Remedies by competitors for false advertising

Patients who are victimized as a consequence of false medical advertising are not the only ones who can sue for damages. Under section 43(a) of the Lanham Act, effective November 17, 1989, anyone "who believes that he or she is or is likely to be damaged" by deceptive advertising may bring a civil action for damages (1). Competing physicians may sue other physicians who falsely advertise that they possess unique skills and achieve better results than other physicians because they employ exclusive methods of treatment or claim that certain surgical procedures they perform in the office are absolutely safe and without risk or who advertise false professional credentials to lure patients. Voluntary informed consent excludes the use of deceit. Misrepresentation through advertising deprives a patient of the right to exercise an informed consent (2). A patient who relies on a doctor's false advertising in agreeing to a procedure that causes the patient injury may sue for malpractice even if the procedure was performed without negligence. False medical advertising also exposes the advertiser to litigation by competitors for unfair competition. This article is concerned with the remedy that may be available for instituting private litigation against physicians and other health care providers who engage in untruthful advertising.