To Regulate or Not to Regulate—That Is the Question

Mark Gorney, MD, Napa, CA, is a board-certified plastic surgeon ana an ASAPS member. He serves on the Board of Governors of The Doctors' Company of California, the nation's largest doctor-owned malpractice insurance company. He also serves as chairman of the company's Risk Management Committee and is Consulting Medical Director.

I used to believe that it is not the malpractice insurance carrier's place to tell a practitioner how to do his or her “thing,” and that if physicians are good enough to be approved by their carrier's underwriter, they ought to be allowed to run their practices without interference. Whereas there was no reason to vary from this policy in the past, today it is valid only up to a certain point. It should be evident that when a policyholder begins to do something that will clearly have an unfavorable impact on the loss experience of his or her peers (and possibly affect their premium rating), the managers of the insurance company are obligated to intercede on behalf of the entire specialty group.

The losses of a prudent, well-managed insurance company cannot exceed the combination of premium intake plus moneys earned from invested reserves. Otherwise, the only alternative is to raise premiums or face the possibility of gradual extinction. Any insured specialty group must be accountable for its own loss experience. With larger insured groups the losses can be spread more widely and will have less of an impact on individual policy-holders. The reverse, however, is also true. Relatively speaking, plastic surgeons are a small group compared with many other specialties.

These issues raise some important questions. Which should take precedence—the insurance company's obligation to the individual practitioner or its obligation to the specialty group? Is a carrier obligated to impose reasonable restrictions or guidelines regarding procedures that are new, experimental, potentially dangerous, or by their very nature inadvisable? If setting such guidelines is the carrier's responsibility, who should make these decisions? If use of a particular procedure or technique continues to result in large losses as a result of repetitive errors, who should impose the mandated change? The logical answer is the specialty's governing body, that is, its certifying board or national society. However, because litigation is thought to be the solution to almost any conflict in the United States, most such governing bodies are fearful of being sued and understandably are hesitant to make any but the vaguest response. Who else then but the malpractice insurance company can or will monitor questionable medical practice activities?

On the occasions that The Doctors' Company has encountered this dilemma (with liposculpture, penile enhancement, laser aesthetic surgery, endoscopie aesthetic surgery, and ultrasound-assisted lipoplasty qualifications, for example), we have mandated minimum, common sense guidelines. As the specialty's experience with a particular technique evolved, we were able to eliminate these guidelines. The net effect, almost across the board, was a more favorable loss experience compared with most other carriers. It is interesting to note, however, the sharp division of opinion among our insured aesthetic surgeons with regard to whether the carrier is well advised—or even has the right—to take such action. For the most part, we found that the number of surgeons who were in favor of the policies was greater than the number who were against them.

I am certain that the readership of Aesthetic Surgery Journal will be divided in opinion with regard to if and when insurance carriers should intervene with restrictive guidelines. However, it behooves all policyholders to make certain that their carrier involves their peers—colleagues certified by their recognized board—in the procedural review aspect of its activities. If your insurance company provides you with the right to appeal these types of restrictions, then you need to know on whose opinion the final decision depends.