Key Takeaways
- Doctors can use AI, but the practice is responsible for what it publishes.
AI-generated content can contain inaccurate claims, misleading statements, or information that creates legal problems for the practice.
- AI should not be used to fabricate patient experiences or endorsements.
A fictional testimonial, altered patient image, or AI-generated review can create privacy, publicity, and advertising concerns.
- Patient consent does not make every AI marketing use permissible.
How Are Doctors Using AI for Marketing?
AI has quickly become a practical marketing tool for medical practices. A physician can use AI to draft a social media caption in seconds. A practice can generate blog ideas, rewrite website copy, create an email campaign, respond to online reviews, or produce images for an advertisement.
AI can also be used to modify or enhance existing images, create illustrations, and generate content that appears to depict a patient or treatment result. None of those uses is automatically unlawful.
The legal concern is what the resulting content says, shows, or implies and whether it involves a real patient, protected health information (PHI), or another person’s identity. The fact that AI created the content does not shift responsibility away from the practice. If the practice publishes it, the practice is responsible for the marketing.
Can Doctors Use AI to Write Social Media Posts?
Yes. Using AI to draft a social media post is generally different from allowing AI to independently communicate with patients or make clinical decisions. The larger concern is what the AI-generated post claims. AI may produce statements that:
- Exaggerate the likely results of a treatment
- Promise a particular outcome
- Present an unsupported statistic
- Describe a treatment as risk-free
- Imply that a physician is the “best” or “leading” specialist without support
- Make a medical claim that is inaccurate or outdated
For example, a physician might ask an AI tool to create a post promoting a cosmetic procedure. The resulting text could say that the treatment “eliminates wrinkles permanently” even though the physician never intended to make that claim.
Publishing the post does not become safer because an AI tool wrote it. Human review still matters. Every AI-generated marketing message should be reviewed before publication.
The reviewer should consider both legal compliance and accuracy. If the post contains a medical claim, statistic, treatment outcome, or statement about the physician’s qualifications, someone at the practice should verify that the statement is accurate and supportable.
Jackson LLP has previously discussed the legal risks created when AI generates inaccurate information or “hallucinates” facts. Those concerns apply to marketing content as well as legal or clinical materials.
Can AI Create a Patient Testimonial?
This is where AI-generated healthcare marketing can become particularly risky. There is an important difference between using AI to edit a real patient’s words and using AI to invent a fictional experience. Consider these three examples:
A real testimonial edited with AI
A patient provides a genuine testimonial. The practice uses AI to correct grammar or shorten the statement while preserving the patient’s meaning.
This is different from creating a testimonial from scratch, but the practice should still ensure the final version accurately represents what the patient said and that the patient authorized its use.
A fictional testimonial presented as real
A practice asks AI: “Create a five-star review from a patient who says this practice changed her life.”
If the practice publishes that content as though it came from an actual patient, it has created a fundamentally different problem. The practice is presenting a fictional experience as a genuine patient experience.
A real patient whose words are substantially changed
AI can also alter an authentic testimonial to make it more persuasive. If the final version contains statements the patient never made or claims they would not endorse, the practice should not assume that the original testimonial authorization covers the altered version.
The safest approach is to keep the patient’s actual experience at the center of the content and make sure the final version accurately reflects what the patient agreed to share.
Can Doctors Use AI-Generated Patient Images?
Images create another set of questions. A practice might use AI to:
- Enhance a photograph
- Remove distracting elements
- Create an illustration based on a treatment
- Generate a fictional patient
- Alter an existing patient photograph
- Create a new image that resembles an actual patient
The legal analysis depends heavily on what the image represents. An obviously fictional illustration is different from an AI-generated image that appears to show a real patient before and after treatment. The practice should ask: “Would a reasonable viewer believe this is a real patient or a real treatment result?”
If the answer is yes, the practice should be especially careful. Using a real patient’s photograph or likeness may implicate privacy, HIPAA, and state publicity laws. In Illinois, for example, the Right of Publicity Act can create additional considerations when a person’s identity is used for commercial purposes.
The practice should therefore obtain patient authorization specific enough to address the intended use rather than treating “marketing” as permission to use a patient’s image in any way it chooses.
Does Patient Consent Make AI Marketing Legal?
Consent or authorization is an important part of many patient-related marketing activities, but it does not eliminate every other legal requirement. A practice should consider:
- What exactly did the patient authorize?
- Did they authorize a photograph, testimonial, video, or another type of content?
- Will AI modify the original content?
- Where will the content appear?
- Does the finished content accurately represent the patient?
- Does it disclose more information than the patient intended?
- Does the marketing make claims that go beyond the patient’s actual experience?
For example, a patient may authorize a practice to use a photograph on its website. That does not necessarily mean the practice can use the photograph as source material for an AI-generated advertisement portraying the patient endorsing a different treatment.
The more extensively AI changes the original content, the more carefully the practice should consider whether the intended use remains within the scope of the patient’s authorization.
What About AI and Patient Reviews?
Online reviews present a distinct AI marketing issue. Practices may use AI to draft responses to Google reviews or other online feedback. That can save time, but it creates a potential privacy problem if the practice gives an AI tool information about the patient or their care.
