Abstract
Ethical strictures against advertising are deeply rooted in the history and traditions of the professions. In its June 1977 decision upholding the right of attorneys to advertise, the United States Supreme Court at once acknowledged these historical roots and dismissed them as anachronistic:
It appears that the ban on advertising originated as a rule of etiquette and not as a rule of ethics ... But habit and tradition are not in themselves an adequate answer to a constitutional challenge. In this day, we do not belittle the person who earns his living by the strength of his arm or the force of his mind. Since the belief that lawyers are somehow “above” trade has become an anachronism, the historical foundation for the advertising restraint has crumbled.1
The courts have given the signal for one of two doors to be opened—one to a more accessible, more responsive, more cost-efficient health system; the other to deceptive advertising, huckstering, and an overmedicalized population. The reader is left to guess which will emerge, the lady, or the tiger? As in the story,2 no one knows for certain, but all can form an opinion on the available evidence. The short story is a classic because of its exquisite ambiguity. Did the young princess signal the righthand door to consign her splendid lover to a lifetime of happiness with the beautiful competitor she hated, or did she choose instead to send him quickly to his death, where he might “wait for her in the blessed regions of semi-barbaric futurity? ... The more we reflect on this question, the harder it is to answer.”3 So it may seem with the question of physician advertising and its potential impact on consumers, although the Supreme Court does not share the princess’s certain knowledge of the answer, and the alternative outcomes are unlikely to find the health care consumer—the young suitor of our tale—either eaten alive or transported away in bliss. Still our narrative must close, as the short story did, with the question dangling.
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Notes
Bates et al. v. State Bar of Arizona (47 S. Ct. 2691).
Frank R. Stockton, “The Lady, or the Tiger?” in An Anthology of Famous American Stories, ed. Angus Burrell and Bennett Cerf (New York: Modern Library, 1953), pp. 248–253.
Ibid., p. 262.
Bonnie Bullough and Vern Bullough, “A Brief History of Medical Practice,” in Medical Men and Their Work, ed. Eliot Friedson and Judith Lorber (Chicago: Aldine 1972), pp. 86–102.
E. S. Turner, The Shocking History of Advertising (New York: Dutton, 1953), p. 26.
Ibid.
Ibid., p. 84.
Quoted in ibid., p. 50.
American Medical Association, Opinions and Reports of the Judicial Council (Chicago, American Medical Association, 1971), p. iv.
Ibid., p. 22.
Abraham Flexner, Medical Education in the United States and Canada (New York: Carnegie Foundation for the Advancement of Teaching, Bulletin no. 4, 1910).
“Guilds and Competition.”
William J. Bicknell and Diana Chapman Walsh, “Caveat Emptor: Exporting the U.S. Medical Model,” Social Science and Medicine, 11 (1977): 285–288.
Walter Adams, ed., The Structure of American Industry (New York: MacMillan, 1977), p. vii.
David E. Rogers, “The Challenge of Primary Care,” Daedalus, 106 (Winter 1977): 81–104.
Ibid., p. 86 (figure 2).
Ibid., p. 84.
Victor R. Fuchs, Who Shall Live? (New York: Basic Books, 1974), p. 60.
David Mechanic, “Approaches to Controlling the Costs of Medical Care,” New England Journal of Medicine, 298 (5) (February 2, 1978): 249–254.
Ibid.
Michael J. Halberstam, “Professionalism and Health Care,” in Ethics of Health Care, ed. Lawrence Tancredi (Washington, D.C.: National Academy of Sciences, 1974), p. 247.
Anne R. Somers and Herman M. Somers, “A Proposed Framework for Health and Health Care Policies,” Inquiry, 14(2) (June 1977): 161.
Alice M. Rivlin, Director, U.S. Congressional Budget Office, “Background Paper: Expenditures for Health Care: Federal Programs and their Effects” (August 1977), p. 57.
Alain C. Enthoven, “Consumer-Choice Health Plan,” New England Journal of Medicine, 298(12) (March 23 and March 30, 1978): 650–658, 709–720.
Max H. Parrott, Chairman, National Commission on the Costs of Medical Care, Summary Report (Chicago: American Medical Association, December 1977).
The Massachusetts Medical Society, “Synopsis and Proceedings of the Council Meeting October 12, 1977” (Boston: Massachusetts Medical Society, October, 1977), p. 29.
Goldfarb v. State Bar, 421, U.S. 773 (1975).
Virginia Board of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748 (1976).
Bates et al. v. State Bar of Arizona (47 S. Ct. 2691).
Medical Care Review, 34 (6) (1977): 627.
