Professional Staff in a Spa..Employee or Independent Contractor: An Analysis

The employee/Independent contractor scenario in spas and medical spas is very complex. The determination of whether a professional staff member is an employee or independent contractor is not easy to address. One thing that IS clear; the agreement that may be in effect is not the most significant issue. You can cal a professional staff member whatever you want to call them in an agreement, but this does nt control the ultimate determination.

Many owners and professional staff want to be independent contractors but the reality is in many cases, the relationship is not sustainable and the Internal Revenue Service has been looking at the spa industry more closely (possibly due in large part to tipping structures, but they are looking at the industry). The Service has been looking at many “tip” based businesses such as the taxi industry, restaurants and salons and spas.

The IRS has ruled sometimes that an independent contractor was really an employee because the business supplied TOWELS and LINEN! WOW!

A fundamental approach will be based on two key aspects of the relationship: 1. "control" over the professional staff members hours and days of service, and 2. requirement to utilize certain product lines or practice policies and protocols for certain procedures.

These are not easy issues to address because there are conflicting issues and goals. On one hand, the spa needs staff to be available during operational hours. It would be problematic to allow professional staff to decide the days and hours of service. However, providing schedule is a strong element of “control” over the staff member and this tends to be an employment situation.

The second issue is no less problematic.  A professional staff member may support a certain product line that is not offered by the facility. He or she may have a different protocol for a procedure.  The professional staff member may have his or her own protocols for a procedure – even something as seemingly straight forward as micro-dermasbrasion.  An ancillary concern is when there is a mixture of employees and contractors. The contractors may have more freedom to perform services and procedures and they deem appropriate and this can cause staff problems.

I address many such issues every day and please see my websitehttp://www.medicalandspaconsulting.com

Paddy Deighan J.D. Ph.D

http://www.medicalandspaconsulting.com

Awesome Quote from History

I am frequently astounded that quotes from history...quotes that may have been made hundreds of years ago, are still true today (if not truer today). I was watching a history program on late night cable and there was a quote from Thomas Jefferson that rally caught my attention.  Mr. Jefferson stated: “My reading of history convinces me that most bad government results from too much government.” 

How did he know this type of thing? How could they be so acutely aware of the affect of anything on the future. I suppose that some things are fundmanetal and apparently, Mr Jerfferson stated this after reading history. Perhaps we all need to read a little more history.

Sooooo, I decided to read a few more quotes from Mr. Jefferson since has many quotes as they pertain to government and because I have had a fascination about him since graduate school at WIlliam and Mary.  He was a tall man yet his desk at William and Mary is tiny!!!! I always wanted to try and sit in it (it is roped off of course)!!!

Paddy Deighan J.D. Ph.D

http://www.medicalandspaconsulting.com

The Line Between Medical and Aesthetic Procedures: What Can an Esthetician do?

I am frequently asked to comment on the distinction between what is medical and what is aesthetic (non-medical)....the lines are blurry but in my opinion, they are being violated on a daily basis. The practice of medicine is relatively easy to define....it is the diagnosis OR treatment of a medical condition.  Good, bad or indifferent, acne, rosacea, eczema are medical conditions. Some things may not be as clear...for example, treating "razor bumps" MAY not be medical, but on the other hand, those "razor bumps" are follicultis barbae and then they would be medical. Frustrating...I know.

Additionally, the next level of analysis would be whether any medical device or product is being utilized in the treatment and of so, what federal classification is the device. Virtually all aesthetic lasers AND IPLs are Class II or Class IIb medical devices and they have to be owned and operated by licensed physicians (not RNs). Physicians may, in certain circumstances, delegate "operation" (but not ownership) to other individuals.

Many products are medical...Botox Cosmetic is a prescription drug...100% medical. The dermal fillers (Restylane for example) are all medical PRODUCTS (not a drug). They are still 100% medical but for a different reason.

In laser, you can look at two different types of scenarios...let's use laser hair removal and the treatment of leg veins.  Laser hair removal is NOT a medical procedure. However, if the patient is hirsute because of poly cystic ovary syndrome (PCOS), then it IS medical.  In this situation the treatment may not be medical but the device IS medical. Hence, laser hair removal IS medical.

Treatment of leg veins...this is both a medical treatment and a medical device. Two reasons not to perform this service.

