Not going under

In July, Windell Boutte, a dermatologist, filed an agreement with the Georgia Composite Medical Board. In the consent order, Boutte's license to practice medicine in the state is suspended indefinitely – although she can petition to have the suspension lifted in two-and-a-half years – and she cannot use the title "doctor" or engage in the practice of medicine during the suspension.

The order follows seven recorded instances of questionable treatment of patients during a four-year period. At least 10 patients sued Boutte for complications, and news reports have speculated that another 100 former patients might yet pursue litigation. Boutte became a national story and was dubbed the "dancing doctor" three months earlier, after YouTube videos (since deleted) showed her singing new words to popular songs and dancing with surgical instruments in both hands while leaning over patients' half-covered bodies.

"She has lawsuits pending," says ASPS member Joshua Zuckerman, MD, New York. "She has hurt people. The state of Georgia suspended her license, but what's going to be the next step? I'm not optimistic. I think she'll go somewhere else. There will be somebody who will give her a license, and she'll be able to continue doing what she does."

The former "Dr." Boutte's case is the nexus of two issues of great concern to the specialty – patient safety first and foremost, and the fact that doctors not certified by the American Board of Medical Specialties (ABMS) and non-ACGME-trained physicians are doing the work that plastic surgeons have been trained and certified to do.

Scope of practice is not a new concern to plastic surgeons, but the question must be asked of lawmakers and state regulators: Do they know the ramifications of letting other specialties perform these procedures?

"As hesitant as I am to speak out in favor of more regulation, this is a case where I think more regulation at a state medical board level is necessary," Dr. Zuckerman says. "When I first looked into this, I was appalled that there was no differentiation between 'medicine' and 'surgery' in licensing requirements, but unfortunately this appears somewhat common at least in states in the Northeast. It seems like common sense, but if you're not a surgeon you shouldn't be able to practice surgery."

A patchwork of regulation

In Georgia, if you're licensed to practice medicine, you're also licensed to practice surgery. Dr. Zuckerman says the same is true in New York, where a medical license specifically states that the licensee may perform "medicine and surgery." The New York Department of Education's licensing requirements define the "practice of medicine" as "diagnosing, treating, operating or prescribing for any human disease, pain, injury, deformity or physical condition" – which includes surgery and is the principal basis upon which one must apply for the license.

"Medical licenses are similarly labeled in New Jersey and Pennsylvania," Dr. Zuckerman notes. "Relevant state laws and regulations governing the state licensing organizations in these states also appear to group medicine and surgery together and lack specific licensing requirements for surgery."

According to The Policy Surveillance Program, an interactive map that breaks down which states have facility and/or operational requirements on non-hospital facilities that provide office-based surgery, procedures or anesthesia (available to view at lawatlas.org), up to 32 states have some sort of regulation. Unfortunately, many states still don't regulate what constitutes "surgery," and even those that do can have variances in their definitions and enforcement.

It isn't open season across the country, though. In Florida, for example, the Board of Medicine defines office surgery in three levels. Level I office surgery includes procedures where preoperative medications are not required or used, or where anesthesia is local, topical or none – minor procedures such as excision of skin lesions, moles, warts, etc., liposuction involving the removal of less than 4,000cc of supernatant fat or incisions and drainage of superficial abscesses and limited endoscopies; Level II includes those procedures where perioperative medication and sedation are used by any means, making intra and post-op monitoring necessary. Level III surgeries include procedures in which the patient's level of sedation is that of deep sedation and analgesia or general anesthesia.

Training requirements for Level II and III surgery in Florida include documentation of satisfactory completion of training such as such as board certification, or board qualification by an ABMS-approved board or any other board approved by the Board of Medicine. Otherwise, they must be able to demonstrate to the accrediting organization or to the department comparable background, training and experience. Such board certification or comparable background, training and experience must also be directly related to and include the procedure(s) being performed by the physician in the office surgery facility.

ASPS member Jason Rosenberg, MD, former chairman of the Florida Board of Medicine, says the scope-of-practice battles that came across the board's desk during his time there were often more political than relating to bad medicine, procedures, outcomes or practices.

"If you come at it as a plastic surgeon and a member of the Society, of course I want board-certified plastic surgeons doing these procedures," he says. "But other specialties would argue they've trained their members to do it."

Florida has its own set of regulations to ensure that the board isn't restricting practice, according to ASPS member Sarvam TerKonda, MD, who is a current member and past chair of the state's Board of Medicine. "We have the responsibility to ensure that individuals are appropriately trained, but we also must be careful to not inappropriately restrict the individual's right to practice," he says.

Threading that needle can be a challenge. Due to the question of restricting practice in Florida, Dr. TerKonda says it's difficult to rely solely on board certification to show appropriate experience or training within a particular specialty, and unfortunately there's no perfect solution when it comes to measuring an individual's competency. Furthermore, as Dr. Rosenberg points out, sometimes a non-plastic surgeon might have better experience with one particular procedure than a board-certified plastic surgeon.

