Minnesota Enacts Limits to Medical Advertising

MINNEAPOLIS (CN) - New medical advertising restrictions in Minnesota car insurance laws took effect this week after a federal judge refused to issue an injunction.

Lawmakers said they amended Minnesota's No-Fault Automobile Insurance Act to prohibit deceptive, misleading advertising in the context of automobile accidents.

In a December 2012 federal complaint, however, 1-800-411-Pain Referral Service, chiropractor Sergio Triana and Triana's company, Truman Injury, claimed that new amendments violate free-speech rights.

One change requires advertisers to disclose health care providers' legal names or clinic names.

411-Pain's founder Robert Lewin said, however, that it would be unfeasible to identify each participant in its network of "dozens of health care providers," given the limited available space in advertisements.

In a declaration supporting the group's motion for an injunction, Lewin also fought for the right to advertise specific dollar amounts of benefits available to consumers.

The declaration further claims that 411-Pain offers a "conspicuous and prominent disclaimer" about its use of paid actors in television ads portraying law-enforcement officers.

U.S. District Judge Susan Richard Nelson shot down the demand for an injunction on Dec. 28, 2012, with the statute scheduled to take effect on Jan. 1.

"The court finds that the balance of harms weighs in Defendants' favor," the 42-page ruling states. "411-Pain's advertisements provide no information to the public that a call to 411-Pain will result in a chiropractic or other health care referral. Moreover, callers have no idea to whom they will specifically be referred, as the identify of referral providers is unknown. In addition, 411-Pain touts the possibility of a car accident victim receiving 'up to'$40,000 in economic loss benefits. As previously discussed, this specific dollar amount both artificially raises expectations for certain consumers, and, for other consumers, it implies a lower, more limited amount of recovery than that to which an injured car accident victim may be entitled.

"As to the effect on the public interest, Robert Lewin of 411-Pain asserts that the amendments in the new No-Fault Act will harm members of the public," Nelson added.

Quoting Lewin's declaration, Nelson said "he contends that 411-Pain's advertisements are 'particularly valuable for accident victims who otherwise would not know who to call for assistance.'"

"The court, however, finds that the public interest in receiving clear and non-misleading information regarding medical referrals weighs in favor of denying plaintiffs' motion for a preliminary injunction," Nelson added. "Failing to provide information about the referral nature of 411-Pain's business and the identities of the providers in its network does a disservice to the public, as do advertisements that mention specific dollar amounts of potential economic loss recovery, and advertisements that imply law enforcement endorsement."

411-Pain and its co-plaintiffs failed to establish irreparable harm, the court found.

"While the nature of some of plaintiffs' advertising may necessarily change, the change does not constitute irreparable harm," Nelson wrote. "The court thus finds that plaintiffs have not demonstrated irreparable harm necessary to enjoin the challenged provisions in Minnesota's amended No-Fault Act."

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