In 2009, Oprah Winfrey’s Harpo Productions opened a whole new type of medical practice in the form of “The Dr. Oz Show.” Other shows, like “The Doctors,” soon followed. These media multi-specialty practices are giant HMOs. Television networks determine the approved panels of primary physicians (hosts), “consultants” (guests) and virtual prescriptions. Unlike Dr. Phil or Dr. Joyce Brothers, who worked one on one with their on-air patients, these are medical doctors providing recommendations to millions. They have tremendous potential to inform the public of new or non-Western approaches to health that may indeed promote well-being, longevity and happiness. There is equal opportunity to present misinformation regarding their endorsements with resultant financial and healthcare morbidities of their virtual patients. As examples, Americans spend $60 billion dollar per year on ineffective weight loss remedies and outlets such as Fox News promote the herb ma huang, even though its active ingredient, ephedra, is banned by the Food and Drug Administration (FDA).
Whether they are scholars or scam artists, a key question is whether to leave these programs alone as “doctors without bylaws” or to better define their responsibilities. Disclosure requirements similar to those in other medical practices would enhance the public health benefits of TV medicine and are not unprecedented.
{mosads}When doctors receive financial reimbursement for their endorsements, they are advertising. The Federal Trade Commission states that “if the endorser is referred to as ‘doctor,’ the advertisement must make clear the nature and limits of the endorser’s expertise.” Conflicts of interest and the scientific validity of the claim must be divulged. Currently, virtual doctors are not required to discuss these extremely relevant issues.
Even if the doctors are not reimbursed and it is not advertising, if their recommendations imply or include the purchase of their endorsements, then it constitutes “commercial speech,” which the Supreme Court defined as “speech that proposes a commercial transaction” in State University of New York v. Fox and receives “lesser protection to commercial speech than to other constitutionally guaranteed expression,” as the court found in United States v. Edge Broadcasting Co. Commercial speech can be regulated if it meets the four “whethers” from Central Hudson Gas & Electric Corp. v. Public Service Commission of New York, which are: (1) whether or not it is protected by the First Amendment (i.e., it “must concern lawful activity and not be misleading”); (2) whether there is a substantial governmental interest in restricting it; (3) whether the restriction clearly “directly advances the governmental interest asserted”; and (4) whether restrictions are “not more extensive than is necessary to serve that interest.”
Media medicine clearly fulfills all of these requirements. Despite a recent report that most of the TV M.D. recommendations don’t meet minimal criteria for being evidence-based, the TV docs still merit First Amendment protection. There is a clear government interest in protecting both the financial and physical health of the public. Requirements to identify conflicts of interests, the degree of evidence-based medicine and the possible side effects involving their proposed treatments will clearly advance the government interest via a more informed public. Such requirements recognize the power and responsibility of medicine and are just the commonsense provision of information that the public is entitled to in any medical setting.
And then, of course, there are the basic legal and ethical obligations of doctors. When physicians present the results of clinical trials to their peers, they are generally required to first disclose any conflicts of interest, the logic for prescribing this treatment and to give a full report of its successes, failures and side effects. Similarly, a practicing physician needs to explain to patients what they can expect as a result of their treatment (both benefits and side effects) and should inform the patient if they own stock in the manufacturer of a brand name that they have recommended over a generic medication. There is no reason why television doctors should be excluded from these disclosure requirements.
To be sure, I am not an attorney and there is a potential for overregulation of televised medicine. Fortunately, the U.S. has multiple very vocal organizations, such as the American Civil Liberties Union, that will no doubt provide more than adequate vigilance to insure against this. This is also not just a government task. Health professionals need to assist in creating guidelines for this novel medical subspecialty and informing television doctors that it’s ridiculous to parade their degrees in the program titles and their on-air “costumes,” only to claim that these aren’t medical shows.
The new media medicine created a forum in which physicians can use their gravitas and charisma to inform the public responsibly or irresponsibly. In the modern Hippocratic Oath, a newly minted physician states: “I will remember that I remain a member of society with special obligations to my fellow human beings.” “America’s Doctor” is now on television and it’s time to define these obligations for M.D.s whose offices are in television studios.
Rosenbaum is a professor of pediatrics and medicine at Columbia University Medical Center and a practicing physician in New York City. He is also a Columbia Op-Ed Public Voices fellow.