Asking for help is important, but all too often a client call is more like a cry for help. Tune in as Michael and Brad are joined by ByrdAdatto attorney Courtney Cowan as they discuss the importance of the good faith exam — also referred to as the med spa widow maker.
Listen to the full episode using the player below, or by visiting one of the links. Below is the episode’s transcript which has been edited for readability. If you have any questions or would like to learn more, email us at firstname.lastname@example.org.
Warning: This episode might contain explicit language unsuitable for young listeners.
Intro: [00:00:00] Welcome to Legal 123s with ByrdAdatto. Legal issues simplified through real client stories and real world experiences. Creating simplicity in three, two, one.
Brad: Welcome back to another episode of Legal 123s with ByrdAdatto. I’m your host, Brad Adatto with my cohost Michael Byrd.
Michael: Thanks Brad. As a business and healthcare law firm, when we get our client calls, they are usually calling with a request for help. The problem is the timing when they’re making that call, all too often, it’s not so much a request for help as a cry for help. They don’t ask us early enough.
Brad: Yeah. And we’ve talked about this before we call this the five- fifty rule. We’ve talked about a different episode, even, but for those who are not familiar with the five- fifty rule, the basic concept is that, look, you’re going to have to pay someone to help you do certain things that you’re just not familiar with. And you can either pay them upfront $5, or on the backend [00:01:00] $50. Or as one of my clients once said, well, you all should be calling it the 5,000- $50,000 rule. And I said, well, that’s because you keep getting yourself in $50,000 issues. So the point being is, as Michael said, asking for help early is pretty smart.
Michael: Yeah. So this whole season, we’re concentrating on that question: when should you ask for help? And today’s story will show how a simple conversation of calling two of your friends, who you text with often and happens to be a healthcare attorney, could have stopped a major compliance headache and medical board investigation.
Brad: Michael, before we start today’s episode, I was wondering, do you remember the movie called Star Wars- A New Hope?
Michael: Here we go again. Well, so in prior seasons, I’ve talked over and over about you needing to stop going with these eighties movies references, and I guess you’re going to double down and go to the seventies now.
Brad: I mean, look, [00:02:00] 1977, when Star Wars, the original one, came out I was six years old and I learned a lot from that movie. I learned about the force, lasers, hyper drive, the dark side, light sabers, and I really wanted to go into those cantinas and see aliens play music. I mean, who doesn’t love that song?
Michael: And you’re almost fifty and still talking about it.
Michael: Okay. Where are you going with this?
Brad: All right, so let’s fast forward about 40 years later. I’m seeing a dermatologist about a blemish on my forehead and she recommended that they use a laser on it. So I’ll go next door to her med spa, which is literally right next door to her actual practice. And I get seated for the patient treatment and the laser technicians starts getting me prepared and I start giggling and she’s like, honey, are you okay? And I was like, yeah, I’m fine. I’m just a little excited and nervous about this procedure. And she was like, why it’s perfectly safe? And she starts to kind of go into a little routine. I said, well, growing up my [00:03:00] entire life, based on the movie Star Wars, whenever someone gets shot in the face with a laser, it would basically cause certain death. So I’m kind of eager to see what happens here.
Michael: So was this blemish on your forehead a lightning bolt? And are you about to tell me that you almost won state in Quidditch?
Brad: Uh, no. Fair, all fair points, but I did not. But that’s a great reference to someone that we will bring in later today to help us in this episode. But let’s get back to today, Michael. Today’s episode, when we were getting ready for it, I could not stop thinking about lasers and advanced technologies as to what happened with one of our clients. Michael, our theme this season for Legal 123s with ByrdAdatto is when should I ask for help? And as you know, in the aesthetic industry, it’s growing crazy fast in both the number of providers that are out there and the technologies actually used in this space.
Michael: [00:04:00] Was that just like a subliminal ad, where should I ask for help— ByrdAdatto. So I mean, back in the day, lasers really were kind of like the Star Wars lasers. They packed a punch and they were pretty invasive. And, you know, over the last 10 years, we’ve seen body sculpting, vaginal rejuvenation, micro-needling, STEM cell treatments, and the list goes on. It’s really crazy how rapid the technology is developing and changing and it seems to just increase each year.
Brad: Yeah. And the rapid pace that you’re describing is not only that, but we have providers that hear about this new device that’s out there and they just add it to their practice. And unfortunately, they’re not really keeping up with what is the standard of care that’s required with all these new technologies that they keep bringing into their office. Which perfectly moves into today’s story.
