Scope of practice fights are never pretty.
But one pitting cosmetic surgeons against plastic surgeons has turned particularly ugly, with charges of medical negligence, anti-competitiveness, and bias flying in both directions during a recent California licensing board meeting, viewable on webcast.
The rift is over whether California members of the American Board of Cosmetic Surgery (ABCS) can advertise themselves as “board certified,” which the Medical Board of California does not currently allow. Physicians can say they specialize in cosmetic procedures such as breast augmentations, hair transplants, and tummy tucks — typically elective and paid for in cash — but they cannot use the magic words “board certified” in the specialty.
That privilege is reserved for those physicians certified by boards that have proven to state regulators that their diplomates are sufficiently “trained and tested” in a way that is — and this is a mouthful — “equivalent” to an American Board of Medical Specialties board or is certified by an association with a postgraduate training program approved by the Accreditation Council for Graduate Medical Education.
But California law allows the board to grant exceptions, and it has done so for fourspecialty boards not meeting the above criteria yet able to prove their certification protocols were equivalent. (These boards govern facial and plastic reconstructive surgery, sleep medicine, pain medicine, and spine surgery.) The medical board had twice before rejected the cosmetic surgeons’ petition, but now the ABCS says it has revised its programs and deserves its own exception.
Saying they’re board certified is critically important, they say, and without that their ability to communicate their proficiencies directly to prospective patients is crippled. Cosmetic providers are not included in insurance plan networks, so they publicize themselves through internet and marketing materials.
But thus far, the cosmetic surgeons’ effort has fallen short, with the board issuing a final denial of their petition in a Dec. 18 vote.
Right to free speech
“Why is there such opposition to the ABCS?”, its president, Alex Sobel, DO, rhetorically asked members of the state board. “These are elective surgical procedures and patients see providers directly rather than by a referral network.”
“What California is doing with its restricted position is not allowing this specialty and board organization to grow,” he continued, calling it a wrongful restriction of commercial free speech, and a longstanding “turf battle” between plastic and cosmetic surgeons.
He and his colleagues submitted hundreds of pages to document the specialty’s strict fellowships and training protocols, and are the only specialty that provides that. Besides, Texas and Oklahoma licensing agencies accept their training as “equivalent,” they said.
But the American Board of Plastic Surgeons, an ABMS-member board, vehemently objected. Testifying in October against the ABCS petition for “board equivalency,” Debra Johnson, MD, former American Society of Plastic Surgeons president and a Sacramento plastic surgeon, hurled a raft of accusations at the ABCS’s training.
“Secret shopper”
For starters, she said, her organization engaged in “secret shopping” of a fellowship program to inquire whether the fellow in training or the doctor would do a breast augmentation procedure on a patient. An emailed reply said “the fellow only watches the surgery, and the doctor does all the work.”
“Pardon me, but this is laughable,” Johnson told the board.
She also questioned cosmetic surgeons’ ability to provide safe care, saying that after reviewing all of ABCS’s members in California, 24% “had disciplinary actions compared to less than 4%” of those certified in plastic surgery.
On top of that, her review of the websites of dozens of California cosmetic surgeons showed 26 were flouting the law by advertising themselves as “board certified cosmetic surgeons.” She said her group was filing 26 complaints with the board to make them stop.
In an interview, Johnson called the ABCS “a bogus board and a marketing tool.”
“We hope they will remain in their scope of practice, which is dermatology or ENT or ob/gyn. It is not plastic surgery.”
Sobel and his colleagues vehemently denied so many of their members have had disciplinary actions, or that their training lacks equivalent value and integrity.
Rather, those practicing other specialties who venture into cosmetic surgery without appropriate training are the ones endangering public safety.
“The clear anti-competitive intent and bias [from plastic surgery groups] truly prohibits… patient safety and care,” Sobel told the board. He said doctors from other specialties wish “to capitalize on consumer demand and profit from offering cosmetic procedures, despite minimal or no training in cosmetic medicine.”
