Appeals court affirms previous
victory for Utah Society, ASPS, ABPS truth-in-advertising efforts
The 10th District U.S. Court of Appeals in Denver, Colo., on Aug. 31 upheld the September 2013 dismissal of a lawsuit filed by an ENT and oral surgeon against the Utah Plastic Surgery Society (UPSS), ASPS, the American Board of Plastic Surgery – as well as 19 individual plastic surgeons – which had contended that patient-safety education advertisements amounted to monopolistic efforts and messaging that caused direct financial damage to the non-plastic surgeons.
The appellate court decision provides another victory for patient safety and organized plastic surgery, while also serving as implicit validation of the ASPS “Do Your Homework” public-education campaign to improve patient safety.
The plaintiffs claimed in the original complaint that the Utah Society’s advertising – specifically billboards posted along one of Utah’s main interstate highways, as well as media interviews modeled after the “Do Your Homework” campaign – were in violation of the Sherman Antitrust Act and amounted to false advertising claims in violation of the Lanham Act. The plaintiffs asserted that the campaign was deceptive by indicating that cosmetic surgery is safer when performed by plastic surgeons rather than cosmetic surgeons.
The Appeals Court concluded late last month that the plaintiffs failed to show any plausible antitrust or deceptive advertising violation, and it affirmed the previous ruling in favor of UPSS, ASPS, ABPS and the individual plastic surgeons named in the lawsuit.
“This decision further confirms the value and importance of our efforts to instill public awareness on the distinctions between ABPS-certified plastic surgeons and lesser-trained physicians who present themselves as similarly skilled,” says UPSS 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.”
“Despite the hurdles we have had to cross in dealing with the lawsuit, I was always supremely confident that we would prevail in promoting safe plastic surgery in Utah and beyond,” adds UPSS immediate-past President Trenton Jones, MD. “This public-safety education campaign was modeled largely after the ASPS campaign, so it’s a victory for organized plastic surgery and a huge win for the Utah Society.”
“We’re pleased that the legitimacy of the public-education efforts of UPSS and ASPS have been recognized yet again by the federal court,” says ASPS President Scot Glasberg, MD. “We applaud the Utah Society for taking a stand for patient safety and our specialty – and we welcome any local, state or regional society to confer with the leaders of the ASPS Public Education Campaign to raise awareness and promote patient safety in their states and localities.”
ASPS acknowledges Dr. Brzowski, Dr. Jones and the Utah Plastic Surgery Society for their efforts to both bring the ASPS “Do Your Homework” campaign to their state, and for defending patient-education efforts.