Lack of Regulations Sparks Cosmetic Surgery Turf War : Health: The field's sole requirement is an MD license. Doctors clash over who is qualified to do the procedures.

By ROBERT SCHEER

Dec. 23, 1991 12 AM PT

TIMES STAFF WRITER

Southern California has a reputation for imaginative charity bashes, but the cystic fibrosis fund-raiser of 1986 in Newport Beach set a new standard.

Not only was the program interrupted by a surprise stripper, but one of the items on the block in the evening’s auction was the services of Dr. Michael Elam, the much-sought-after cosmetic surgeon responsible for Phyllis Diller’s latest face.

Elam stood and pointed out some of the proud beneficiaries of his work in the audience and several women rose, taut of face with augmented chests held high, to reveal medical miracles that are now routinely performed and--to the approving crowd that night--apparently risk free.

But last year Elam’s license to practice medicine was revoked, in a rare action by the Medical Board of California, on charges of malpractice and insurance fraud.

The case reveals a growing split in the medical community over safety, standards and ethics in the largely unregulated field of cosmetic surgery. Elam, a past president of the American Society of Cosmetic Surgery (the “cosmetics”), claims he was done in by a rival medical faction--members of the American Society of Plastic and Reconstructive Surgery (the “plastics”)--in an unseemly battle over what may be modern medicine’s largest pot of gold.

“I’m the victim of a turf war over who has the right to perform cosmetic surgery, which is the most lucrative field in medicine,” says Elam, who is appealing the case. “It’s the last place that we have independence because, since it’s elective surgery, we’re not under the dictum of a hospital, insurance company or other outside groups.”

To some, that’s just the problem. Cosmetic surgery, largely elective and performed in outpatient settings, is strikingly free of regulation either by the government or by the private sector. As a result, virtually any such surgery may be performed by the holder of an MD license no matter what his or her specialization, making it difficult to establish common standards.

The expert witnesses against Elam were “plastics” who had completed a residency and passed boards in general plastic surgery. They claimed Elam botched a “tummy tuck,” gave a patient cheek implants she did not want and fraudulently described operations as medically necessary in order to claim insurance payments. “He changed a Mrs. America runner-up into a recluse who hides in her house,” claims Dr. Robert Minor, a “plastic” who was the chief medical witness for the state.

Scores of physicians, most of them “cosmetics,” meaning that their surgical training was in branches of medicine other than plastic surgery, have rallied to Elam’s defense. They contend that the case against him was based on two old complaints out of 5,000 operations over 10 years, that the insurance company did not challenge his claims and that the dissatisfied patient went on to win the Mrs. California contest--after his surgery. Elam, who is board certified as an ear, nose and throat specialist, argues bitterly that patients have died following surgery performed by “plastics” without any official consequences.

The internecine warfare among medical specialties has led to a bewildering array of claims to legitimacy that must be sorted out, without government guidance, by potential patients who often have limited knowledge of the serious risks involved.

“Untold numbers of patients seeking the fountain of youth through a face lift, a tummy tuck or an acid peel sometimes get more than they bargained for,” Rep. Ron Wyden (D-Ore.) warned last April at a hearing of the subcommittee on regulation of the House Committee on Small Business. “Suffering, infection, stroke and occasionally death (follow) procedures that are advertised as safe, easy and painless.”

As Wyden’s statement suggests, the medical questions associated with cosmetic surgery go far beyond the much-publicized issues of the safety of breast implants, which the Food and Drug Administration has recently been investigating. The FDA has jurisdiction only over medical products, not over physicians’ medical practices. Neither the FDA nor any other government agency, state or federal, regulates the surgical work of physicians or the clinical setting in which it is done.

For most surgery, such regulation is provided largely by the standards set by hospital boards and by the insurance companies that pay for it. But 80% of cosmetic surgery is performed in doctors’ own clinics and other outpatient settings where hospital regulation does not apply. And since most cosmetic surgery is not insured, doctors have no need to prove to insurance companies that patients are ill and in need of medical treatment. In fact, cosmetic surgery involves the reverse--making healthy people temporarily unwell--and it is being performed today by doctors who may or may not be trained adequately for the procedures involved, often in office operating rooms that are not required to meet even the sanitary codes demanded of a doughnut shop.

