#MeToo - Stories Of Sexual Harassment In Cosmetic Medicine

#MeToo - Is sexual harassment more common in cosmetic medical clinics than other areas? Do you have a story?

In speaking out about sexual harassment, clinicians and estheticians are growing a social movement outing those in power who have engaged in what amounts to criminal sexual behaviors.

In reading a story from the Washington Post on sexual harassment in medicine I began thinking of a number of incidents that I witnessed that, depending upon your point of view, could have been seen as sexual harassment.

From the article:

"A Kaiser Health News review of dozens of legal cases involving health-care workers across the United States shows patterns similar to those found in harassment cases that have cropped up in other fields: The alleged harassers are typically male, and they typically supervise or outrank the workers lodging the complaints. There are slaps on the butt, lewd comments and requests for sex. When superiors are confronted with reports of bad behavior, the complainants, mostly women, are disbelieved, demoted or fired."

Medical spas and cosmetic clinics are almost linear in their conformity to sexual harassment cliches. They are often owned an operated by males, often physicians, and staffed by (generally) younger women who have almost zero power inside of the clinic. Where a nurse in a hospital may have outside resources like a union or an HR department that may at least provide an option to make a complaint or provide a curb on behaviors, most staff in a medspa or cosmetic practice have no recourse other than to quit or file a lawsuit.

There seems to be something of a societal shift taking place that may recalibrate what is appropriate and clamp down on unwanted sexual behaviors.

I've witnessed a number of encounters that made me uncomfortable; a physician having a foot-rub from an employee, a couple of comments about looks, the occasional double entendre. But these were just observations of how physicians and others behaved in their own clinics.

I've also observed any number of actions that - in any other work situation - would be clearly outside of the bounds of permissible behavior; before and after photos of staff members being used to show vaginal rejuvenation or breast augmentation being just one of many examples.

As with most human interactions there are often two sides to the story.

If you have been subjected to unwanted sexual actions in a practice, or if you've been accused of misconduct that didn't happen, please click on the button below and tell your story. (We will not use your name or any identifiable information if your story is published.)

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Louisiana Cosmetic Laser & IPL Law Questions & Answers

Legal issues around who can own or use a cosmetic laser or IPL are among the most common questions asked by both physicians and non-physicians who are investigating the medical spa market.

Here's a question posted inside the Medical Spa MD LinkedIn Group

What is the best way to find out what the Louisiana Laws are for operating lasers at your spa? From what I have read, it seems as though you have to have a physician present, however, most of the medi spas around run lasers but do not have physicians present so I am very confused. Does anyone know a way to find out more information?

Update on 2014-09-08 22:17 by Medical Spa MD

A link has been posted in the comments detailing a "Statement of Position" from the Louisiana State Board of Medical Examiners. Here's the link: 

http://www.lsbme.la.gov/sites/default/files/documents/Statements%20of%20Position/UseofMedicalLasersChemicalSkinTreatment.pdf

Texas Law & Medical Spas

The first of July (2014), a Texas judge in the 126th State District Court in Austin ruled that the Texas Medical Board Rule 193.17 which sought to impose restrictions on who could practice cosmetic medicine was without "reasoned justification" and should be remanded for further consideration.

Mark one up for the Texas Association of Aesthetic Nurses.

The association had sued asking for the rule to be invalidated and it seems that the judge agreed.

Under Rule 193.17, among a laundry list of requirements, medical spas could not perform nonsurgical medical procedures without having a physician, a nurse practitioner or physician assistant on staff to complete a 10-step process before beginning the procedure. The rule did not, however, require a physician actually be on the premises during the procedure, but rather necessitated only that a doctor be available for an emergency consultation. Judge Yelenosky’s order noted that: The rule allows qualified unlicensed personnel to perform a procedure without a physician or midlevel practitioner onsite during the procedure and without requiring the physician to go onsite in the event of an adverse outcome. Yet the reason given for the rule is that the presence of a physician or midlevel provider during procedures to personally treat or supervise treatment of any complications arising from the procedure insures patient safety. The rule and the justification contradict one another.

According to the ruling it seems that if the Rule were to require a physician or midlevel practitioner to be present during a procedure, it would probably pass muster with the judge.