With peels, it gets REALLY complex...one analysis would be to look at FDA guidelines. In 1996 the FDA concluded that "medical" is a product that penetrated the epi-dermal/dermal junction. They concluded that a 30% glycolic treatment achieves this. Prior to 1996, they mandated that a 40% glycolic solution achieved this. But what 30% glycolic? pure 30%, neutralized or buffered 30%?...remain unanswered. Soooo, if you utilize a 40% glycolic solution but you know that it is neutralized or buffered, then you are probably OK.

Jessner's peels and most TCA peels are mid-to high level strength peels and they are medical. Sal acid is non medical unless in high strengths....hydro quinones are non medical if they are under 2%...we could go on for hours...topical anesthetics can be medical or non medical too...depending upon the strength and formulation (this is actually a HUGE issue)

The problem is that regulation comes in the form of....state statutes, state and federal case law, federal mandate (FDA, FTC), state boards of medicine, cosmetology and nursing, Attorney General reports and cases...WHEW. There is no ONE place to look!

Recently, there was a discussion and an esthetician commented to me that she contacted her state board in NH. They said that as long as she was certified, it was OK for her to perform the procedure (I do not recall the specific procedure, but on its face, it was medical ...blade or syringe was utilized if I recall). That may have been true by NH board purposes, but federal law would disagree and Federal law trumps state law.

Paddy Deighan J.D. Ph.D

http://www.medicalandspaconsulting.com

Important HIPAA Lawsuit Update

Although HIPAA does not create a private cause of action, a recent Indiana Superior Court jury verdict indicates that HIPAA could still play an important role in private causes of action in state court based on negligence and professional liability as it relates to confidentiality. On July 26, a jury in Marion County, Indiana awarded $1.44 million to a Walgreens customer based on allegations that the customer’s pharmacist accessed, reviewed, and shared the customer’s prescription history with others who then used the information to intimidate and harass the customer. At the heart of the case was a tangled love triangle in which the pharmacist’s husband had previously been romantically involved with the customer, resulting in the birth of a child. When the pharmacist learned of the relationship, she allegedly accessed the customer’s prescription information and shared it with her husband, who then used the information to intimidate the customer when she began demanding child support payments.

The customer filed suit against both the pharmacist and Walgreens in Indiana Superior Court, claiming that both parties had breached their statutory and common law duties of confidentiality and privacy. The complaint also included claims of negligence, invasion of privacy, and publication of private facts against the pharmacist and claims of negligent training, supervision, and retention against Walgreens for continuing to employ the pharmacist even after discovering the incident. The Court granted Walgreens’ Motion for Summary Judgment on the negligent training claim

At trial, Plaintiff argued that even though HIPAA did not create a private cause of action, it still defined the standard of care for a pharmacist’s duty of confidentiality and privacy to Plaintiff’s health information. Thus, according to Plaintiff, because the pharmacist’s actions violated HIPAA, the pharmacist had breached the standard of care and should therefore be held liable for the harm caused to Plaintiff. Additionally, because the pharmacist had acted within the scope of her employment, Plaintiff argued that Walgreens was also liable for the pharmacist’s actions. After a four day trial, the jury agreed on both points, awarding $1.44 million in damages to Plaintiff. Walgreens intends to appeal the verdict.

This is not the first case in which HIPAA has been the centerpiece of a private cause of action, but it does appear to be the first case resulting in a substantial jury verdict against a provider using HIPAA as the basis for the standard of care. Whether and to what extent HIPAA can be used to establish the standard of care in a professional liability, negligence, or other breach of professional duty case will be dependent on state tort law, and the outcome of this case on appeal is unpredictable. Nonetheless, as HIPAA continues to receive attention from trial lawyers seeking to establish the standard of care in negligence and professional liability cases involving the improper disclosure of health information, health care providers must be aware that, depending on the law of the state in which they are licensed, their potential liability for HIPAA violations could extend beyond Civil Monetary Penalties.

Paddy Deighan J.D. Ph.D

http://www.medicalandspaconsulting.com

Genetics Play a Role in Stretch Marks: Treatment Update

23andMe, a leading consumer oriented personal genetics company, has conducted the first genetic study of striae distensae (stretch marks). Researchers at the company identified four genetic markers significantly associated with the development of stretch marks that inform why some individuals are more susceptible to the skin condition.

Estimates of the prevalence of stretch marks range from 50-80 percent.  The exact causes of stretch marks are still widely unknown. Many factors, including excessive skin distension (during pregnancy, growth spurts, rapid weight gain), prolonged exposure to cortisol and genetics are thought to play a role.