“(In) restaurants, the facility, the kitchen, the whole thing, probably even the width of the door, is subject to all kinds of regulations,” observes Kenneth J. Wagstaff, executive director of the Medical Board of California. “But there’s no proactive way that the government has of telling the doctor this is how to have a sterile office, how he shall train his staff.”

In California, in fact, the definition of a doctor’s office is vague enough to include square-block facilities that look like small hospitals. As long as the MD claims it as his or her office, the state accepts that definition, even if it contains multiple operating rooms.

As a result, Wagstaff says, “there currently is no legal requirement for either licensure, peer review or accreditation” for outpatient surgery in California. He adds that plastic, cosmetic and liposuction procedures “are routinely performed in small clinics or private physicians’ offices. . . . In these situations, there may be no quality assurance other than the physician’s own self-regulation.”

Nationally, this loophole in regulation has been documented in detail during three years of hearings by Wyden’s House subcommittee, but during all that time the committee has not managed to introduce a bill to curtail abuses. The opposition of the powerful medical lobby, with influential physician members in every congressional district, has been fierce, according to a committee staff member.

Wyden observes that the vast majority of physicians “are honest, decent and caring. But for the significant minority who aren’t, outpatient or free-standing clinics are a natural place to set up shop. The lack of peer review, accreditation procedures, training requirements or even minimal quality assurance programs give questionable medical providers an open field to ply their trade.”

Wyden cited one case in which a Southern California doctor allowed his bookkeeper to administer general anesthesia during an office surgery. The patient died. The doctor broke no law, because his MD license makes him the law in his own office. In a second instance, a doctor whose training in chemical face peels consisted of only a weeklong seminar, “cooked” the patient’s skin and left her appearing “like a monster.” Another witness before the committee had suffered a stroke after an unqualified surgeon had performed a “tummy tuck.”

But who is “qualified?” Current law provides no guidelines other than the requirement of an MD license.

“It is perfectly legal in this country for a dermatologist to do brain surgery in his garage if he can find a patient that is willing to get on the table and pay for it,” says Frank A. Papineau, an acting congressional investigator for the General Accounting Office. Wagstaff of the state medical board agrees: “If you are an MD, under law technically read, you can do anything.”

Brain surgery, however, probably would not be performed in a garage or even an office operating room because the insurance companies or Medicare would not pay for it. Standards for most non-elective outpatient surgery are set indirectly by the agencies that must meet the bills. That would extend to all the requirements for a safe surgical environment. But most cosmetic surgery, being uninsured, is free of such restraints.

Historically, the medical profession has justified the wide latitude doctors are given as a natural perquisite of their training. The doctor is presumed to be the knowledgeable and ultimate authority concerning what transpires in his or her operating room. But with the recent proliferation of outpatient surgery, an increasing number of physicians have called for government regulation.

Some surgeons voluntarily apply for accreditation for their offices from private organizations that offer a measure of supervision. But many do not and none are required to. According to Dr. Gustavo Colon, the president of the American Assn. for Accreditation of Ambulatory Plastic Surgery Facilities, an umbrella group attempting to provide such accreditation:

“Even tattoo artists, hairdressers and manicurists need licensing and/or health board examination to practice their specific art, while a physician who decides to perform surgery in his office currently does not need licensing for any specific procedure.”

Doctors who defend self-regulation respond that they are themselves held responsible, being liable to lawsuits, loss of license and even criminal penalties if something goes awry. They cite their extensive training, residencies, peer group certification by academic, state and professional boards as justification of their authority.

The problem, however, critics argue, is that in the area of cosmetic surgery, there is no standard test of knowledge and accomplishment to which all must adhere.

In this rapidly evolving field, some procedures have become popular after many physicians completed their medical training. A weekend course in the midst of a ski excursion sometimes suffices for formal training in what are complex and potentially dangerous procedures.

While it is legally permissible, should a gynecologist augment breasts, a dermatologist lift the face or an ear, nose and throat specialist be engaged in liposuction? Who are entitled to call themselves cosmetic or plastic surgeons?