Although I don't think that Texas has passed specific legislation or adopted particular rules governing medical spa operations (check with your lawer if you're in TX), there has been a number of administrative actions taken related to unauthorized services being performed or the failure of such licensed professionals to adequately supervise the performance of such services. Additionally, the Texas Medical Board has established a rule that requires physicians who perform procedures for which anesthesia services, including the use of analgesics and anxiolytics, are provided in an outpatient setting to register with the TMB. While this TMB registration requirement primarily affects outpatient surgeries performed at licensed Ambulatory Surgery Centers in Texas, the language of the rule would also cover any outpatient surgeries performed in a medical spa that require anesthesia services. A new TMB rule related to nonsurgical medical cosmetic procedures (22 Tex. Admin. Code § 193.17) became effective on November 7, 2013.

Texas often likes to chart it's own course so we'll watch and see where this goes.

My opinion is that a physician should be on site if a NP or PA is not the one administering the treatments. It seems somewhat rediculous to allow the term "medical spa" to be used as it is in Canada and parts of SA and the EU when there's no medical personnel involved. It seems that the medical board in Texas stretched just a little too far in trying to restrict cosmeitic medicine to physicians but not making them be on site.

Medical Spas + Legal Changes

Laws that define and emcompass medical spas and cosmetic clinics are changing all of the time, usually driven by a desire to protect someone's turf under the guise of 'safety'.

Pretty much all medicine comes with some risks. In fact, according to a 1999 report by the Institute of Medicine, as many as 98,000 Americans were dying every year because of medical mistakes. Here's a story about that from the New York Times.

Not a nice statistic at all. 

So of course there are going to be mistakes made in cosmetic medicine and there are clinics that are operating unsafely, with insufficient oversight, and with people performing treatments who should not be.

As will all things, these new moves are pushed by complaints, both from injured patients, and also by people, generally physicians, who have an interest in protecting a market space.

Here's part of a Wall Street Journal article: Medical Spas Get A Checkup. Link

A few months ago, Maryland Gov. Martin O'Malley signed a new law directing the state health department to oversee cosmetic-surgery facilities after one woman died and two others became seriously ill with Group A streptococcus infections traced to liposuction at a Baltimore clinic

Florida now requires that liposuctions removing more than two pounds of fat be performed in a state-licensed surgical center with emergency equipment on hand, after two women died from overdoses of lidocaine, a local anesthetic. In California, it is now a felony, punishable by up to five years in prison and a $50,000 fine, for a corporate entity to own a medical spa; the majority owners must be M.D.s.

Pennsylvania is weighing tighter rules on who can provide laser treatments. Fourteen states are considering "truth in advertising" laws, many of which would require medical spas to list personnel's training and credentials in all marketing. Some proposals, like New York's, would require anyone who wears a white coat and treats patients to list credentials on a nametag.

The push for more regulation is being driven in part by dermatologists who say allowing nonphysicians to perform cosmetic procedures puts patients at risk.

"It's the difference between four years of medical school and four to five years of residency versus beauty school," says Timothy Flynn, president of the American Society for Dermatologic Surgery Association, which has lobbied for stricter rules in several states. The ASDSA considers any use of lasers, lights, electrical impulses, chemical peels, injections, insertions or tissue augmentation to be the practice of medicine, which it says should be performed by a physician or midlevel health professional, such as a physician assistant, under a doctor's supervision.

Supporters of medical spas say they get a bad rap when it comes to injuries. "In 2009, there were over 9,000 deaths in hospitals related to errors, but one death occurs in a medical spa and it's on the national news...

"I've treated patients who were burned at the hands of a doctor," says Paula Young, a nurse who owns three medical spas with her physician husband in Pennsylvania. She says she would have to lay off seven experienced laser technicians and close her tattoo- and hair-removal clinic under the state's proposal allowing only physicians or physician-supervised nurses and PAs to perform laser treatments.

So where's the line?

Lest you think that we're for less or looser oversight, let me say that we're not. In my opinion, a physician should be on site and see every single patient before treatment. However, if you're doing an axillia hair removal treatment, I don't think that that physician needs to be a board certified plastic surgeon or dermatologist. Rational opinions welcome.

Medical Spa MD: Online Defamation FAQ For Physicians

Understanding what is libel or defamation and what is protected speech.

Your medical spa, plastic surgery practice, or professional reputation are are open to criticism and 'reveiws' online. Here's what you need to know about what's protected free speech, and what might cross the line into Libel.

Here are some links about these kinds of CyberSlapp suits and where the law comes down on free speech and other issues around this:

Chilling Effects Clearinghouse: A joint project of the Electronic Frontier Foundation and Harvard, Stanford, Berkeley, University of San Francisco, University of Maine, George Washington School of Law, and Santa Clara University School of Law clinics.

