Recently, a prominent plaintiffs firm from West Palm Beach obtained a verdict in excess of eight million dollars against a private healthcare program where patients pay to become members in exchange for medical care and services. Plaintiff in that lawsuit sued the program for medical malpractice and under Florida Statutes Section 817.41 under a theory of “misleading advertising”. The lion’s share of the verdict, over seven million dollars, was for the misleading advertising, which clearly inflamed the jury.Pursuant to the statute, it is “unlawful for any person to make or disseminate or cause to be made or disseminated before the general public of the state, or any portion thereof, any misleading advertisement.”1 Any person who prevails in a civil cause of action under the statute, is entitled to costs and reasonable attorney’s fees and “may be awarded punitive damages in addition to actual damages proven.”2
In her lawsuit, the plaintiff alleged that the healthcare program promised to provide and guaranteed “exceptional doctors, exceptional care and exceptional results,” which was intended to induce plaintiff into becoming a member and seeking care. Plaintiff contended that such a statement was false and was made solely to incentivize her to become a member in the program. She successfully argued that such a statement created a higher burden on the healthcare program than the normal duty to render reasonable care required of healthcare providers pursuant to Florida Statutes Chapter 766.
Given this plaintiff’s success, which has yet to be tested on appeal, under this theory of misleading advertising, we suspect that more plaintiffs and plaintiffs firms will attempt to plead causes of action under this statute, not only because attorneys’ fees and costs are awardable to prevailing parties, but also because it raises the burden from ordinary negligence (What would a reasonable healthcare provider do?) to a higher standard. In light of this, healthcare providers need to be cautious about the representations that are made to the public regarding the physicians employed or on staff and the services rendered to patients, specifically, the marketing claims made on their websites; an advertising or marketing campaign that goes too far to solicit patients may end up being very costly in the long run.