Richard H. Egdahl, et al., “The Potential of Organizations of Fee For Service Physicians for Achieving Significant Decreases in Hospitalization,” Annals of Surgery, 186 (1977): 156–167.
Lee Benham, “The Effects of Advertising on the Price of Eyeglasses,” Journal of Law and Economics, 15(2) (October 1972): 337–352; Lee Benham and Alexandra Benham, “Regulating through the Professions: A Perspective on Information Control,” Journal of Law and Economics, 18 (2) (October 1975): 421–447.
Quoted in “AMA, FTC Lawyers Clash as Trial Begins,” American Medical News (September 12, 1977): 1.
Alan Booth and Nicholas Babchuk, “Seeking Health Care from New Resources,” Journal of Health and Social Behavior, 13 (March 1977): 90–98.
Keith W. Sehnert, How to Be Your Own Doctor (Sometimes) (New York: Grosset and Dunlap, 1975).
Marvin S. Belsky and Leonard Gross, How to Choose and Use Your Doctor (New York: Fawcett World Library, 1976).
Donald M. Vickery and James F. Fries, Take Care of Yourself: A Consumers’ Guide to Health Care (Reading, Mass.: Addison-Wesley, 1976).
Richard L. Peck, “Do the Yellow Pages Make You See Red?” Medical Economics (August 22, 1977): 114–118.
Ibid., p. 118.
The Doctors Directory (Tucson, Ariz.: Professional Guild of Arizona, June 1977).
Directory of Evanston Primary Care Physicians (Evanston, Ill.: Consumers’ Health Group, Spring 1977).
Ibid., p. 7.
Keith W. Sehnert, How to Be Your Own Doctor (Sometimes) (New York: Grosset and Dunlap, 1975) p. 1.
“Chiropractic Advertising Attacked in Florida,” American Medical News (October 31,1977): 11.
“Clinics Sell ‘A New You’ in Want Ads,” American Medical News (January 23, 1978): 11.
Richard Lewis, “AMA Continues Attack on Misleading M.D. Ads,” American Medical News (January 23, 1978): 1, 11.
Dennis Connaughton, “The Turnabout on Physician Advertising,” American College of Surgeons Bulletin (September 1977): 3.
Irvin Molotsky, “Dentists, Other Professionals Finding It Pays to Advertise,” New York Times (January 17, 1978): 31.
Victor Cohn, “Doctors’ Ads Tout Medical Bargains,” Washington Post (November 28, 1977): A1.
Irvin Molotsky, “Dentists, Other Professions Finding It Pays to Advertise,” New York Times (January 17, 1978): 31.
“AMA [American Management Association] Seminar Covers Aspects of Dental Plans: Trends, Designs, Costs, Premiums, Administration,” Employee Benefit Plan Review (December 1977): 22.
“Unique Ad Strategy Increases Use of Sunrise Hospital on Weekends,” Federation of American Hospitals Review (June 1977): 47.
Herman M. Somers, “The Malpractice Controversy and the Quality of Patient Care,” Milbank Memorial Fund Quarterly (Spring 1977): 193.
“AMA [American Medical Association] Plans Advertising Campaign to Defeat ‘Radical’ National Health Insurance Plans,” NHI Reports (November 7, 1977): 7.
Advertisment in the Boston Globe (December 30, 1977): 12.
Quoted in “FDA Begins Trial of MD Societies,” Medical World News (September 19, 1977): 22.
Matt Clark, “Dr. Huckster,” Newsweek (January 9, 1978): 70.
Ernest Gellhorn and William C. Canby, Jr., “Public and Private Restraints on Professional Advertising and Consumer Information,” Duke Law Journal Symposium Issue on Antitrust Laws and the Health Services Industry, May, 1978, in press.
“Price Controllers are Reaching Out,” Business Week (December 18, 1971): 31.
“FDA Begins Trial,” Medical World News (September 19, 1977): 22.
Patrick O’Donoghue, Evidence About the Effects of Health Care Regulation (Denver, Colo.: Spectrum Research, 1974), p. 99.
Department of Health, Education and Welfare, “Health Planning National Guidelines,” Federal Register 43 (March 28, 1978): 13040–13050.
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Egdahl, R.H., Walsh, D.C. (1978). Health Care Advertising and Marketing: The Lady, or the Tiger?. In: Egdahl, R.H., Walsh, D.C. (eds) Health Services and Health Hazards. Springer Series on Industry and Health Care, vol 4. Springer, New York, NY. https://doi.org/10.1007/978-1-4612-9948-6_2
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