Utah society, ASPS, ABPS prevail as federal court tosses truth-in-advertising lawsuit

Jim Leonardo
09/27/2013 at 4:00PM

ASPS applauds the efforts put forth by the Utah Plastic Surgery Society (UPSS) in defeating a federal lawsuit filed by an oral surgeon and an ENT, which unsuccessfully alleged that patient-education efforts in the state – including billboards (pictured) and media interviews modeled after the ASPS "Do Your Homework" campaign – were in violation of the Sherman Antitrust Act.

A federal judge in the U.S. District Court for the Central District of Utah on Sept. 5 ruled in favor of the UPSS, ASPS, ABPS and several ASPS members who were named in a complaint alleging that patient-safety education advertisements amounted to monopolistic efforts and messaging that caused direct financial damage to the non-plastic surgeons. The Court dismissed the complaint as to the federal law claims with prejudice - meaning the plaintiffs cannot refile at the federal level - saying the oral surgeon and ENT failed to allege concerted action that had an anticompetitive effect on the market, or that the defendants (UPSS, ASPS, ABPS, etc.) possess monopoly power in the cosmetic surgery market.

"This certainly is a vindication of our efforts to provide public awareness on the distinctions between ABPS-certified plastic surgeons and physicians who present themselves as similarly skilled," says UPSS immediate-past President Brian Brzowski, MD. "We were helped tremendously by ASPS through its early financial and material support and its guidance in crafting the overall 'Do Your Homework' effort. We also should acknowledge the Society for its help in formulating the language for the truth-in-advertising 'Know Your Surgeon' law that our Legislature passed in 2011."

"This is a big win for ASPS - this public safety education campaign has been modeled largely after the Society's campaign," adds UPSS President Trenton Jones, MD. "And it's a huge win for the Utah Society. This ruling helps add another level to patient-safety efforts in our state."

It should be noted that the U.S. District Court never directly addressed the advertising campaign itself, but dismissed the lawsuit for failure to put forth a federal claim.

The ASPS "Do Your Homework" patient-education campaign was launched in 2011 to provide Society members with support in delivering to the public the message that patients need to know the credentials and training of those who will perform procedures on them.

"We're pleased that this litigation against UPSS and ASPS was unsuccessful in federal court," says ASPS President Gregory R.D. Evans, MD. "We welcome any ASPS-associated group - whether local, state or regional - to confer with ASPS Public Education Campaign leaders to determine the appropriate or proper methods of use and distribution of our messages.

"Those who use ASPS patient-safety messaging need to stay within the guidelines and boundaries as they've been determined by our experts," Dr. Evans adds. "We would maintain that consultation prior to use of our public education materials is a prudent course of action."

ASPS acknowledges the UPSS and its members for their efforts to both bring the ASPS "Do Your Homework" campaign to the state and defend these patient-education efforts.