Popular treatments, including topical creams and laser treatment often focus on stimulating collagen production to decrease the appearance of stretch marks. The strong association between (the breakdown) of elastin and stretch marks discovered through this research offers an opportunity to improve methods to prevent and treat stretch marks. However these treatments yield little visible results and patient satisfaction is exceedingly low with these modalities.  Cocoa butter?? Why bother!

There are effective treatments on the horizon and we will be discussing them in detail. 

"To date, no genetic variants were known to be associated with isolated stretch marks that affect the general public," said Joyce Tung, Ph.D., author and 23andMe Director of Research. "Through this first of its kind study, we've identified new genetic associations that can provide deeper insights into the root causes of stretch marks, and look forward to continuing research in this space. One intriguing area for further study is the potential effect of genes associated with obesity on the development of stretch marks, both independent of and via changes in Body Mass Index. Replicating this work in a more precisely phenotyped population would also be a logical next step."

23andMe conducted a genome-wide association analysis across 33,930 unrelated 23andMe customers of European descent; within the sample there were a total of 13,930 cases and 20,862 controls. Because loose skin is a symptom of syndromes caused by deletion or loss-of-function mutations in elastin, it is likely that variations in the elastic fiber component of the skin extracellular matrix contribute to the development of stretch marks. The expression of collagens, elastin and fibronectin is also decreased in striae, which could be linked to the reorganization and overall loss of elastic fibers in skin affected by stretch marks.

Paddy Deighan, J.D. Ph.D

http://www.medicalandspaconsulting.com

An Important Update on Facebook Privacy

I have never been a particular fan of Facebook. They do not respect privacy and they allow politics to interfere in the social networking sphere and there is no place for this in their reality.. They are allowed to do things with information that you are not allowed to do…adding to my disdain for them. True, they have SOME usefulness and hence, Facebook must be tolerated to some degree. You have all seen the Facebook ads that show us an image of one of our friends and notify us that this particular friend likes some particular brand or product.  However, were you aware that these images could not only be used to endorse products that you have already “liked,” but also those that have nothing whatsoever to do with you AND without your providing any permission other than simply using Facebook?

Facebook recently settled a class action lawsuit regarding this practice. The settlement and resulting privacy-policy “clarifications” actually just make the practice legitimate. According to Facebook’s revised privacy policy, “you give us permission to use your name, profile picture, content, and information in connection with commercial, sponsored, or related content…served or enhanced by us…without any compensation to you.” WHAT????? This means Facebook can use your images basically anywhere, at any time, and for any reason.

The class-action lawsuit was brought by a man whose wife’s image was used in this manner to advertise a “hot singles” service, but despite the fact that Facebook ultimately settled, the judge who approved the settlement even said that “it is far from clear [that the plaintiffs] could ever have shown they were actually harmed in any meaningful way.” The only way to opt out of this term of use is to quit Facebook completely. Facebook has also received criticism lately for another relatively new feature that takes facial recognition to a new level in order to suggest tagging options for pictures. Not to mention that htis comes from a paragon of privacy protection, ABC News LOL Be forewarned!!!

Paddy Deighan J.D. Ph.D

http://medicalandspaconsulting.com

Non Medical Personnel Operating Lasers

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. 

Just because a product is marketed to you, does not mean that you are legally permitted to use the product or servoce. The laser companies would gladly sell a laser to my dog Stoli if he would pony up the money!!

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

Connecticut Passes New Medical Spa Regulations

Connecticut is another in a series of states that has taken action in regard to the regulation of medical spas.  The new legislation in Connecticut seems fair and a well thought out effort to protect consumers in the state.

Many within the various related industries, such as aesthetics, believe that the regulation of medical spa procedures it’s a turf battle waged by physicians who are trying to protect their exclusive right to perform cosmetic medical procedures.  However, this law seems appropriate and my vast experience as a consultant to state medical boards and boards of cosmetology is that this type of regulation is borne out of a desire to legitimately protect citizens of a state.

Medical spas in Connecticut that offer cosmetic medical procedures must have an acting medical director who is a state-licensed physician. Bill SB-1067, which goes into effect on October 1, 2013, was passed by the state’s legislature on June 5, 2013. It states that any medical spa that offers procedures defined under the state’s sales tax laws as “cosmetic medical procedures” employ or contract with a medical director. An MD, PA, APRN or RN may perform the procedures. If a PA, APRN or RN is performing the treatment, he or she must be acting under a physician’s supervision and control. In addition, the facility must post notice of the name and specialty of the medical director, and he or she must perform an initial physical assessment of the patient before the procedure is performed. Violators are subject to fines of up to $500 per day while the violation continues.

