Join an experienced health care attorney and medical spa expert as we navigate through the quagmire of state and federal regulations regarding this industry.
Monday, January 14, 2013
Ethical Considerations in an Aesthetic Medical Practice
There is no question that aesthetic medical providers face a higher risk of professional liability. Aesthetic medical providers take great care in selecting appropriate liability insurance coverage. However, it is equally true that such providers also face a greater risk of ethical allegations and they can come from a variety of sources (unlike liability that typically stems from the provider – patient relationship). Ethical allegations can result from advertising or conduct unrelated to your practice of medicine. Additionally, aesthetic medical patients have higher expectations from aesthetic medical procedures and they demand a higher level of outcome and expectation. If they do not receive their expected outcome, it is your fault!! Many attorneys that represent disgruntled patients in a professional negligence matter will suggest that the patient file ethics violations first. If there is a finding of ethical violations from the state, the attorney will utilize this finding to allege negligence in the liability claim. Attorneys can argue that it is “unethical” to utilize a medical device or product in an “off label” manner. Virtually every aesthetic medical provider utilizes medical products and devices in an “off label” manner (Botox Cosmetic, dermal fillers and many laser procedures are examples). The attorneys will instruct the client/patient to file the ethics complaint that alleges that the treatment was “off label” and therefore unethical, per se. Accordingly, aesthetic medical providers are at a higher risk of ethics complaints than their traditional medical colleagues.
I have discovered that most aesthetic medical providers are not clear on what they should do if they have an ethical situation.
The first consideration in this discussion is patient selection. If your instincts tell you that a particular patient may expect too much or have unrealistic expectations, do not treat them! I advise providers that “it is not the patients that you treat that will make you successful, it is the patients you choose NOT to treat that will make you successful.” Marketing 101 dictates that it takes 10 successful patients to get one referral but it only takes one disgruntled patient to lose 10 patients. Many ethical issues arise out of unrealistic expectations of the patient. Avoiding certain patients from the outset will substantially lower your risk of ethical allegations. Patients complain to a medical board because they are not happy in the result and of course it is the provider’s fault.
In regard to patients, document EVERYTHING in the chart…and document proximate to the time of the discussion with the patient. Do not document a chart a week after the patient discussion!
The next significant source of ethical situations is advertising. We can devote an entire series on this topic, but for the purposes of this article, understand the advertising and issues are highly correlated.
Finally, ethical situations can arise from conduct in your personal life that is entirely unrelated to the practice of medicine. Even Driving While Intoxicated charges have resulted in providers facing the state medical board. The trend is toward more scrutiny.
There is a global ethical issue that many aesthetic providers fail to consider and it can be very damaging. I will state in advance that this seems totally unreasonable, BUT you have a duty to disclose to your state medical board and certification board any conduct which may become an ethical issue in the future. If something occurs in the office that MAY put you in an ethical conundrum, you have to report it. Failure to report it can give rise to additional sanctions or loss of board certification. Affirmatively reporting also decreases the risk of severe sanctions for alleged unethical situations because you cooperated in advance.
I strongly recommend that whenever you feel that you are in an ethical conundrum, write to the state medical board and ask for their guidance.
This is very powerful. They cannot charge you with an ethical violation if they participated in the course of action! They may choose not to respond to your query, but the fact that you sought their guidance and counsel is very compelling.
So, What DO I Do When I am Notified of an Ethical Investigation?
If you receive a letter from your state board licensing board, pay strict attention to the action items that the board is requesting. The boards typically ask for a response within ten days. I suggest that you formulate an initial response that acknowledges receipt of the allegation and tactfully denies that any unethical conduct was conducted. Also indicate that your initial response is a preliminary one. You will provide a more thorough reply after you review the chart and interview any staff members that were involved in the patient care. I should also mention that any of your staff can create unethical situations and the medical provider is responsible for these too. Everything stated in this article pertains to the medical providers and staff since you are responsible for their conduct. An example of provider ethical liability for a staff member is when a staff member divulges confidential information.
I suggest that you send a definitive response about thirty days after your initial reply. Do NOT wait for the state board to ask for the additional response. The definitive response will include your version of an incident as well as any supporting documentation. It is important to interview staff members that may have engaged the patient and include a summary of their version of the incident. The fact that you thoroughly investigated the matter prior to response will go a long way toward a successful outcome. It is prudent that you do not say anything negative about the patient! Remember that if the patient has anger issues, unrealistic expectations or other psychological issues, you should not have treated them! Refer to the disgruntled patient with empathy and respect in all of your correspondence. Express sorrow that the patient feels that something unethical occurred.
You may not receive any additional correspondence from the state licensing board for a long period of time (a year is not unusual). This does not indicate that the board is no longer pursuing the matter. The entire process can take up to three or four years. It is also prudent to hire an attorney to represent you. Many physicians indicate to me that they are afraid to hire an attorney because it may appear that they are guilty. There is nothing further from the truth. There are procedural guidelines and rights that you have and it is proper to hire an attorney to represent you. The state boards expect this and it is the responsible thing to do.
Another aspect of ethical allegations is that you have a duty to report the allegation to your certification board and most organizations to which you are a member. The certification boards require this as a condition of your board certification or membership. Failure to report alleged ethical violations will frequently result in loss of board certification!! This also applies to member organizations such as the American Society of Plastic Surgery (ASPS) or the American Academy of Dermatology (AAD). In fact, if you read the regulations of certification boards and member organizations, you will see that you have to report a wide variety of events such as Driving While Intoxicated or alleged insurance fraud from even a home owner’s insurance claim.
In order to comply with the licensing board or member organization requirements, you only need to send a letter that indicates that an allegation has been made against you and that you are appropriately responding to the allegation and that you believe there is no merit to the allegation. You will probably never hear from them again, but you will have complied with the requirements for certification or membership. Most of your colleagues have not complied with these notice requirements, and if you do comply, there is a much greater chance that nothing will happen to your certification or membership.
Paddy Deighan J.D. Ph.Dhttp://www.medicalandspaconsulting.com