Defamation: The law of defamation balances two important, and sometimes competing, rights: the right to engage in free speech and the right to be free from untrue attacks on reputation. In practice, the filing or even the threat to file a lawsuit for defamation has sometimes been used as a tool to shut down legitimate comment and free speech on the Internet.

John Doe Anonymity: Do you post to a public message boards or discussion areas on websites such as Yahoo, AOL or Raging Bull? Do you use a pseudonym, fake name or a "handle"? Has someone asked the host of the discussion or your ISP to turn over information about you or your identity? If so, then the John Doe/Anonymity section may answer some of your questions. 

Protest, Parody and Criticism Sites: The Internet, which offers inexpensive access to a worldwide audience, provides an unparalleled opportunity for individuals to criticize, protest and parody.

The following is long but you'll come away with a much better understanding of what this all means and what speech is protected in the U.S.

Need to protect your reputation? Check out Frontdesk's Reputation Protection for Physicians

Online Defamation FAQ

Question: What are the elements of a defamation claim?

Answer: The party making a defamation claim (plaintiff) must ordinarily prove all four elements:

1. a publication to one other than the person defamed;
2. a false statement of fact;
3. that is understood as
       a. being of and concerning the plaintif; and
       b. tending to harm the reputation of the plaintiff. 
4. If the plaintiff is a public figure, he or she must also prove actual malice.

Question: What defenses may be available to someone who is sued for defamation?

Answer: There are ordinarily 6 possible defenses available to a defendant who is sued for libel (published defamatory communication.)
1. Truth. This is a complete defense, but may be difficult to prove.
2. Fair comment on a matter of public interest. This defense applies to "opinion" only, as compared to a statement of fact. The defendant usually needs to prove that the opinion is honestly held and the comments were not motivated by actual "malice." ( Malice means knowledge of falsity or reckless disregard for the truth of falsity of the defamatory statement.)
3. Privilege. The privilege may be absolute or qualified. Privilege generally exists where the speaker or writer has a duty to communicate to a specific person or persons on a given occasion. In some cases the privilege is qualified and may be lost if the publication is unnecessarily wide or made with malice.
4. Consent. This is rarely available, as plaintiffs will not ordinarily agree to the publication of statements that they find offensive.
5. Innocent dissemination. In some cases a party who has no knowledge of the content of a defamatory statement may use this defense. For example, a mailman who delivers a sealed envelope containing a defamatory statement, is not legally liable for any damages that come about from the statement.
6. Plaintiff's poor reputation. Defendant can mitigate (lessen) damages for a defamatory statement by proving that the plaintiff did not have a good reputation to begin with. Defendant ordinarily can prove plaintiff's poor reputation by calling witnesses with knowledge of the plaintiff's prior reputation relating to the defamatory content.

Question: Can an opinion be defamatory?

Answer: No — but merely labeling a statement as your "opinion" does not make it so. Courts look at whether a reasonable reader or listener could understand the statement as asserting a statement of verifiable fact. (A verifiable fact is one capable of being proven true or false.) This is determined in light of the context of the statement. A few courts have said that statements made in the context of an Internet bulletin board or chat room are highly likely to be opinions or hyperbole, but they do look at the remark in context to see if it's likely to be seen as a true, even if controversial, opinion rather than an assertion of fact dressed up as an opinion.

Question: Is there a difference between reporting on public and private figures?

Answer: Yes. A private figure claiming defamation — your neighbor, your roommate, the guy who walks his dog by your favorite coffee shop — only has to prove you acted negligently, which is to say that a "reasonable person" would not have published the defamatory statement.

A public figure must show "actual malice" — that you published with either knowledge of falsity or in reckless disregard for the truth. This is a difficult standard for a plaintiff to meet and especially if you're running a business that engages in any marketing or advertising that effectively makes your business 'public'.

Question: Who is a public figure?

Answer: A public figure is someone who has actively sought, in a given matter of public interest, to influence the resolution of the matter. In addition to the obvious public figures — a government employee, a senator, a presidential candidate — someone may be a limited-purpose public figure. A limited-purpose public figure is one who (a) voluntarily participates in a discussion about a public controversy, and (b) has access to the media to get his or her own view across. One can also be an involuntary limited-purpose public figure — for example, an air traffic controller on duty at time of fatal crash was held to be an involuntary, limited-purpose public figure, due to his role in a major public occurrence. 

Examples of public figures:

• An attorney for a corporation organized to recall members of city counsel
• A psychologist who conducted "nude marathon" group therapy
• A land developer seeking public approval for housing near a toxic chemical plant
• Members of an activist group who spoke with reporters at public events
• Your medical spa or clinic...