In my opinion, there will be more new laws such as this one as state’s wrestle with this growing problem.  My only question in regard to this law is whether the nurses have to be employed by the physician. This is a growing issue.

If you wish to view a synopsis of this new law, log into http://www.cga.ct.gov/2013/BA/2013SB-01067-R01-BA.htm

Please do not forget to "like our page on Facebook! https://www.facebook.com/LawOfficesOfPaddyDeighan

Paddy Deighan J.D. Ph.D

http://www.medicalandspaconsulting.com

SEO basics as Google Implements Penguin 2.0 Part II

Many SEO enthusiasts are in a state of panic over announced changed to Google search engine algorithms. Google is gradually implementing Penguin 2.0 and many are concerned that there SEO efforts will be adversely affected.

I decided to write some SEO basics that pertain to most search engine since Google isn't the only one ya know!! BING has made significant strides lately.

1. Check the Popularity of Keywords

In order to obtain traffic from keyword searches on the major search engines like Google, BING and Yahoo!, you need to be writing about a topic that people want to read about and are actively looking for information about. One of the easiest ways to get a basic idea of what people are looking for online is to check the popularity of keyword searches on websites like Wordtracker, Google Trends or the Yahoo! Buzz Index. These will each give you a clear indication of the keywords that are being searched and you can check many different phrases.

2. Select Specific and Relevant Keywords

It is prudent to select one keyword phrase per page then optimize that page to that keyword phrase. Keywords should be relevant to the overall content of your page. Furthermore, choose specific keywords that are more likely to give you a better search results ranking than a broad term would. For example, consider how many sites use the keyword phrase of "ancient pottery." The competition for ranking using that keyword is likely to be tough. If you choose a more specific keyword like "13^th Century Chinese Pottery," the competition is a lot easier.

3. Select a Keyword Phrase of 2 or 3 Words

Statistics show that nearly 60% of keyword searches include 2 or 3 keywords. Accordingly, optimize your pages for searches on keyword phrases of 2 or 3 words to drive the biggest results.

4. Use Your Keyword Phrase in Your Title

Once you select the keyword phrase you plan to optimize your page for, make sure you use that phrase in the title of your blog post (or web page).

5. Use Your Keyword Phrase in Your Subtitle and Headlines

Utilizing subtitles and section headlines not only makes the blog more visually appealing on a text heavy computer screen, but it also gives you additional opportunities to use your keyword phrase.

Paddy Deighan JD Ph.D

http://www.homesavers.pro

SEO Basics as Google Implements Penguin 2.0

Many SEO enthusiasts are in a state of panic over announced changed to Google search engine algorithms. Google is gradually implementing Penguin 2.0 and many are concerned that there SEO efforts will be adversely affected.

I decided to write some SEO basics that pertain to most search engine since Google isn't the only one ya know!! BING has made significant strides lately.

1. Check the Popularity of Keywords

In order to obtain traffic from keyword searches on the major search engines like Google, BING and Yahoo!, you need to be writing about a topic that people want to read about and are actively looking for information about. One of the easiest ways to get a basic idea of what people are looking for online is to check the popularity of keyword searches on websites like Wordtracker, Google Trends or the Yahoo! Buzz Index. These will each give you a clear indication of the keywords that are being searched and you can check many different phrases.

2. Select Specific and Relevant Keywords

It is prudent to select one keyword phrase per page then optimize that page to that keyword phrase. Keywords should be relevant to the overall content of your page. Furthermore, choose specific keywords that are more likely to give you a better search results ranking than a broad term would. For example, consider how many sites use the keyword phrase of "ancient pottery." The competition for ranking using that keyword is likely to be tough. If you choose a more specific keyword like "13^th Century Chinese Pottery," the competition is a lot easier.

3. Select a Keyword Phrase of 2 or 3 Words

Statistics show that nearly 60% of keyword searches include 2 or 3 keywords. Accordingly, optimize your pages for searches on keyword phrases of 2 or 3 words to drive the biggest results.

4. Use Your Keyword Phrase in Your Title

Once you select the keyword phrase you plan to optimize your page for, make sure you use that phrase in the title of your blog post (or web page).