Michael: Yeah. We could probably do a whole episode on our doctors who are addicted to the toys and ended up having really expensive [00:05:00] coat racks in their office. So today’s story, I received a call from a board certified plastic surgeon. And this is not just a client, this is a personal friend of both of ours, and someone we would routinely catch up with, someone we would routinely text with, just on random friend stuff. He had received a notice from the medical board that they were investigating him for aiding and abetting in the unlicensed practice of medicine, delegation to an unqualified person, and unprofessional conduct.
Brad: So what was the horrible crime that he committed?
Michael: Let’s take a step back to truly paint the picture of what happened before this investigation started. So our friend, we’ll call him Luke Skywalker.
Brad: Yes. Great name.
Michael: Yep. He decided to expand his plastic surgery practice by adding a CoolSculpting machine.
Brad: [00:06:00] Michael, I think we may have hit our first vocabulary word of the day. For our friends not in the aesthetic industry, or those who are just not familiar, what is a CoolSculpting machine?
Michael: Okay, well you know I’m not a science guru, so we’re not going to go with the technical definition, but essentially us a CoolSculpting machine is a machine that uses a fat freezing method to get rid of fat in certain parts of your body. You heard me mentioned body sculpting, it’s an entire area in the med spa industry that has other devices now, but CoolSculpting is kind of one of the OGs for body sculpting. And basically they use predetermined spots of your body to place paddles, to freeze the fat and once frozen it eventually dissolves naturally.
Brad: That’s well done. I think we all should now understand what that is so let’s go back to Dr. Skywalker.
Michael: Well, Dr. Skywalker wanted to add this CoolSculpting machine to his practice and [00:07:00] allow his patients to have another non-invasive form of treatment at his practice. So he set the machine up in an exam room in his office, and hired a medical assistant who had had many years using this device to run it in his office.
Brad: Okay. So far so good. This is the typical way we hear that many medical providers will set up the clinic. So what went wrong?
Michael: The second patient, I repeat, the second patient that came in to receive treatment on this CoolSculpting machine, turns out worked for a competitor and reported him to the medical board.
Brad: Whoa, sounds very corporate espionage- like, sounds like a really dirty trick. But unfortunately as everyone here knows, we’ve heard that competitors will secret shop each other from time to time. And unfortunately, sometimes even report them to the medical board. So, what did they allege that he did was so wrong.
Michael: Yeah. Well, let’s talk about what happened so you can kind of [00:08:00] get the full picture. The second patient was seen at Dr. Skywalker’s office. While Dr. Skywalker was in the office, seeing other patients. Prior to providing any services, Dr. Skywalker reviewed all the information obtained on the medical history, the pre-procedure photos taken that day, and the informed consent of the patient. Dr. Skywalker agreed that the plan of action was acceptable and directed his medical assistant that it was all clear to provide the service. He also spoke to the staff member multiple times on questions the patient had prior to treatment. However, Dr. Skywalker never physically saw or spoke to the patient, as we learned from him later, because it was a non-invasive treatment.
Brad: I know you’re trying to trigger me because you use that term noninvasive at least twice when you were telling this story, [00:09:00] I’m going to let it pass to now, but I definitely want to address it in the second half of this episode.
Michael: Fair enough. After the treatment, the patient had several follow-up calls with Dr. Skywalker’s office, including Dr. Skywalker calling in a prescription for some pain and discomfort that the patient had had from the treatment. About 30 days after the treatment, they followed up with the patient and the patient noted that she was satisfied with the procedure and had no complications. Unfortunately, this is where it goes bad. Unbeknownst to Dr. Skywalker, the patient reported him to the medical board and the medical board decided to open a formal investigation.
Brad: Man, based on the facts, I’m sure our audience cannot understand how this leads to a full investigation. I mean, it appears that he’s done everything correct for a non-invasive treatment. But let’s go to the break. And when we come back, we can further examine why the medical board opened this investigation in this case. And I think [00:10:00] we can ask for some help from one of our friends.
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Brad: Welcome back to Legal 123s with ByrdAdatto, I’m your host Brad Adatto with my cohost Michael Byrd. Now Michael, this season, the theme is when should I ask for help? So for the second half of our show, we are joined by our friend and colleague Courtney Cowen. She is going to help us break down today’s story on when you should ask for help. Michael, please bring in [00:11:00] Courtney.
Michael: Courtney is from Midland, Texas. She is an attorney in our Dallas office, on a personal note, she’s married to her husband, Ryan, a card carrying millennial. She went to her undergrad at Baylor, law school at SMU and yes, Brad, I know why you love Courtney. She has a Harry Potter wand in her office.
Brad: So awesome.