Corporations are not always public figures. They are judged by the same standards as individuals.

Question: May someone other than the person who originally made the defamatory statement be legally liable in defamation?

Answer: One who "publishes" a defamatory statement may be liable. However, 47 U.S.C. sec. 230 says that online service providers are not publishers of content posted by their users. Section 230 gives most ISPs and message board hosts the discretion to keep postings or delete them, whichever they prefer, in response to claims by others that a posting is defamatory or libelous. Most ISPs and message board hosts also post terms of service that give them the right to delete or not delete messages as they see fit and such terms have generally been held to be enforceable under law. 

Question: Can an ISP or the host of the message board or chat room be held liable for
defamatory of libelous statements made by others on the message board?

Answer: No. Not in the United States.

Under 47 U.S.C. sec. 230(c)(1) (CDA Sec. 230): "No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider." This provision has been uniformly interpreted by the Courts to provide complete protection against defamation or libel claims made against an ISP, message board, blog comments or cummunity forums where the statements are made by third parties. Note that this immunity does not extend to claims made under intellectual property laws.

Question: Must an ISP or message board host delete postings that someone tells him/her are defamatory? Can the ISP or message board delete postings in response to a request from a third party?

Answer: 47 U.S.C. sec. 230 gives most ISPs and message board hosts the discretion to keep postings or delete them, whichever they prefer, in response to claims by others that a posting is defamatory or libelous. Most ISPs and message board hosts also post terms of service that give them the right to delete or not delete messages as they see fit and such terms have generally been held to be enforceable under law. 

CyberSLAPP & John Doe Lawsuits

Question: How is Internet anonymity affected by John Doe lawsuits?

Answer: Often called "CyberSLAPP" suits, these lawsuits typically involve a person who has posted anonymous criticisms of a corporation or public figure on the Internet. The target of the criticism then files a lawsuit so they can issue a subpoena to the Web site or Internet Service Provider (ISP) involved and thereby discover the identity of their anonymous critic. The concern is that this discovery of their identity will intimidate or silence online speakers even though they were engaging in protected expression under the First Amendment.

Question: Why is anonymous speech important?

Answer: There are a wide variety of reasons why people choose to speak anonymously. Many use anonymity to make criticisms that are difficult to state openly - to their boss, for example, or the principal of their children's school. The Internet has become a place where persons who might otherwise be stigmatized or embarrassed can gather and share information and support - victims of violence, cancer patients, AIDS sufferers, child abuse and spousal abuse survivors, for example. They use newsgroups, Web sites, chat rooms, message boards, and other services to share sensitive and personal information anonymously without fear of embarrassment or harm. Some police departments run phone services that allow anonymous reporting of crimes; it is only a matter of time before such services are available on the Internet. Anonymity also allows "whistleblowers" reporting on government or company abuses to bring important safety issues to light without fear of stigma or retaliation. And human rights workers and citizens of repressive regimes around the world who want to share information or just tell their stories frequently depend on staying anonymous – sometimes for their very lives.

Question: Is anonymous speech a right?

Answer: Yes. Anonymous speech is presumptively protected by the First Amendment to the Constitution. Anonymous pamphleteering played an important role for the Founding Fathers, including James Madison, Alexander Hamilton, and John Jay, whose Federalist Papers were first published anonymously.

And the Supreme Court has consistently backed up that tradition. The key U.S. Supreme Court case is McIntyre v. Ohio Elections Commission. http://www.eff.org/Legal/Cases/mcintyre_v_ohio.decision

Question: What are the typical claims behind a CyberSLAPP suit?

Answer: The most common complaints by CyberSLAPP plaintiffs are defamation, trademark or copyright infringement, and breach of contract. Speech that involves a public figure - such as your medical spa or practice - is only defamatory if it is false and said with "actual malice." It also must be promoted as being factual rather than an expression of opinion. In the US, because of our strong free speech protections, it is almost impossible to prove defamation against a public figure.

Trademark and copyright complaints typically claim that defendants have violated intellectual property rights by using the name of a corporation or its products, or by quoting from some of their copyrighted materials such as an annual report. In reality, the First Amendment includes a clear right to criticize and discuss corporations and their products, and the law includes clear exceptions for the "fair use" of protected material for those purposes.

Breach of contract suits often involve a claim that anonymous speakers might be employees who have violated a contract by releasing confidential information. Of course, the right to anonymous speech is meaningless if a corporation can unmask your identity at will because you might be an employee breaking a promise of confidentiality.

Question: What other resources are available?