Surgeons certified by the American Board of Plastic Surgery are adamant in insisting that they are the only ones entitled by virtue of their specialized training to the designation “plastic surgeon.” Indignant about the sudden rush of physicians from other specialties into what they feel is their domain, these surgeons, who belong to the American Society of Plastic and Reconstructive Surgeons, have fought a well-financed campaign to expose what they consider to be the sham credentials of their rivals.

Other specialists--dermatologists, ophthalmologists and otolaryngologists (ear, nose and throat doctors), for example--tend to be grouped in societies bearing the designation “cosmetic” rather than “plastic” or “aesthetic.” They strike back with the claim that they are often certified by their own recognized specialty boards, and that they have indeed received advanced training in this field and may have more operating room experience.

For example, ear, nose and throat surgeons argue that they are more qualified to do a nose “correction” than plastic surgeons with their more general training.

These issues are not easily resolved. Liposuction, an amazingly popular procedure in which fat is sucked out of offensive bulges, is now often being performed by physicians with limited training, and there have been cases in which injuries to vital organs occurred or too much fat was removed. But when plastic surgeons contend that they alone should perform the procedure, others point out that liposuction was pioneered in the ‘70s by a French abortionist and popularized in this country by “cosmetic” surgeons.

Dermatologists claim liposuction as their natural area of expertise, relating as it does to the fatty tissue under the skin, rather than to underlying structure. Plastic surgeons, though most were not trained in the discipline as students, scoff at that and profess themselves frightened at the idea of people of limited surgical training cutting into the body.

The plastic surgeons have found allies for their claims that problems arise from specialists in other fields exaggerating their competence. For example, Wagstaff of the state medical board says that in one instance a Los Angeles physician who advertised himself as a “board certified” specialist in “plastic reconstruction” was, in fact, an ear, nose and throat doctor with “little advanced training in plastic surgery.” The result, he says, was that “he disfigured several people and killed one.”

Wagstaff adds that he finds the designation “board certified” meaningless because “an American Society of ‘cosmetic this-or-that’ or International College of ‘whatchamacallit’ that has no rigorous training requirements may form a nonprofit corporation and ‘certify’ whom they please.” But some leading cosmetic surgeons reply that they consider Wagstaff and the state board to be overly influenced by the plastic surgeons’ well-financed lobby.

The case for the “plastics” is made by Dr. Martin P. Elliott, a plastic surgeon in Orange County who served seven years of internships and residency in his field and who is certified by the American Board of Plastic Surgery.

“Yes, of course there’s a tremendous amount of inferior work. There’s a tremendous amount of work being done under less than ideal conditions,” he says. “We have dermatologists and general practitioners and chiropractors, everybody’s trying to do plastic surgery. There’s no way to absolutely prevent it because this is a field where you can do the surgery outside of the hospital environment for the most part and there is no regulation whatsoever.”

The counter argument is that plastic surgeons such as Elliott are simply attempting to corner a lucrative market.

That is the view of Dr. George Brennan, past president of the American Academy of Cosmetic Surgery, an organization created to do battle with the plastic surgeons’ group in which Elliott is active.

Brennan points out that as an ear, nose and throat specialist, he is certified by a board accredited by the American Medical Assn. before the plastic surgery board even existed. He argues that cosmetic surgery of the face, particularly rhinoplasty (nose construction) is definitely covered in his training and falls logically within his expertise.

“For a while everybody minded their own business and behaved in a professional, ethical manner and did the plastic surgery that relates to their domain. But the plastic surgeons started a war and they had a very well thought out plan. . . . “ he says. “There are great dermatologists and there are great plastic surgeons and there are lousy plastic surgeons. It is not as clear an issue as everybody would like it to be. These people are so brainwashed that they always look at the opposition as if they were fighting a war. . . . It is a brainwashing method they use even on their residents.”

Brennan backs up his charge on the brainwashing by reference to a “White Paper” issued in 1988 by the then-executive director of the American Society of Plastic and Reconstructive Surgeons. The language of the memorandum has the ring of guerrilla warfare:

“We must plan a course of action that will allow us to stall as long as we can, neutralize their leadership. . . . In short, our plan must consist of a stalling mechanism that will force all of their efforts into one level. On another level we must make it appear that we are working with them to improve their educational and knowledge background. . . . This appearance must be presented to members of the out group. . . . “

The plastic surgeons’ association now claims the paper was the product of one man, who has since been dismissed.

