The Law of Aesthetics: Ignorance Is Not An Excuse
Friday, July 21, 2017
As an aesthetic plastic surgeon, the investment you’ve made in your career has been immeasurable. It is crucial that you do everything you can to protect yourself, especially considering the money, time, blood, sweat and tears you’ve put into getting where you are.
However, when it comes to operating legally and compliantly, many aesthetic plastic surgeons don’t pay nearly enough attention to the laws and regulations that govern their practices. In fact, all staff at a plastic surgery office are subject to health care law, and violation of those laws can subject the entire practice to fines or lawsuits.
Following are the four most crucial pieces of legal advice for aesthetic plastic surgeons.
1. Know the Law.
I am continually surprised at how uninformed aesthetic physicians and their staff are about the laws that govern them. This is not a critique of anyone personally; instead, it is an observation of the state of the aesthetic industry in general worldwide. In every country, there are literally hundreds of laws and regulations that you are required to follow, including state-based laws, medical and nursing board regulations, and national compliance regulations; so many, in fact, that an entire legal industry has developed around interpreting them.
And despite the byzantine environment in which the industry exists, there has been very little attempt to train the industry on what the laws allow them to do—and don’t allow them to do. This is a glaring deficiency and is, in fact, the reason I formed my company, the American Med Spa Association (AmSpa provides online legal guidance for the aesthetic medical industry). Unfortunately, most of the time, laws are written in difficult-to-understand “legalese,” and the information isn’t properly disseminated to its constituents. However, ignorance of the law is never an excuse, and, in my 15 years of practice, I have yet to convince a medical board that a practitioner should be forgiven for a mistake because he or she didn’t know the law.
The bottom line is that a greater attempt should be made to educate the aesthetic plastic surgery community. In the meantime, however, it is up to the physicians themselves to learn the law and ensure their staff knows the law, as well. Read your practice act. Search online. Build a relationship with a health care attorney. Do whatever you can to become educated on the laws that govern your practice, because, I promise, medical regulatory bodies expect you to do so.
2. Be Mindful of Laws Dealing with Modern Marketing.
Aesthetic medicine is different from other areas of medicine. Attend any conference in any country, and you’ll quickly realize that more and more time is devoted to marketing, social media, and patient acquisition. Whether you like it or not, because aesthetic treatments are voluntary, all aesthetic practices must engage in some sort of marketing effort to bring in patients. In this industry, patients must be convinced to come to your practice and must be sold on your practice.
The upside, of course, is that aesthetic surgeons who are good at branding themselves can make a name for themselves on a scale that could scarcely be imagined even five years ago. Young surgeons armed with Instagram and Snapchat accounts can become international celebrities in a matter of months. A solid marketing plan can put you far ahead of your competition and allow you to bring cash in the door without dealing with insurance companies. This is why we see physicians flocking to aesthetics by the thousands.
But be careful. What works in traditional retail outlets and other industries is often forbidden in medicine. For example, even though aesthetic practices are offering and selling voluntary treatments, it is still the practice of medicine. And that means that medical boards hold aesthetic practices to the same standard as every other medical facility.
What does this mean? It means that the practice must be honest and truthful with advertising. It means you must guard patient confidentiality zealously. It means you should be mindful of anti-kickback laws when compensating employees or marketers for referrals or paying commissions for medical treatment (and yes, laser treatments are considered medical treatments).
I teach entire courses on the laws surrounding physician marketing, but many aesthetic physicians are unaware these laws even exist, and most make little or no attempt to inform their staff of the requirements imposed by the law. And with a premium being placed on practice management sessions at conferences, many marketing experts during these sessions are increasingly encouraging staff to engage in practices that violate the law. Be mindful of consultants in this area and check with a qualified health care attorney before implementing any tips learned from marketing consultants to ensure they are legal in your location.
3. Invest in Your Legal Future.
Benjamin Franklin once said, “An ounce of prevention is worth a pound of cure.” This couldn’t be truer in this industry. I have literally made it my life’s work to encourage health care professionals to use lawyers more efficiently. This means having employment contracts reviewed, ensuring proper standard operating procedures and forms are in place, and completing adequate training.
I understand that lawyers are expensive; however, I promise that whatever you spend now will pale in comparison to what you’ll need to spend to fix the situation once a problem arises.
4. Get to Know a Good Health Care Attorney.
This is really the whole point of this article. You need a health care attorney—a general counsel or a “consigliore” for your career. And please don’t use a real estate attorney or general corporate attorney, and please do not rely solely on online forms. I cringe every time a client tells me that they had their employees sign non-competition agreements downloaded from Google, or that their neighborhood attorney set up their corporate structure. I spend as much time fixing those situations as I do building a practice from the ground up.
As mentioned at the beginning of this article, health care law is complicated. There are multiple practice acts and multiple jurisdictions to know about. Just as you, a trained surgeon, would not recommend that a patient receive Botox from a family practice physician, do not rely on general practice attorneys to set up your aesthetic practice. There are nuances and exceptions that general lawyers would never know or fully understand.
This article was originally published in ISAPS magazine.