Michael: Welcome Courtney.
Courtney: Oh, well, thanks for that really comprehensive and pretty embarrassing introduction, Michael, but I’m super happy to be here and chat with y’all.
Brad: Awesome. Well, we’re happy that you’re here with us too Courtney, and you’re familiar with the story, but it seems really strange as to why the medical board would open an investigation as the patient was seen at Dr. Skywalker’s office, he was present at the office here, reviewed and approved all the treatment plans and even answered the questions of the patient. What went wrong? [00:12:00]
Courtney: Well, simply put Brad, he failed to conduct what’s referred to in the industry as a good faith exam.
Brad: Michael, I think Courtney just gave us our second vocabulary word of the day. What does that mean?
Michael: A good faith exam is kind of a term of art in the industry. It actually is a legal term used California. It’s kind of been adopted. You’ll hear it called the initial exam, the initial consult, but essentially it’s that beginning phase where a doctor has to make a diagnosis. And there’s steps that are required to make sure that whatever medical treatment is going to be provided, a doctor has deemed as appropriate and gives a treatment plan.
Brad: Okay. Let’s dive a little bit deeper. Now, Courtney, what consists of this particular process?
Courtney: Yeah, before I jump in, I just [00:13:00] want everyone to keep in mind that it’s going to look a little different for every practice and every med spa, but generally the good faith exam happens in two parts. By first obtaining a patient’s medical history, then followed by performing an appropriate physical examination of the patient. So the medical history is going to be a brief account of the patient’s general lifestyle, medical events and ongoing treatments that may contain relevant information regarding the patient’s health. And then the second part, the physical exam is an assessment of the patient’s physical condition, both generally, and specifically of the areas where the patient will receive treatment.
Brad: Awesome. That’s a good explanation. So Michael, who can perform this good faith exam?
Michael: This is one of the few areas in our world that seems to be consistent across all 50 states and essentially a doctor, physician assistant [00:14:00] and a nurse practitioner have the scope of practice to perform this initial exam or get faith exam.
Brad: All right. Well, we’ve spoken to many nurses who say, look, it’s in our scope of practice to actually take the medical history and it’s in our scope of practice in many states to actually help perform a physical examination of the patient. So why can’t we as an RN provide this good faith exam? Courtney do you know?
Courtney: Yeah, registered nurses can help the physician, PA or NP, in administering the good faith exam, but they can’t generate orders for treatment based on the exam. This is because their scope of practice is more limited, meaning that the regulations governing RNs don’t allow for them to diagnose, develop a treatment plan, or write prescriptions.
Brad: Okay. That’s starting to make sense, but Michael, does that mean that this doctor that you described there, nurse practitioner, or PA [00:15:00] every single time this patient comes to the front door, they have to do this exam every single time?
Michael: No, not at all. I mean, essentially what we’re shooting for here is, as we said, the diagnosis. And the other part of it that I mentioned is the treatment plan. You may, for example, have a treatment plan, using CoolSculpting as our example, to do a series of six CoolSculpting treatments over a certain number of weeks or months. Once that’s kind of part of the treatment plan, you don’t have to usually see the doctor in PA again now.
When that patient comes back for a treatment, you should inquire whether there’s been a change in health. And if there has, then they need to go back in and see the doctor in PA again. But otherwise it can just be carried out by whoever is the provider of the treatment.
Brad: Yeah. And I think that’s a good point for our audience to [00:16:00] understand is that they can come in. But obviously asking that question, has there been a material change in their health, or you’re adding a new treatment, but let’s pause. I mean we’ve talked a little bit around this, but we haven’t really addressed it, Courtney so the good faith exam doesn’t happen every single time. What medical treatments that are needed to conduct a good faith exam?
Courtney: So just like you just said, Brad, if it’s a medical treatment, then you’re going to want to conduct the good faith exam. So, okay medical treatment equals good faith exam. Got it. But I would say if you’re newer to the industry, or if you haven’t brushed up on your state legislation recently, you’re going to want to know like, okay, but what is a medical treatment? So it’s any treatment or service that impacts or affects the living tissue of the body. So for example, most States believe that any treatment that affects anything outside of the epidermis is considered a medical treatment. [00:17:00] W get a lot of confusion about whether certain treatments constitute medical treatments. One example I get asked about frequently, and it’s really relevant to our example is CoolSculpting, but most States will consider that a medical treatment. So the takeaway is that it’s always better to err on the side of caution and perform the good faith exam, if you’re not sure whether something constitutes a medical treatment.
Michael: So an exception to a medical treatment though, Brad, is if it’s non-invasive right.