"Can I tell someone not to do a rhinoplasty when I do breast cancer reconstruction?" he asks. "Breast reconstruction is my practice. I wouldn't want to go do a rhinoplasty right now."

Still, Dr. TerKonda has seen first-hand the results of patients who saw physicians who didn't have the proper training.

"I had a patient who underwent breast augmentation by an oral surgeon and, unfortunately, had complications from that," he recalls. "She referred to the oral surgeon as a plastic surgeon. I said, 'He may have had some training, but he is an oral surgeon by specialty.'"

"Some consumers can be taken aback by that and feel like you're trying to protect yourself," he continues. "You don't want to find fault in another physician – you want to educate the patient on the training that board-certified plastic surgeons complete."

Rising above the din

The problem with that educational effort is that it can often seem like screaming into the void. ASPS directs resources and efforts toward patient-safety and awareness campaigns such as "Do Your Homework" that drive public awareness about the importance of choosing board-certified plastic surgeons (and the efforts by the Plastic Surgery Education Campaign have provided millions of dollars in total advertising value).

The Society recently produced a patient-safety video advertisement that tells the story of a woman's desire to keep her youthful appearance and how she was persuaded to try a new kind of filler from a non-plastic surgeon [https://www.plasticsurgery.org/video-gallery/carols-story-who-to-trust-with-your-plastic-surgery-journey]. Narrated by the actual patient, and featuring pictures and video from her life, she describes the horror felt as she became disfigured by the non-invasive procedure – and in addition to requiring seven reconstructive procedures to find a "new normal," the patient nearly lost her life. The campaign's ad to date has earned 36 million impressions and more than 12 million views.

Still, that messaging can run headfirst into a social media gauntlet where even pretenders appear legitimate. In a June 2018 article in Annals of Plastic Surgery, researchers investigated whether medical students would be able to differentiate – where patients could not – in terms of determining a cosmetic and plastic surgeon's board certification. Four cosmetic and five plastic surgeon websites from one city were selected from a Google search for the following procedures: liposuction, breast augmentation, blepharoplasty, rhytidecotmy and abdominoplasty. More than 50 percent of the medical students had difficulty distinguishing between a cosmetic and plastic surgeon based on the advertisements.

"If it's that difficult for a medical student to differentiate between a credentialed, board-certified plastic surgeon and a practitioner of cosmetic surgery without accredited training, imagine the difficulty for the average patient," says ASPS member Michael Hanemann, Jr., MD, Baton Rouge, La., who worked on the study.

The average patient, more often than not, is getting immediate search results that highlight the physicians who spend the most money for placement on web searches or pinned posts on social media.

"I recently tabulated the Google search results for 'Tummy tuck NYC' and the top posts aren't plastic surgeons." Dr. Zuckerman says. "Three of four top-of-the-page advertisements were from non-plastic surgeons. They're general surgeons and others. There's not anything wrong with general surgery, but it shows that Google provides little to no regulation of who may advertise cosmetic surgery services."

Instagram in particular has posed problems as it is a popular channel for both plastic surgeons and non-plastic surgeons alike and there are several instances of general surgeons or non-board certified plastic surgeons incorrectly referring to themselves as board-certified cosmetic or plastic surgeons.

"There should be onus on the corporate entities through which we ply our services," he continues. "Social media or Google – they take special care to make sure I'm not showing a nipple, but at the same time, a random internal medicine doc can advertise as an expert in liposuction and nobody will say anything."

ASPS Vice President of Health Policy/Advocacy Gregory Greco, DO, Red Bank, N.J., agrees and adds the onus extends beyond internet and social media companies to some manufacturers that sell medical devices to non-board-certified physicians.

"Practitioners wouldn't be doing breast augmentations if they couldn't buy devices," he says. "Yes, they are manufacturers and out to sell as much product as possible, but there can be problems when you sell to anyone who has a medical license."

Legislative battles

There's no easy answer when it comes to battling scope-of-practice issues, although many plastic surgeons with whom PSN spoke agree that as tedious as state-by-state advocacy for improved regulation might be, it's a necessary route to take.

"In an ideal world, it would come from the top somehow, but the way medical licensure is structured in the United States, it's state by state," Dr. Zuckerman says. "I don't think it will ever be anything but a state-by-state matter."

ASPS earlier this year began working the New York State Society of Plastic Surgeons (NYSSPS) to introduce legislation that would restrict the use of the term "board certified." The legislation – which would restrict the use of "board certified" in advertising to physicians who have achieve board certification from an ABMS member board, or a board that has been deemed equivalent – was modeled after language developed by a coalition of stakeholders at the national level.