5. Use Your Keyword Phrase in Your Subtitle and Headlines

Utilizing subtitles and section headlines not only makes the blog more visually appealing on a text heavy computer screen, but it also gives you additional opportunities to use your keyword phrase.

Paddy Deighan J.D. Ph.D

http://www.medicalandspaconsulting.com

Are We living in America or a Land of No Freedom of Choice?

Virtually every day, there is a story about something that we cannot eat or drink...or DRIVE. I am a car fanatic and when I travel to Europe, I see all of the fuel efficient and cool cars that we cannot have because of our burdensome regulations - Citroen, Alfa Romeo, Peugeot, Renault (most are French, perhaps THAT explains it - LOL), Opel (owned by GM) and Ford of Europe and Australia (will not export many types of cars to the US market). The Ford Falcon is still being produced...but not for use in the USA. Anyway, I read on the internet today that NYC has now banned the delivery of 2 liter Coca Cola with PIZZA delivery. Hey, Bloomberg, guess what ya clueless bureaucrat, PIZZA ain't real healthy either! Why don't you ban delivery of that too? Eateries are now banned from serving soft drinks in a size larger than SIXTEEN ounces in NYC. Bloomberg has taken action against salt, sugar, trans fat, smoking and baby formula. While these may be noble causes, this is AMERICA and we are allowed to be unhealthy. We are allowed to be a lot of things and it is not the government’s role to regulate BEHAVIOR!! Does this idiot think that DIET Coca Cola is healthy??? Many suggest that is may be unhealthier than regular Coca Cola…but in any event, who are these bureaucrats that keep ramming this stuff down our throats (pun intended). THIS IS AMERICA, and AMERICA is SUPPOSED to be synonymous with “freedom of choice”. Coca Cola has Ryan Seacrest as a spokesperson...is wholesome, pure Ryan Seacrest advocating bad behavior? Would he be banned from drinking it in NYC? I have stated it before and I will state it again…it is not the politicians’ fault that these things happen; it is OUR collective fault for electing these well-intentioned, but delusional idiots. Nothing will change until we have a better quality of politician…and who would want to run the way the media eviscerates anyone short of Mother Teresa (God rest her soul). Oops, I said “God”…now the media will eviscerate me for writing a religious blog… Paddy Deighan J.D. Ph.D http://www.medicalandspaconsulting.com

A Colossal Waste of Tax Payer Dollars..Wisconsin Monkey Study

I was minding my own business working out. The TV was on HLN and I was watching a Jane Velez piece on University of Wisconsin-Madison study. In these experiments, baby monkeys are separated from their mothers right after birth and later subjected to scary tests to provoke fear and anxiety. The monkeys are then killed and dissected and their brains are studied. Wanna know the truly scary part. WE ARE PAYING FOR THIS!!! It is a federally funded study!!! As a scientist, let me make the conclusion for these hapless researchers. Taking a baby monkey (or any animal) away from its mother at birth and then subjecting it to fear will cause what reaction???? Hmmm, lets cypher on this one (a la Jethro Bodine)......Hey, I got it!!! HOW 'BOUT NOT A GOOD REACTION!!!! THERE, you idiots just saved millions of taxpayer dollars. Kinda reminds me of when I was asked to comment on a Michigan State study. They spent one a and a half years and millions of taxpayer dollars studying the effect of obesity upon diabetics in the Puerto Rican community. My response: "Ladies and gentlemen than you for coming,,,,as you know, Michigan State spent millions of dollars and one and a half years studying the effects of obesity on diabetics in the Puerto Rican community...I will summarize the results: "IT DOESN'T HELP" Thank you all for coming!!! LOL A doctor in NY still has not spoken to me years after that presentation!! Paddy Deighan J.D. Ph.D http://www.medicalandspaconsulting.com

Having a Hard Time Understanding This One

Lance Armstronmg is all over the news...what he did was a disgrace to himself and our nation. However, he has done a lot of good for a lot of people. That part is genuine and true. Here is the part that I do not understand. The United States Postal Service is running in the red to the tune of BILLIONS of dollars per year, YET, they have spent $30 million sponsoring Armstrong's racing team??? WHOA!! What benefit is there to the USPS in sponsoring a cycling team?? How about NONE, zero, natta?? The USPS closes 10% of its locations during the past two years yet they are sponsoring a CYCLING team?? While I am on the subject, they closed 10% of their locations but did not lay off ONE person!!!! Small wonder they are running in the red!!! Paddy Deighan J.D. Ph.D http://www.medicalandspaconsulting.com

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