Medi-Spas: What Are the Laws Governing Physician Oversight in California?
California has strict laws that preclude the unauthorized practice of medicine by someone without a license, explains a California personal injury lawyer. According to California’s Medical Practice Act, a medical license is required in order to diagnose and treat conditions, to administer drugs to human beings, to “sever and penetrate” the tissue of human beings, and to use any other methods to treat injuries, diseases, deformities or other conditions. Further, the Business and Professions Code section 2052 makes it a crime to practice medicine without a license, stating, in relevant part: “Any person who practices or attempts to practice, or who holds himself or herself out as practicing...[medicine] without having at the time of so doing a valid, unrevoked, or unsuspended certificate...is guilty of a public offense."
While this rule precludes unlicensed individuals from performing most medical procedures without a medical license, there are exceptions that allow nurses to administer Botox or to perform certain other cosmetic treatments that are offered at medi-spas. It is even possible for nurses to perform these procedures when a doctor is not on site. However, all procedures must be performed and conducted under the supervision of a physician.
Unfortunately, according to the Ventura County Star, the specific definition of “supervision” is not clear. The Department of Consumer Affairs is vested with responsibility for overseeing both the nursing and medical boards in California and a spokesman for the department, Russ Heimerich, told the newspaper that defining “supervision” is “the $21 million question." According to Heimerich, "What it’s [supervision] been taken to mean so far is that if a physician has standing orders or has confidence in the nurse and has done the medical exam to do the procedure, the physician doesn't have to be present." However, “the physician needs to have examined the patient first and prescribe the procedure.”
In April 2009, the medical board also attempted to make clear the obligations of physicians when it comes to medi-spas. According to the V.C. Star, the board warned doctors that it was illegal to become a partner in a medi-spa unless the physician actually intended to take responsibility for patients of the spa.
In addition to the warning from the medical board, existing California law also imposes certain limitations on the ability of physicians to enter into medi-spa businesses. These laws relate to limits on physicians joining or working in businesses with non-licensed professionals. For instance, non-physicians are prohibited from employing a licensed doctor to provide medical services. Further, non-physicians are not allowed to enter into contractual agreements that interfere with or exercise control over the medical decisions of a doctor.
These laws mean that a medi-spa in California that is not operating as a professional corporation is not permitted to directly employ the doctor who must supervise the medical services provided. The physician may be hired as a consultant, but this is permitted only if the consulting agreement does not interfere with the professional judgment of the physician.
Further, if a medi-spa is organized as a professional corporation, at least 51 percent of the shares have to be owned by a licensed doctor. Unlicensed individuals or organizations cannot own any shares or have any ownership interest in a professional medical corporation or in any other medical entity. However, the remaining 49 percent of shares can be owned by certain licensed clinicians including by registered nurses.
While it may seem as if California had a number of obstacles to medi-spas being operated without licensed physicians supervising, the laws simply have not proved to be a sufficient deterrent. As such, ABC Local reports that Governor Jerry Brown has recently signed a bill that cracks down on medi-spas that operate without proper physician involvement and supervision. These laws increase the maximum fines for violators from $1,200 to $50,000 and the incarceration time from 180 days in jail to 5 years in state prison. Hopefully, these harsher penalties will deter medi-spas from providing inadequate physician supervision and jeopardizing patient safety.
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