Brad: You know, Michael, I was just about to ask you that question. What the hell is a noninvasive surface?
Michael: Well, it’s funny, it’s common in the MedSpa industry to think oh, it’s noninvasive, so it’s not medical. In fact, I literally had a call two days ago with a MedSpa who is [00:18:00] set up with the MSO. And I found out that they’re not running their medical treatments, they’re CoolSculpting through the medical entity because he said that was noninvasive. It’s even more common with our plastic surgeons because intuitively they connect invasive surgical procedures in the practice of medicine and see these obviously less invasive treatments as nonmedical.
Brad: And Michael you said the term MSO, and for our audience who is not familiar with that, that means management service organization. Those typically are the management companies who help with nonclinical decision-making. So Michael’s point on that was, it sounded like they’re pushing medical treatments, as Courtney articulated earlier, into a management service organization because they thought it was noninvasive. And therefore you’re free to do everything you want because it’s not surgery, it’s okay. The answer is:
Michael: Medical. [00:19:00]
Brad: All right. So hopefully our audience is understanding we’re slowly walking you through what happens when someone comes to your door for the very first time, and you want to determine whether or not they’re a good candidate. You’ve gone through the good faith exam. We’ve talked about when the exceptions are to that good faith exam, meaning that they’ve come back and they’ve been cleared for those services. But Michael, let’s get back to our story at hand. When we left for the break, we’re talking about someone that appeared they did a lot of things right, and Courtney articulated that no, he skipped the good faith exam. Well, what happened to Dr. Skywalker? What were the results of the investigation?
Michael: Dr. Skywalker dodged a bullet, or I guess using our theme today dodged a laser.
Brad: Nice. Good one.
Michael: Yeah. I knew you’d like that. He was noncompliant. I mean, there was no way around it. We were building our defense to the medical board [00:20:00] really around the fact that there was no patient harm. And we know that that is really what the medical board cares about. And we actually got a panel of other doctors who also have that same bias towards non-invasive, which worked in Dr. Skywalker’s favor, and the panel that he had happened to have a real lack of understanding of the med spa world. And so they really just didn’t take a lot of interest in this case, which allowed him to get the case dismissed. Mind you, there was a full investigation, a hearing, time, and money. So it wasn’t a complete victory, but it was a complete dismissal ultimately.
Brad: Yeah. I think the other point in this particular case that helped is that once we were involved, and he realized his [00:21:00] mistake, he started mitigating that from happening again. So he put together standard operating procedures, he made sure that there was good faith exams by him or the appropriate persons, so when he finally did show up, he was able to say hey, this is my second patient. I was in the office, but of course I didn’t see this person. So yes, but I’ve never made that mistake again. So it was able to tell a story. And as you said, because it was non-invasive and he had done these corrective actions, we think that the medical board felt more comfortable that this was just something to move forward from, and it was not unprofessional from what he was doing. Courtney, do you have any other takeaways on Dr. Skywalker before we move on?
Courtney: No, I think y’all touched on it. Really the biggest takeaway for me was if he was unsure about whether CoolSculpting was a medical treatment, he could have emailed her or texted, you know? And then I think it would have caused [00:22:00] him to not have all that headache because we were like, yes that’s medical you got to perform a good faith exam.
Brad: Pretty simple answer. Michael, what about you?
Michael: I have a couple of thoughts. One is that on the wind to ask for help, if you’re a plastic surgeon or a doctor, and you’re thinking about introducing something new or even a MedSpa, and you’re going to introduce something new to your business, it’s an easy phone call that may take five minutes to identify. Yes, doing it as you want that works or no, this is how you have to do that. And then the second thing, we call the good faith exam, the MedSpa Widow Maker. And the reason we do that it is, A, the thing that the medical board tends, across the country, to care about the most because it’s the thing that most likely impacts patient care. [00:23:00] Like if you have someone getting a medical treatment and they never saw a doctor, they have a big problem with that. And then, secondly, it’s really easy to enforce from a compliance perspective. I mean, the patient is going to know, did they see a doctor or a nurse, a nurse practitioner, or a physician assistant. And as they become more and more educated that that’s a thing that needs to happen, and they know that that hasn’t happened, then that increases the likelihood that they’re going to turn that MedSpa in for that infraction.
Brad: Yeah, absolutely. And those are all good points. Courtney, thanks again for helping us out today. We liked the fact that we could dial a friend and you could help us, and glad you could join us.
Courtney: Of course, it’s always good catching up with you all. Thanks for having me.
Brad: Well, please join us next Wednesday when we have our special guest, Benjamin Hernandez, from SkyTale group.
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