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Want to be a Medical Director at a Medical Spa? Beware
With the title comes responsibility—and liability
By: Renee E. Coover, JD
As medical spas continue to increase in popularity across the country, more physicians are wanting in on this lucrative and seemingly effortless business endeavor. As an attorney specializing in legal and regulatory matters concerning med spas, I frequently get phone calls from obstetricians and family practice doctors who are interested in becoming a “medical director” at a medical spa. The way they see it, acting as a medical director in a med spa is an easy way to enhance their income without the demands or long hours that a hospital or private practice requires.
But just as I tell each physician, being a “medical director” in a med spa involves much more than simply showing up to see patients once a month and getting a check in the mail. In fact, if simply putting their name down as “medical director” is all the physicians do, they are putting their medical licenses at great risk. Not only can the physician be charged with aiding and abetting the unauthorized practice of medicine, but the physician could be stripped of his or her medical license and charged with fines and penalties for operating a medical practice illegally.
The practice of medicine is serious. Even though medical spas sometimes look more like day spas and the majority of medical procedures being offered are very low-risk with few injuries or bad outcomes, med spas are still medical facilities and are subject to the same rules and regulations as a doctor’s office.
As I tell my clients, there are two principle things any potential medical director should be aware of: ownership and specialization.
First, ownership: In Illinois, like many states, med spas must be 100 percent physician-owned. This means that a physician cannot contract with a non-physician owned company (like a med spa or laser center owned by a layperson or nurse) to be that company’s “medical director.” If the physician contracts with a non-physician, the physician could be charged with aiding and abetting in the illegal and unauthorized practice of medicine. The physician also risks violating local fee-splitting statutes if med spa revenue is split between the physician and non-physician owned med spa. The bottom line is that in many states a “medical director” should be the owner of the medical spa, not merely an employee or contractor.
The second pitfall physicians face as medical directors deals with supervising and delegating medical tasks outside of their specialty. In most states the med spa medical director must specialize in, or at least have experience and training in, aesthetic medicine. In other words, the physician overseeing the medical spa must actually practice aesthetic medicine. Frequently, general practitioners, OB/ GYNs and emergency room physicians are quick to sign up as “medical directors” of med spas even though they have no training or experience in injectables, laser treatments, or any other aesthetic procedures. Even dermatologists and plastic surgeons need to have experience in these types of medical treatments in order to serve as a medical director.
The reasoning behind this requirement is simple: the medical director must have experience in the aesthetic medical procedures being offered in order to properly delegate and supervise these procedures and treatments. In Illinois, for instance, “any patient care task or duty the physician delegates to a licensed or unlicensed person must be within the scope of practice, education, training, or experience of the delegating physician …” [225 ILCS 60/54.2]. In other words, just as a podiatrist cannot perform heart surgery, a physician cannot inject Botox and fillers without any experience or training in this specialty.
Moreover, many physicians don’t understand that becoming a medical director means that they are assuming ultimate responsibility for all of the patients that are seen and treated at the med spa. The medical director is responsible for ensuring proper protocols are in place, overseeing treatment plans, ensuring confidentiality—all of the things that the medical spa itself handles. While many of these tasks can be delegated, it is the physician, not the other medical staff or business administrators, who is going to be held responsible if something goes wrong.
Alex Thiersch, attorney and Director of the American Med Spa Association (AmSpa), is frequently contacted by physicians who are hoping to sign on as a “medical director” but never actually step in the door of the med spa. His message? “Medical Directors, Beware,” says Thiersch. “Unless you plan to seriously open up shop as the owner of the med spa, obtain training in aesthetic medicine and consult and examine each patient before they are treated by another medical professional, then being called a medical director is really a misnomer. Physicians can get in serious trouble if they are not compliant with the law.”
Thiersch also warns that there may be insurance ramifications if the physician is not properly trained in the type of medicine he or she is supervising. For this reason, Thiersch not only advises that physicians seek proper legal representation, but that they also seek out the advice of a qualified insurance broker.
So before signing on the dotted line of medical directorship, physicians should take caution to read the laws that apply to them and consult with an attorney experienced in med spa law to assure that they are not risking their medical license or their career.
Reprinted from http://www.americanmedspa.org with permission from the American Med Spa Association.
Renee Elise Coover practices with Thiersch & Associates in Chicago. Thiersch & Associates specializes in med spa law and serves as special counsel for the American Med Spa Association (AmSpa). For more information contact Thiersch & Associates at (312) 981-0992 or send an email to Rcoover@thierschlaw.com.
The authors note that none of the information in this article should be considered legal advice. Every situation is different, and the laws of every state are different. Only a qualified local health attorney can advise you after hearing all the facts of your specific case. If you do not know an attorney, please contact the American Med Spa Association (AmSpa) for assistance (312.981.0993 or firstname.lastname@example.org).