The $49 Exam, the Gift Card for Five Stars, and the Marketing Release Clause

Four separate problems, not one.

• '$49 complete eye exam' and 'free contact lens fitting': price advertising is permitted, but material conditions must be disclosed with equal prominence. If the $49 exam excludes the contact lens evaluation, refraction add-ons, or requires a purchase, the ad is deceptive and reads as bait-and-switch. 'Complete' must match what the patient actually receives.
• 'Board-Certified Glaucoma Specialist': this is a false statement of credential. Completing a therapeutic certification course and observing laser cases is not board certification, and no specialty board has certified him. Misrepresenting credentials is both a board rule violation and a consumer-protection problem, and it is the kind of claim that reappears in a disciplinary complaint.
• '$20 gift card for a five-star review': paying for ratings, and specifically conditioning payment on a positive rating, manipulates prospective patients and typically violates the review platform's terms. Soliciting reviews is fine; buying sentiment is not.
• Missing or sloppy identification: advertising should identify the optometrist as an O.D./Doctor of Optometry and avoid any implication of medical licensure.
• Remedy: withdraw the ads immediately, correct the credentials language, and rewrite the promotion with the conditions stated plainly.

Both parties are partly right and both are overstating.

• The physical/electronic record is generally the practice's property, and the owner is correct that she cannot walk out with originals or the patient list. Her signature and notes cannot be altered or removed by anyone, including the owner.
• The patients are not property. They have the right to copies of their records and the right to direct that copies be sent to a new provider of their choosing. The clean process is a records-release workflow: patient-signed authorization, copies sent to the new practice, a log of what was sent and when.
• What she may not do: copy or use the practice's patient list to solicit patients for her new location, or take any protected health information she is not authorized to have. Departing with a downloaded database is a confidentiality breach regardless of who owns the files.
• Practical advice to her: request copies through the same authorization process as any other requester for the patients who ask, keep no shadow records, and make sure her final chart entries are complete and signed before she leaves, since the record is what will be reviewed if a complaint arises.

Both are consent problems, and one carries statutory penalties.

• Text marketing: 300 patients previously opted out. Sending promotional texts anyway violates federal telemarketing rules (and similar state provisions), with per-message exposure that dwarfs the value of the campaign. Scrub the list against the opt-out records, use an express written opt-in for text marketing, and include an easy opt-out in every message.
• Marketing use of clinical images: a clause buried in a treatment intake form is not a valid authorization. Authorization for marketing use must be separate from consent for treatment, specific about what will be used and where, voluntary, revocable, and time-limited. A patient who refuses must still receive care.
• The arbitration clause deserves separate legal review for enforceability in a health-care context; whatever the outcome, it should not be smuggled in with a signature that patients believe covers billing.
• Redraft as three documents: treatment consent, a separate marketing authorization (opt-in), and a separate communications preference form, with a documented process for honoring revocations. The optometrist should insist on this in writing before the campaign goes live, because the license on the line is hers.