The Lasik industry, being highly-competitive,
is forced to advertise far more heavily than other medical industries.
Many offices rely on “co-op” dollars from their equipment
manufacturers to fund their advertising campaign. VisX, a top-five
manufacturer of laser eye surgery equipment, said in an advertisement
run in 1999 that their equipment was so good that further improvements
would not have any implication for the patient but only help the
doctors to operate the equipment with greater ease.
Obviously, that statement is false. So is the
statement made by Jerry Della Femina, co-owner of a famous New
York ad agency contracted by LaserONE, saying that with LASIK, “there
is no pain!” This is in direct violation of American Academy
of Ophthalmology advertising guidelines, and it is considered to
be deceptive marketing under US law.
Anytime a practitioner makes a statement that
their office provides patients with “perfect vision” every
time or that there are no side-effects such as diminished night-vision,
they may be practicing deceitful marketing techniques. If a practitioner
mentions the great benefits of their new equipment without also
disclosing the risk and complications of that equipment, they may
be practicing deceitful marketing techniques.
The Federal Trade Commission Act (FTCA) specifically
prohibits false ads likely to induce the purchase of food, drugs,
devices or cosmetics. It defines a false ad as one which is "misleading
in a material respect." Thus any statement that cannot be
substantiated and that is likely to induce purchase may be considered
deceptive in nature.
The three simple FTCA rules are:
Tell the truth - Do not mislead consumers implicitly
or expressly about the safety or benefits of your product.
Tell all the truth - Do not omit information necessary
to ground your claims.
Make sure it is the truth - Have adequate support
for any objective claim, express or implied
The US Food and Drug Administration (FDA) also
has several strict rules in place for marketing of medical procedures,
drugs, and devices. Any time a benefit is claimed in marketing
materials, the potential risks and complications must also be disclosed.
Competitiveness of field The LASIK industry is very unique among
other medical fields.
It enjoys high margins, low total cost of entry,
and strong consumer demand. However, these factors are also its
weak points. Since it’s so easy to enter the laser eye surgery
market, LASIK centers are opening up at an astounding pace - even
in shopping malls! And with the incredible margins, competition
can really get dirty. Doctors will tout their new “blade-free” system
or their “low-low price” as compelling factors to use
them over their competitors.
Too often, the clout and rivalry will cause practitioners
to use misleading or blatantly false statements in their copy.
Surgeons will say that their patients have never had problems,
or their equipment is unequaled in the industry. But these claims
are not always made maliciously. Sometimes the advertising agency
in charge simply doesn’t know the rules. The aforementioned
Della Femina agency likely did not realize that ophthalmology advertising
guidelines existed.
And these agencies, their affiliates, and their
clients will try to play off their negligence on ignorance. Fortunately
for the consumer, ignorance doesn’t work in court, and a
reply of “I didn’t know. Sorry.” just won’t
cut it in front of a judge. The sad truth is that not all patients
who have suffered diminished vision after LASIK eye surgery are
able to sue the practitioner for medical malpractice.
It is in these cases that the victim must look
to the advertising practices of the surgeon to see if any recovery
is possible. This may be your only means of recovering any financial
damages. Even if you can sue for medical malpractice, it may be
wise to also sue for deceptive marketing to support your claim.
A practitioner with shady marketing practices will appear more
negligent in the malpractice suit.
If you or a loved one has suffered due to Errors
During A Lasik Procedure, or other complications during Post
Operative Care, please contact one of our Lasik
Attorneys immediately.