Answer: Web sites dealing with this issue include:

www.aclu.org, 
www.citizen.org, 
www.johndoes.org, 
www.casp.net, 
www.cybersecuritieslaw.com,
cyber.findlaw.com/expression/censorship.html

Question: What are the key federal decisions involving anonymous speech?

Answer: 1. Buckley v. American Constitutional Law Foundation (1999) 525 U.S. 182, 197-200;

2. McIntyre v. Ohio Elections Commission (1995) 514 U.S. 334. In that case, on page 357, the Supreme Court said:

"[A]n author is generally free to decide whether or not to disclose his or her true identity. The decision in favor of anonymity may be motivated by fear of economic or official retaliation, by concern about social ostracism, or merely by a desire to preserve as much of one’s privacy as possible. Whatever the motivation may be, . . . the interest in having anonymous works enter the marketplace of ideas unquestionably outweighs any public interest in requiring disclosure as a condition of entry. Accordingly, an author’s decision to remain anonymous, like other decisions concerning omissions or additions to the content Amendment.
* * *
Under our Constitution, anonymous pamphleteering is not a pernicious, fraudulent practice, but an honorable tradition of advocacy and dissent.

3. Talley v. California (1960) 362 U.S. 60. (holding unconstitutional a state ordinance prohibiting the distribution of anonymous handbills)

4. Lamont v. Postmaster General (1965) 381 U.S. 301, 307 (finding unconstitutional a requirement that recipients of Communist literature notify the post office that they wish to receive it, thereby losing their anonymity);

5. ACLU of Georgia v. Miller (N.D. Ga. 1997) 977 F. Supp. 1228 (striking down a Georgia statute that would have made it a crime for Internet users to “falsely identify” themselves online).

Question: Aren’t people required to explain why they’re subpoenaing my identity and other information?

Answer: Not with the initial request. The reasons for the subpena are only provided if the subpena is challenged, through a motion to quash. In opposing the motion to quash, the person seeking the information must demonstrate, at a minimum, that it is likely to lead to the discovery of information that would be useful in a lawsuit.

Question: I signed a confidentiality/privacy agreement with my ISP that provides that they will not release my information. Doesn’t that protect me?

Answer: No. Most privacy agreements state that information will be turned over in response to legal requests, and a subpena is such a request. Even if the agreement does not say so, a legally issued subpoena overrides such agreements as a matter of public policy. Each ISP has a different policy about notifying users when their information has been subpoenaed, but they cannot simply ignore a subpoena under the law without risking legal santion themselves.

Question: What does "respond" to the subpena mean?

Answer: Usually, it means that the ISP will give the requested information to the requesting person. In some cases, ISPs have resisted requests for information on behalf of their customers, but this is not the norm. Unless specifically told differently by your ISP, you should assume that your ISP will turn over your information as part of its response.

Question: Can an ISP or the host of the message board or chat room be held liable for defamatory of libelous statements made by others on the message board?

Answer: No. Under 47 U.S.C. sec. 230(c)(1): "No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider." This provision has been uniformly interpreted by the Courts to provide complete protection
against defamation or libel claims made against an ISP, message board or chat room where the statements are made by third parties. Note that this immunity does not extend to claims made under intellectual property laws.

Question: Can my ISP or the host of a message board be held liable for defamatory statements I make on the grounds that they are a "publisher" or "republisher" of the information?

Answer: No. Federal law provides: "No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider." This has been interpreted to protect hosts of discussions between other people against defamation and libel claims as a "republisher" of the information. Note that this protection does not extend to claims under intellectual property laws.

Question: Must an ISP or message board host delete postings that someone tells him/her are defamatory? Can the ISP or message board delete postings in response to a request from a third party?

Answer: 47 U.S.C. sec. 230 gives most ISPs and message board hosts the discretion to keep postings or delete them, whichever they prefer, in response to claims by others that a posting is defamatory or libelous. Most ISPs and message board hosts also post terms of service that give them the right to delete or not delete messages as they see fit and such terms have generally been held to be enforceable under law.

Question: My ISP tells me it's been asked to turn over my name as part of a lawsuit against hundreds of "John Does" in a faraway state. What can I do?

Answer: You should probably contact a lawyer, and suggest that the lawyer take a look at arguments raised by the EFF, ACLU, and Public Citizen in one of these suits (e.g.,http://www.eff.org/IP/P2P/RIAA_v_ThePeople/JohnDoe/20040202_UMG_Amicus_Memo.pdf)

Need to protect your reputation? Check out Frontdesk's Reputation Protection for Physicians