Michael J. Sacopulos

Michael J. Sacopulos

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Q: I have heard some discussion that some states are only allowing board-certified surgeons or dermatologists to perform cosmetic medicine. Is this true, and is it legal?

A: For many years, all licensed physicians in the United States and territories could perform cosmetic surgery. That changed on September 16, 2011. The US First Circuit Court of Appeals court upheld the decision to limit the practice of cosmetic medicine to physicians with board certification in plastic surgery or dermatology. This decision stems from the case Gonzalez-Droz v Gonzalez-Colon.

The Plaintiff in the case, Efrain Gonzalez-Droz, MD, is an obstetrician/gynecologist who began performing cosmetic surgery in 1995. In 2005, the Board of Medicine in Puerto Rico issued a notice restricting the practice of cosmetic surgery to physicians who are board-certified in plastic surgery or dermatology, rendering the majority of Gonzalez-Droz’s practice illegal.

Gonzalez-Droz continued to perform cosmetic procedures, and the Board voted to temporarily suspend his medical license pending a hearing. Gonzalez-Droz moved to California and opened an office there, but also filed a lawsuit in the US District Court for the District of Puerto Rico challenging the regulation as unconstitutional.

After Gonzalez-Droz failed to appear at an administrative hearing, the Board suspended Gonzalez-Droz’ license for 5 years for illegally practicing plastic surgery and imposed a $5,000 fine.

The First Circuit Court of Appeals held it was reasonable for the Board to regulate the practice of cosmetic surgery based on patient safety concerns: “In this case, there is no accredited specialty board for cosmetic medicine, and certification in the closely related fields of plastic surgery and dermatology arguably could be seen as a surrogate. To pass rational basis review, it is enough that the classification falls within the universe of reasonable alternatives that might serve to foster improved patient care and safety. The Regulation achieves this benchmark.”

It remains unclear if other states will follow Puerto Rico’s position on this issue.

Q: I only have a few reviews about my work online and hundreds of patients. I was considering either giving my patients a coupon or a chance to win a prize in a “drawing” for reviewing me on the Internet. Is this legal?

A: Yes, but the review should clearly and conspicuously inform of the circumstances under which the review was obtained. The Federal Trade Commission has rules that apply to this situation, namely Title 16 CFR. ยง 255.5, which states, “When there exists a connection between the endorser and the seller of the advertised product that might materially affect the weight or credibility of the endorsement (ie, the connection is not reasonably expected by the audience), such connection must be fully disclosed.”

Consumers are unlikely to expect that a patient of the physician would be compensated in any way for reviewing their physician. The fact that the patient is anticipating a reward from their physician and may be motivated by financial incentives would likely materially affect the credibility that consumers attach to the review.

Thus, the incentive system should be clearly and conspicuously disclosed to the consumer.

Q: I really appreciate my patients who refer their friends to my office. I have found that word-of-mouth can be the greatest form of advertisement. Should I offer financial incentives to my patients in exchange for recruitment of other patients?

A: The short answer is an emphatic no.

I understand you want to reward those who help you, but the AMA Code of Medical Ethics Opinion 6.021 states, “Physicians should not offer financial incentives or other valuable considerations to patients in exchange for recruitment of other patients. Such incentives can distort the information that patients provide to potential patients, thus distorting the expectations of potential patients and compromising the trust that is the foundation of the patient-physician relationship.”

Physicians should also be aware of federal and state laws that govern incentives for patient referrals. I understand that you are trying to be appreciative and kind, but paying for referrals is not the thing to do.

I am a partner with Sacopulos, Johnson & Sacopulos, in Terre Haute, Ind. My core expertise is in medical malpractice defense and third-party payment disputes, and I serve on the National Counsel for Medical Justice. As PSP’s resident legal expert, I will respond to legal questions you may be facing in your practice. Questions can be submitted by sending an e-mail to [email protected]