care to be of the highest caliber.” Highlighting an additional strength may also be beneficial, e.g. “we strive to provide care at the most affordable rates.” 

The goal should be to avoid creating absolute standards that cannot be substantiated.  Specific promises should also be avoided. The key is to focus on language which is testable against facts. If it is, then the facility should be prepared to substantiate all such claims with actual data. Opinions, conditional statements, or statements stated in terms of goals rather than absolutes are less likely to be actionable under the false advertising laws.

Jonathon E. Cohn
cohn.jon@arentfox.com
213.443.7515

James Conolly
conolly.james@arentfox.com
213.443.7517