The surgeons, who practice in Miami-Dade County, and the group Surgeons for Safety, Inc., filed the challenge Monday in the 3rd District Court of Appeal after the Florida Board of Medicine approved the emergency rule June 3.
The rule limits surgeons to performing three of the procedures a day and requires that they use ultrasound. The procedures, more technically called gluteal fat grafting, involve injecting fat to enlarge or reshape patients’ buttocks.
“Gluteal fat transfers are not per se dangerous,” attorneys Bruce Rogow and Tara Campion wrote in a petition filed at the South Florida appeals court. “If improvements in carrying out the procedures were to be considered, there was no justification for doing so by emergency rule.”
But the rule pointed to 10 verified deaths during the past three years of patients who underwent Brazilian butt lifts. It also cited an emergency rule passed by the Board of Medicine in June 2019 to try to bolster safety of the procedures.
“The board continues to believe that an outright ban on gluteal fat grafting procedures is not necessary, but the fact that there has been at best a de minimis reduction in the number of deaths related to gluteal fat grafting during the 36 months following the board’s June 17, 2019, emergency rule, leads the Board of Medicine to conclude that the status quo is unacceptable and that it continues to present an immediate danger to the health, safety and welfare of Florida’s patients,” the new emergency rule said.
Brazilian butt lifts have drawn widespread attention in recent years, with Board of Medicine member Kevin Cairns saying during the June 3 meeting that Florida has become “ground zero” for the procedure.
“And what … we see is, patients from all over the country are flying to, often, South Florida,” Cairns said, according to a transcript of the Board of Medicine meeting filed with the legal challenge. “They're bringing a suitcase, and the first time they're meeting their surgeon is when they … appear at office surgery.”
In limiting surgeons to performing three Brazilian butt lifts a day, the emergency rule cited decreasing surgeon fatigue and distractions to minimize errors. But the legal challenge described the limit as arbitrary, as surgeons could perform other procedures on the days they do Brazilian butt lifts.
“If ‘fatigue’ was the theoretical basis for the ‘emergency’ limitation, the limitation is neither rational nor fair,” the challenge said. “Especially where there has not been a proper, full opportunity to be heard with relation to the consequences — practical, economic, safety and patient welfare-wise.”
The emergency rule would require the use of ultrasound to help guide cannulas, which are instruments used in injecting fat. But the challenge said using ultrasound, in part, would require adding equipment and training.
“The ultrasound rule is demanding that the procedures be done in a way that surgeons have not been trained to do,” the surgeons’ attorneys wrote. “In order to incorporate ultrasound use into gluteal fat transfer procedures surgeons would need additional training because ultrasound is not a technology used in plastic surgery. Nor is ultrasound taught as a technique to be used.”
In a prepared statement Tuesday, Rogow said emergency rules "should not be used in this manner or enacted with broad sweeping changes and little evaluation or consideration of the impacts."
“The emergency rule does not promote safety; it actually threatens patient safety by imposing an unproven, radical departure from accepted techniques for performing gluteal fat transfers," Rogow said. "The Board of Medicine has created an environment that is contrary to all that has been taught over the past 10 to 15 years. No evidence or medical data supports the promulgation of this emergency rule."
But the rule said the Board of Medicine is “of the opinion that its actions are a measured regulatory approach that protects Florida’s patients while maintaining the availability of this popular aesthetic surgical procedure.”