For example, a practice might copy a patient’s review into an AI platform and say: “Write a professional response explaining why this patient’s treatment took longer than expected.”
The practice may have provided the AI tool with information about the patient’s treatment that was not included in the original review. Even if the final response is appropriate, the practice should consider whether it unnecessarily disclosed PHI to the AI platform.
AI should also not be used to generate fake patient reviews or create reviews that appear to come from people who never received care from the practice.
A practice can use AI to improve the wording of a legitimate response, but it remains responsible for protecting patient information and ensuring that the resulting communication is appropriate.
Can AI Chatbots Communicate With Prospective Patients?
AI marketing also includes tools that communicate directly with patients. Some practices are using AI-powered chatbots to answer questions from prospective or existing patients. That can create a different set of legal considerations.
Before implementing a chatbot, the practice should understand what information it collects, where that information goes, and whether the vendor relationship creates HIPAA obligations.
The practice should also consider what the chatbot is allowed to say. A chatbot that answers a basic question about office hours presents a different risk from one that tells a patient whether a particular symptom requires medical attention.
Can AI-Generated Healthcare Marketing Be Misleading?
Yes. This may be one of the easiest AI marketing risks to overlook. AI tools are designed to generate convincing language. They are not necessarily designed to determine whether a marketing claim is legally supportable.
A practice should be cautious with AI-generated claims involving:
- Treatment outcomes
- Success rates
- Medical benefits
- Risks
- Comparisons with other treatments
- Physician qualifications
- Patient satisfaction
- Pricing
- Guarantees
For example, an AI tool might generate:
“Our treatment is proven to deliver better results than traditional methods.”
Before publishing that statement, the practice would need to determine whether the claim is accurate, what evidence supports it, and whether the wording creates a misleading impression. AI can make questionable marketing language sound authoritative. That makes human review especially important.
If your practice is using AI to create or modify patient-related marketing, Jackson LLP’s healthcare attorneys can review your proposed approach, consent processes, and marketing practices before you publish. Book your free initial consultation today.
A Practical Checklist for AI Healthcare Marketing
Before publishing AI-generated marketing content, ask:
- Does this content involve a real patient? If so, determine whether the practice has appropriate authorization and whether the final content stays within its scope.
- Does the image depict a real patient or treatment result? Make sure viewers will not be misled about what is real and what is AI-generated.
- Does the content include patient information? Do not put PHI into an AI marketing tool without first evaluating the applicable HIPAA requirements.
- Does the content make a medical claim? Verify treatment claims, statistics, outcomes, and other factual statements before publication.
- Does the content create a false endorsement? Do not use AI to manufacture testimonials, reviews, or patient experiences.
- Has someone reviewed the final version? AI should generate drafts, not make the final marketing decision for the practice.
- Does state law impose additional requirements? Consider state privacy, publicity, healthcare, and advertising laws that may apply to the practice’s marketing. For example, Illinois regulates AI use in mental health care settings.
Using AI Without Losing Control of Your Marketing
AI can make healthcare marketing faster and easier, but speed should not replace good judgment. A practice can use AI to brainstorm, draft, edit, and create marketing content while keeping responsibility for the final product with a human reviewer. The most important step is understanding where the technology implicates patient privacy, consent, publicity rights, and healthcare advertising requirements.
Before using AI to create patient testimonials, modify patient images, respond to reviews, or communicate with prospective patients, establish clear rules for what the technology can and cannot do.
If you are considering using AI for your practice’s marketing, Jackson LLP’s healthcare attorneys can review your approach and identify potential privacy, consent, and advertising concerns before they become problems. Contact us today to book a free, 15-minute phone consultation.
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Frequently Asked Questions About AI Healthcare Marketing
Can doctors use AI to write social media posts?
Yes. Doctors and medical practices can use AI to draft social media content, but the practice remains responsible for reviewing the final post for accuracy, misleading claims, patient information, and other legal concerns.
Can AI generate patient testimonials for a medical practice?
AI should not be used to create fictional patient testimonials that are presented as genuine experiences. Practices should also make sure that AI-assisted edits to real testimonials accurately reflect the patient’s words and authorized use.
Can doctors use AI-generated images in marketing?
Potentially, but practices should be careful when an image depicts or appears to depict a real patient or treatment result. Using a patient’s photograph or likeness may also raise HIPAA, consent, and state publicity concerns.
Does HIPAA apply to AI-generated marketing?
HIPAA may apply when an AI marketing tool receives, creates, stores, or transmits PHI. Whether HIPAA requirements apply depends on the information involved and how the AI tool is being used.
Can AI respond to patient reviews?
AI can assist with drafting review responses, but practices should avoid entering unnecessary patient information into AI tools and should review responses before publication. A response can create a privacy problem even if the original patient review was publicly posted.
Are AI-written healthcare advertisements legal?
AI-written advertisements are not automatically unlawful, but the practice is responsible for the claims they contain. Marketing should be reviewed for accuracy, substantiation, misleading statements, and applicable healthcare advertising requirements.