Plastic surgeons had more comebacks. Their training takes place in academic settings rather than small office practices. “There’s clearly a high degree of variability in the breadth of patient experiences and patient care,” added Michael Wong, MD, president of the California Society of Plastic Surgeons.
Who gets more reprimands?
Cosmetic surgeons come to that specialty after training in other fields, such as ophthalmology, otolaryngology, dermatology, or obstetrics and gynecology, and have “their own subset” of knowledge, Wong continued. “In contrast, plastic surgery training covers the whole body of surgical anatomy… from head to toe.”
Cosmetic breast procedures, a large portion of cosmetic care, are a case in point. “You can see these physician specialties have notable deficiencies in knowledge of anatomy and pathology of the breast” that can’t be obtained in a one-year fellowship, he said.
Jacob Haiavy, MD of Rancho Cucamonga, past ABCS president, shot back. “Our colleagues, with all due respect, think that they are the only ones that should be practicing this specialty.”
He denied a higher number of licensing reprimands among cosmetic surgeons and noted plastic surgeons with disciplinary actions, singling one out.
“Look up Kenneth Benjamin Hughes who still has his license, has killed three people, one fat embolism, 10 bowel perforations, one thromboembolism and other patients are really, really sick.”
So many confusing claims prompted the medical board to hire Neal Fleming, MD, vice-chair of education and director of cardiovascular and thoracic anesthesiology at the University of California, Davis, to verify the ABCS’s training regimen. After reviewing “three volumes” of documents, Fleming couldn’t vouch for the ABCS.
“The educational resources provided by the sponsoring institutions, when listed, appear to be largely limited to a computer and maybe an office. The emphasis is on clinical case volume,” he wrote in a lengthy October review.
The Supreme Court “tooth-whitening” case
But Sobel and his ABCS colleagues protested again. They suggested the licensing agency’s members were putting themselves in legal peril, given the U.S. Supreme Court’s 2015 ruling in North Carolina Board of Dental Examiners v. Federal Trade Commission. At issue was whether the state’s dentist-controlled board could block non-dentists from performing tooth-whitening procedures.
In a nutshell, the court said licensing boards composed of market participants (that is, practicing providers) only have immunity from antitrust law when they are actively supervised by the state, which physicians on California’s medical board are not. Thus, the ABCS suggested, California medical board members are not only exceeding their authority in preventing cosmetic surgeons from claiming board certification, but are illegally suppressing competition.
The medical board debated at length, then asked Fleming to take another look.
So he did, asking the ABCS to elaborate on some 15 concerns that prompted his October recommendation.
But again, Fleming found that ABCS training programs as well as its responses to his questions fell short. For example, training program directors didn’t always have academic appointments or were engaged in verifiable scholarly activities, Fleming said.
“No documentation is provided to assure that even these most minimal of requirements are consistently provided by the training programs,” Fleming wrote in a Dec. 14 report to the board.
Of particular concern was that even though the ABCS had improved its training, cosmetic surgeons who had undergone their training before then would be grandfathered. “They were certified under guidelines previously not felt to be acceptable,” Fleming wrote.
Sobel and his ABCS colleagues reacted viscerally. They fired off an 11-page rebuttal, accusing Fleming, and perhaps the board, of “egregious dereliction of responsibility” and “predetermined bias” with “an unwillingness to get to the truth of the matter.”
Fleming was overly influenced by plastic surgeons, specifically CSPS president Wong, who works at UC Davis, said ABCS executive director attorney Peter Canalia. He likened it to “demanding that Chevrolet seek Ford’s approval to sell their cars in California.”
Fleming told the board he was dismayed by the rebuttal’s “gratuitous personal insults” since he’d done his best to find documentation to support the ABCS’s petition. The ABCS’s tone didn’t help.
The board unanimously voted to deny the petition. And that may be the end of the story — a state sunset rule prohibits the board from revisiting the issue.
But, asked if the ABCS might go to court based on the North Carolina Board ruling, Sobel replied that the ABCS is “considering all possible pathways forward.”