Brennan charges that the “plastics” are attempting to create an unwarranted monopoly, using a propaganda campaign and pressure on state legislators.

“There are so many supposedly well-trained, board-certified plastic surgeons who have lost patients,” he says. “For example, a doctor in Oakland did a liposuction and she happened to pierce the liver and the spleen and the lung and so on. There is a plastic surgeon in Beverly Hills who put a muscular implant inside the chest! I could go on and on. . . . They have this notion that they are ordained by some super power to be able to do all the surgery that they think is needed and that they have no human frailty. That’s total bull.”

However, the California Legislature in its only action to date to regulate this field, adopted standards for advertising proposed by the “plastic” surgeons, which Brennan’s organization of “cosmetics” opposed as an arbitrary restraint of trade. Beginning next month, only board-certified plastic surgeons will be able to advertise themselves as such.

Whatever its merits, the new California law is the first step toward re-regulation of medical advertising. Nationally, such regulation has been largely suspended during the past decade and that has led to a barrage of aggressive ads that now inundate tonier local magazines and reach into mainstream newspapers.

They generally feature photos of women’s breasts and buttocks in before and after poses, and often imply that the procedures involved are painless and risk free. Every surgeon interviewed agreed that was misleading as a description of major surgery, but often their own advertising belied their concern for accuracy.

Not surprisingly, cosmetic surgeons, who are certified by their own medical boards, have been critical of the new law. “There is an intense political effort on the part of the plastic surgeons to inhibit dermatologists from getting any kind of surgical privileges,” says Dr. Jeffrey Klein of Irvine, a dermatologist who pioneered a widely used liposuction procedure. “Their argument is that dermatologists don’t have surgical training. Forty percent of dermatology is, in fact, surgical.”

Klein, who uses local anesthesia in liposuctions and even in face lifts, defends his procedures as safer than the full anesthesia employed by the plastic surgeons. He argues that anesthesia is the cause of most problems in surgery and that the risks have been “hushed up.”

“The complications in outpatient facilities, which is where most cosmetic procedures take place, are a result of anesthesia leading to cardiac problems. How many of these guys (the plastic surgeons) know how to read an EKG, let alone take care of a cardiac arrest?”

Klein has been attempting to track deaths from plastic surgery procedures but finds it difficult to obtain the necessary data because “deaths in ambulatory surgery settings are not reportable in California, so we don’t know what the causes are. The coroner gets it, but it’s not reportable to the state. The only way to dig out all that data is to go to every coroner’s office and to ask them for the records of all the deaths that have occurred.”

“I know one doctor in Orange County that had a patient that died two days after a face lift. It was hushed up. That happens all the time throughout California, throughout the nation, but it’s not reportable, but whatever the cause of that was, we just don’t know.”

In a letter sent to Klein, in April, 1990, the board’s chief of enforcement wrote: “I regret that the Medical Board of California does not compile statistical data concerning deaths which occur during ambulatory surgery . . . I am at a loss to suggest another source where you might find the data you seek.”

As Klein’s remarks indicate, the civil war between the plastic surgeons and their competitors has produced a climate marked by wild charges of incompetence, claims of omniscience and enormous confusion for the patient.

“What has happened now is that the public really cannot rely on board certification anymore,” says Elliott. “In order to create a board, all you have to do is incorporate yourself and call it a board.”

There does seem to be general agreement that self-regulation has failed and that there is a need for government standards for both physicians and their operating rooms. “It’s my feeling that within the next five years we will have regulation,” says Elliott. “I’m welcoming it with open arms. This is a situation where people say, ‘Well, you haven’t regulated yourselves.’ We are unable to regulate ourselves, we have been legislated out of the ability to regulate ourselves. Every time we try we get shot down. The argument is that it’s a turf war for money. I suppose that is a portion of it, but there is the other aspect of it--that you shouldn’t be doing something for which you don’t have the training.”

The confusion about what is valid training makes it extremely difficult for the patients in this exploding market, to decide intelligently about which procedures and practitioners are safe and wise. Clearly, just calling for accuracy in advertising, as the California Legislature did, does little to solve the overall problem of regulating an aggressive medical industry that appears to be driven by a gold rush fever.

Times researcher Nina Green contributed to this story.