Following introduction of the bill, ASPS helped coordinate negotiations between partners in New York and national affiliates, in order to reach consensus on an amendment in order to best protect ABMS board-certification. ASPS and NYSSPS then submitted letters to the state Senate sponsor and the committee of jurisdiction in attempts to incorporate the Society's preferred amendment. Ultimately, the legislation failed to advance out of committee – although there's now a foundation for reintroduction and a corresponding advocacy push during the next session.

Louisiana's plastic surgeons found success on a similar issue last year when the state Senate Health and Welfare Committee voted to defer a bill that would have rendered the term "board certified" meaningless. The bill was sparked by a diplomate of the American Board of Cosmetic Surgery (ABCS) – which is not an ABMS member board and does not have an ACGME training program – as a way to create a pathway to equivalency recognition for non-ABMS certifying boards. The proposed rule mirrored an effort passed by the Texas Board of Medical Examiners in 2013, which permits diplomates of the ABCS to advertise as "board certified."

Although Louisiana helped the plastic surgeons last year, Dr. Hanemann notes that an effort to secure the issue further this year stalled. The Louisiana State Board of Medical Examiners had approached the same committee with a request to line-item delete the provision in the state's current truth-in-advertising law that gives the board the authority to approve non-ABMS boards for advertising purposes.

"The LSBME's bill passed the House, but the cosmetic surgeons hired five lobbyists, including the lobbyist for the Louisiana Oil and Gas Association, who objected to it and spread misinformation throughout the Senate concurrence hearing," Dr. Hanemann says. "Ultimately, the bill was returned to the calendar and not brought back up."

The good news is that the current truth-in-advertising law remains on the Louisiana books, which protects board certification, but the efforts to protect plastic surgeons' scope of practice in state legislatures are often hard-fought and brought to frustrating ends. Dr. Greco says there's a simple reason for that.

"Politicians don't take kindly to turf battles," he says. "What's happening in the legislative chambers is that every mid-level practitioner is asking for a scope-of-practice expansion. Any place where there's a medical need or an underserved area, the physicians, the nurse practitioners, the PAs – everyone is out there telling the legislators, 'Look, we can do the job and take care of the population.' They may not necessarily understand the difference."

He should know. Dr. Greco was part of an effort in New Jersey eight years ago to limit the kind of surgical work that could be done legally in an office setting. He says the plastic surgeons were at the table with dermatologists – all parties in agreement – that set a limit of 500 cc's of local anesthetic for liposuction as the limit of what could be administered in an office. He recalls thinking it was odd when the initial draft of the bill didn't meet with any pushback, but when it came time to advance it in legislative hearings, the efforts ground to a halt.

"The dermatologists put up the biggest fight," he says. "Even though we sat at the table together, they came in with the opposition and the bill just died."

Keeping up the fight

All added up, the fact that there's no clear path to reclaiming procedures that fall within the specialty's scope of practice can appear disheartening. It doesn't mean that any plastic surgeon with whom PSN spoke is ready to give up the fight – at least on a particular front.

"Going after device manufacturers won't be a battle we can fight and I don't think we win this in the legislative chambers," Dr. Greco says. "I think we have to indirectly fight by policing what's going on out there and that's being able and more than capable of turning in people performing surgery in unaccredited facilities because they could never get accredited as they aren't surgeons.

"We have to rely on educating the consumer. We should always fight scope-of-practice expansions when it looks like it will fall in the hands of people who aren't trained."

Dr. Hanemann agrees that patient education is paramount, but he also believes that if state societies can continue networking, the front on the legislative side will strengthen.

"The fight to preserve the legitimacy of board certification occurs at the state level," he says. "State plastic surgery societies can save valuable time and energy by working together and learning from each other's successes and failures. In Louisiana, by educating our physician colleagues on this issue, we have gathered the support of the State Medical Society, the State Medical Board, and of multiple state physician specialty organizations, including orthopedics, dermatology, surgery, neurosurgery and family practice.

"We must continue to make the board certification fight a top priority in order to protect our patients and our profession," he adds.

After the Louisiana Society of Plastic Surgeons helped secure the future of "board-certified" in the state last year, Dr. Hanemann told PSN it's always preferable to be in a position of preventing fires rather than fighting them. Dr. Zuckerman says on the scope-of-practice front, that train might have left the station – but he agrees that he's not willing to give up the fight.

"We can complain all we want about unqualified practitioners doing some of these procedures, but we let this happen a long time ago," Dr. Zuckerman says. "We were not vocal as specialists going back 10, 20, even 30 years in getting regulation enacted. As a group of specialists, we're relatively small compared to the greater medical community and the greater group of people who want to be doing liposuction or performing cosmetic surgical procedures or using injectables or lasers.

"At the end of the day, board certification exists for a reason," he continues. "Residency training exists for a reason. The principle behind any oral board exam is to make sure you have the proper decision-making and contingency plans in place, the proper training, so when something doesn't go according to plan, you know how to do something safely. Otherwise, we end up with another tragedy."