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.D http://www.medicalandspaconsulting.com

Every Medical Spa Professional Needs to Have a Marketing System

Everyone has a system...professional gamblers have a system...anyone directly in sales has a system that they must follow. However, most medical spa professionals do not have an organized, structured system. I have developed what has been working exceptionally well for me. I designate 1-2 hours each day on SEO and networking. I refer to this as "BLETWORKING" because it involves my blogs. Many people advocate doing this first thing in the morning. MY sustem is that I do this late at night because this is peaceful time. The phone is not ringing; the TV is not blarring; I put on my favorite music and away I go. I will state at this point that I do the blogging myself. Many delegate this to a trusted employee but I feel that it must come from me. I do delgate posting the blogs to other websites and social neworking sites to staff members. Here is the system: 1. First, I write a blog and upload it to Blogger. I then copy and paste the blog onto my Google + account and also my wordpress blog. This enhances my exposure and takes little time. 2. Then I share the blog on LinkedIn, my FaceBook business page, Twitter and Google + and my Wordpress account 3. Next, I upload the blogs into multiple Twitter accounts that are specific to certain areas of the medical spa industry - Twitter accounts designated for medical spa lawyer (@medispalawyer), med spa attorney(@medspaattorey) , health lawyer (@healthcareEsq) and (@healthlawyer2) and medical spa consultant (@medicalspaconsu) 4. Then I add them to Tweet Adder and allow the automated system to tweet the blog throughout the day from all three sites (Google +, Blogger and Wordpress). This entire process takes 1-2 hours only and I can do these things at my convenience. This process has become my #1 method for obtaining new clients in all of the categoties listed above!!

Paddy Deighan, J.D. Ph.D http://www.medicalandspaconsulting.com

It Must Be Christmas: A Rare Example of the Parties Working Together

I do a lot of work with Russia and Ukraine...even real estate work, but mostly scientific and business projects. I work with some senior members of Vladimir Putin's cabinet. It is always interesting to hear their impression of events that happen here. However, I discovered a Congressional House bill that was passed by House and then the Senate and signed by President Obama this month. The House authored the bill and the Senate made few changes and Obama made no changes. Yes, Veronika, there is a Santa Claus after all. The parties can work together. It was refered to as the Magnitsky bill. It was named after a Russian lawyer who exposed widespread corruption in Russian business. He was jailed and then mysteriously perished just prior to his release from prison because he was not brought to trial within one year as required by Russian law. The bill mandated that those responsible for the human rights atrocities that were committed against Magnitsky woud be denied access to the USA and they could no longer do business with the USA. The bill was opposed by Russian authorities. However, the bill effectively repealed the Jackson- Vanek amendment which affected trade with non economic market countries (i.e. Eastern Blcok countries). Jackson-Vanek was signed in 1974 during the height of trade relations difficulties with the former Soviet Union. The new bill normalizes business relations with Russia, Moldova and other former Eastern block countries so it appears to be a good thing....but more importantly, it indicates that the parties are capable of working together. It would be truly a Christmas dream for the press to write stories like this once in awhile....

Sergei Magnitsky Paddy Deighan J.D. Ph.D http://www.medicalandspaconsulting.com

The Healthy Way to Enjoy the Flavors of Christmas

Many of us that maintain a healthy lifestyle are left with either indulging in the decadent tastes of the Christmas season, or felling left out because there are no healthy alternatives. That has changed!! Well, there is one way that I have found that really helps. Celestial Seasons makes a variety of Christmas cookie teas. They not only taste like the cookies they mimic, but they smell like them too!! The whole house can smell like Christmas sugar cookies by brewing this tea: Celestial Seasons Sugar Cookie Sleigh Ride Tea . There are many great flavors such as ginger bread and candy cane too. If Starbucks is more to your liking then try Starbucks Christmas Blends So, if you are trying to watch your calories but you want to enjoy the flavors of Christmas, these teas are the ticket. Disclaimer: This is not a paid endorsement for Celestial Seasons LOL

