NOV-DEC 2016

MedEsthetics—business education for medical practitioners—provides the latest noninvasive cosmetic procedures, treatment trends, product and equipment reviews, legal issues and medical aesthetics industry news.

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Page 17 of 75

LEGAL ISSUES 16 NOVEMBER/DECEMBER 2016 | Med Esthetics aimed at both men and women have no scientifi c support and cites specifi c examples of therapies that, it claims, are not proven to have any infl uence on the aging process. These include human growth hormone (HGH), melatonin, dehydroepiandrosterone (DHEA) and testosterone. Further- more, the FTC cautions patients that use of these therapies may carry signifi cant risks. Another target of the FTC is weight loss products and dietary supplements. This is based on the FDA's ruling that it is "not legal to market a dietary supplement product as a treatment or cure for a specifi c disease, or to alleviate the symptoms of a disease." While the FTC and the FDA typically focus on pharma- ceutical companies and manufacturers, they also moni- tor the actions of physicians through online searches and consumer complaints. If a medical practice is advertising a treatment—such as vitamin infusions, HGH or bioidentical hormones—and promoting physical health benefi ts, the FTC can act. For instance, a doctor in Washington was sanctioned for infusing patients with hydrogen peroxide and micro- nutrients as a treatment for heavy metal toxicity, since there was no proof that such a combination was effec- tive. Another doctor received a warning letter from the FDA after the FDA and the FTC reviewed his website and determined that he was promoting a product, "Immune Support Formula," that violated the FD&C Act. More generally, the FTC has cautioned that "it is against the law to make or exaggerate health claims, whether directly or indirectly, through the use of a product name, website name, metatags, or other means, without rigor- ous scientifi c evidence suffi cient to substantiate the claims." MALPRACTICE CONCERNS Aside from the FTC, physicians who offer alternative therapies are at risk of facing medical malpractice claims, which are diffi cult to defend in these cases because there is no standard of care by which the physician can be judged. One basis for proving negligence in a medical malpractice case is whether the treatment deviates from accepted medical standards. Since alternative medicine necessarily deviates from the traditional standard of care, it is seemingly impossible for a practitioner of alternative medicine to prevail on that question. In order to address this issue, some state medical boards have begun to regulate alternative medicine by introduc- ing legislation under Health Freedom laws, developed to protect physicians who may be pursued solely based on their use of alternative therapies. The Texas Medical Board developed a regulation for physicians who practice complementary and alternative medicine. It provides that: A licensed physician shall not be found guilty of unprofes- sional conduct or be found to have committed professional failure to practice medicine in an acceptable manner solely on the basis of employing a healthcare method of complementary or alternative medicine, unless it can be demonstrated that such method has a safety risk for the patient that is unreasonably greater than the conventional treatment for the patient's medical condition. The regulation provides a list of guidelines it will use to determine whether a physician's conduct violates the Medical Practice Act. Among the exhaustive list, one of the guidelines is whether the drug, supplement or remedy employed was "approved for human use by the FDA." -OXFORD- © GETTY IMAGES e FTC has cautioned that "it is against the law to make or exaggerate health claims, whether directly or indirectly ... without rigorous scientifi c evidence."

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