The opinion
Third District Court of Appeal
State of Florida
Opinion filed August 10, 2022.
Not final until disposition of timely filed motion for rehearing.
________________
No. 3D22-1050
Lower Tribunal No. 64B8ER22-3
________________
Sergio Alvarez, M.D., et al.,
Petitioners,
vs.
Florida Department of Health, Board of Medicine,
Respondent.
A Case of Original Jurisdiction – Petition for Review.
Bruce S. Rogow, P.A., and Tara A. Campion (Boca Raton); Bruce S.
Rogow, P.A., and Bruce S. Rogow (Cedar Mountain, NC), for petitioners.
Marlene K. Stern, Senior Assistant Attorney General, and Donna
Canzano McNulty, Special Counsel, and Edward A. Tellechea, Bureau
Chief, Administrative Law (Tallahassee), for respondent.
Before LOGUE, HENDON, and GORDO, JJ.
LOGUE, J.
Petitioners are seven Board Certified plastic surgeons living and
practicing in Miami-Dade County, Florida, who perform gluteal fat grafting
procedures, and “Surgeons for Safety, Inc.,” a non-profit corporation
representing plastic surgeons in the State of Florida. Petitioners challenge
the Florida Department of Health, Board of Medicine’s June 14, 2022
Emergency Rule 64B8ER22 which, for the next ninety days, limits gluteal fat
grafting office procedures to three per day, and requires the use of
ultrasound guidance in performing the procedure. Gluteal fat grafting
involves the transfer of fat from one part of the body to another for cosmetic
purposes. It is used, for example, in the procedure popularly known as a
“Brazilian Butt Lift.”
Emergency rules are authorized under section 120.54(4), Florida
Statutes, and are required to contain “the specific facts and reasons for
finding an immediate danger to the public health, safety, or welfare and [the
agency’s] reasons for concluding that the procedure used is fair under the
circumstances.” Immediate review of such rules is authorized by section
120.68(1)(b), Florida Statutes. Such review is limited to the four corners of
the emergency rule. Ass’n of Homes and Svcs. for Aging, Inc. v. Agency for
Health Care Admn., 252 So. 3d 313, 316 (Fla. 1st DCA 2018).
2
Looking at the four corners of the rule, the stated purpose of the rule is
to address the fact that “a higher mortality rate [is] associated with gluteal fat
grafting than with any other aesthetic surgical procedure.” There have been
“ten (10) verified deaths related to gluteal fat grafting in the 36 months [prior
to the adoption of the emergency rule].” Florida Department of Health, Notice
of Emergency Rule 64B8ER22-3 “Standard of Care for Office Surgery (June
14, 2022). The procedures are “commonly performed in office surgery
facilities” and there continues to be “an unacceptable number of fatalities
related to gluteal fat grafting procedures performed in Florida’s office surgery
facilities.” Id. The mortalities trace back to the accidental injection of fat below
the superficial gluteal fascia. Id. In promulgating the rule, the Board adopted
recommendations made by national organizations of medical professionals
involved in cosmetic surgery. Id. Using ultrasound to guide the injection of
the fat is intended to help the surgeon avoid accidently crossing the fascia
when injecting fat. Id. The limitations on three procedures per day is intended
to avoid fatigue as the procedures take three hours with an additional one
hour required to turn around the operating room. Id.
The Petitioners question whether the number of mortalities constitute
a sufficient emergency, where there has been no attempt to quantify the total
number of procedures. We do not believe we are in a position to second
3
guess the Board of Medicine’s judgment concerning the number of
acceptable deaths involved in purely elective cosmetic surgeries. In addition,
the rule contains plausible and rational statements for the requirement it
imposes. Given the limited nature of our review, we are required to deny the
petition.
4