Paddy Deighan J.D. Ph.D http://www.homesavers.pro

Bank of America and Wells Fargo Weigh in on Housing Recovery

There are many “experts” that weigh in on the housing market recovery. All purport to be “experts” and their opinions are always based on recognized economic theory. Yet, the experts can never agree on the status of the housing market. My personal view is the fundamentals for recovery are very poor: too many homes with negative equity, high unemployment, huge shadow inventory, and tight lending. I do not see any scenario in which these factors support any semblance of a housing recovery. However, it is interesting to note the opinions of Wells Fargo and Bank of America. Both banks recently released statements describing how they “feel” about the state of the housing market. Their take on the situation is interesting. Wells Fargo optimistically announced that of all the economic sectors out there, housing remained “essentially unshaken” despite fiscal cliff worries. No word on whether or not that “unshaken” aspect was due to the fact housing is pretty near bottom in most areas of the country. The bank also noted that it felt reasonably good about housing because the Fed “appears to be banking on a housing recovery.” Wells Fargo may well also feel good about housing because it owns the lion’s share of mortgages in the country right now. The bank predicted that property would start appreciating slowly (“between 2.5 and three percent per year”) starting in 2013. Bank of America’s CEO Brian Moynihan was not quite so certain about the state of the market. He warned that not only might it be possible that homeownership is not actually for everyone, but that conventional lending might actually be hurting the market rather than helping. Moynihan pointed out that household income volatility has risen 30 percent since the 1970’s, adding that “a 30-year mortgage does not provide flexibility in some cases” and speculating that homeownership might not be a good option for many Americans at this time. He also said that there “is no practical alternative to government participation [in the housing market] at this time,” adding that a federal exit is probably “a decade or two in transition” if it happens at all. Paddy Deighan J.D. Ph.D http://www.homesavers.pro

Another SEO and Marketing Expertise Opportunity from Zintro!!

I know that we are inundated on a daily basis with SEO opportunities and opportunities to market our particular area of expertise. It is difficult to know which ones are out best options. Today, I discovered one that looks promising and it is early enough to get a strategic opportunity with them. The opportunity is from Zintro.com . It only took a few moments to complete a profile. An hour after I enrolled, I received a message on LinkedIn . The referral was from a very good contact with an immediate need for services that I render. The agent that contacted me was very relieved and I was obviously happy too. So it seems that Zintro is a worthy new option for many of us. I suppose in these days of multi-level marketing and skepticism, I should disclose that I do not receive anything for mentioning them!! LOL I do not receive bonus points, coupons for a free oven mitt or even a personalized eyeglass case from a referral to them!! One of the things that I liked about the website is that there are unlimited opportunities to describe your area of expertise to maximize your exposure. You can literally fill in the fields with anything that you want and that enables you to focus upon a geographical area for example. Many opportunities such as this try and push you into pre-defined categories via a drop down menu. Zintro must have decent SEO opportunity – at least with LinkedIn because I received the referral within an hour of uploading my profile. It is a goal for many of us to optimize our time spent on SEO, Social networking and online marketing. It may make sense to give Zintro a try. I already received a great referral and I hope that you do too!! Good luck, Merry Christmas and Happy New Year!! Paddy Deighan J.D. Ph.D http://www.medicalandspaconsulting.com

Update on Aesthetic Medical Devices

It never ceases to amaze me how many medical products are marketed for use to the non-medical market. There are so many skin care products making outrageous claims and product manufacturers making claims about their devices and all the while, marketing them to people who cannot legally perform services with the device. This problem is more prevalent today than ever before and this is counter intuitive since there has never been more regulation in the health industry and the FDA has stepped up compliance.

I have previously written about skin care products that claim to alter and repair DNA (this is really funny because it is so outrageous); other products that claim to treat rosacea (even though when you read the package insert it refers to treating “redness”) and devices that are marketed to the aesthetic market when they are being offered to treat medical conditions. Sometimes the problem is that the device is a medical device being offered to non-medical markets. Other times the problem is that the device is treating medical conditions or the use of the device is such that it constitutes the practice of medicine.

I was reading Day Spa magazine today and I ran across an advertisement that I have seen for MANY years. It was for the Lamprobe. Interestingly enough, I met the owner about ten years ago and asked how he is marketing the device to the non-medical market. He had an unsatisfactory answer. It is not my intention to malign any particular product, but this one typifies the problem.

The Lamprobe advertises that it treats skin tags, broken capillaries, cholesterol deposits, cherry angiomas, fibromas, spider nevi, clogged pores and milia. Very interesting. An esthetician can treat NONE of these proposed uses. How can this product be ethically marketed to the non-medical aesthetic market when the user cannot legally perform the treatments? Virtually all of these proposed uses are outside the scope of license of an esthetician and they are clearly and squarely within the parameters of medicine.

Paddy Deighan JD PhD
http://www.medicalandspaconsulting.com