Laser skin surgery has been a popular treatment for aesthetic and medical reasons for the last two decades. From removing aesthetic imperfections, like acne scars and lines, to neutralizing cancerous skin tumors, laser skin surgery remains a popular procedure. Many patients go into this procedure with the same casual attitude as they would a haircut as it is often not distinguished from less risky salon treatments. The reality, though, shows that this is a precise procedure often vulnerable to error.
Legal action arising from laser skin surgery injuries has steadily increased since its beginning 20 years ago. According to a study published in JAMA Dermatology, Plaintiffs filed 174 cases seeking compensation for injuries sustained from laser skin surgery from 1985 to 2012.
Causes of action and fact scenarios in these lawsuits reveal shortcomings in regulation and training. This upward trend in litigation will likely continue unless laser skin surgery is treated more like a medical procedure and less like an aesthetic service.
Laser Skin Surgery Procedures
Laser skin surgery covers a variety of procedures including laser hair removal and laser skin resurfacing, also called skin rejuvenation. Lasers remove lines, acne scars, blotches, tattoos, and vascular lesions by removing the damaged skin one layer at a time. Procedures require 30 to 45 minutes with a whole-face treatment lasting almost two hours.
After treatment, the patient feels itching for 12 to 72 hours and five to seven days following the procedure, the skins dries and peels revealing a younger and firmer surface.
Risks from laser skin treatments include burns, more scarring, changes in pigment, and bacterial infections.
Causes of Action
Hair removal and facial rejuvenation were the most litigated procedures. Most common injuries included burns, scars, pigmentation, disfigurement, and emotional distress. (See Table 4 of the JAMA Dermatology report.)
A lawsuit cannot be filed unless the plaintiff has a cause of action or a suitable legal theory to base their civil complaint. The most common specific causes of action for laser skin surgery injuries include:
- Lack of Informed Consent. Informed consent is a theory in medical malpractice litigation claiming that the patient was unaware of the risks involved with a surgical procedure. Even if the Plaintiff signed consent forms before the procedure, a jury will scrutinize how the doctor or other medical personnel presented risks to the Plaintiff at the time of the procedure. It is often alleged that if other staff handled the informed consent procedures, they lacked the adequate education and training to help patients truly appreciate risks.
- Fraud. Alleged in 15% of laser skin surgery lawsuits, fraud claims involved representation of the qualifications of doctors and staff. Plaintiffs alleged facilities offering the treatment inflated the qualifications of their personnel.
Lawsuits are not exclusive with causes of action and normally name several. A lawsuit can contain one of the above or both, along with other claims including assault, infliction of emotional distress or the catch-all “other.” (Table 5, JAMA Dermatology report.)
The trend causing most concern in dermatology and cosmetic circles is the named defendants. While non-physician personnel only perform one-third of laser skin surgery procedures, they are defendants in a majority of lawsuits. In 2011, 78% of cases involved non-physician defendants with their supervising physicians named co-defendants under the theory of respondeat superior (employer liability for employee negligence). This is an increase of 38% since 2008.
Lack of hiring, training, and supervision of staff was the most commonly alleged fact supporting causes of action followed by improper operation of the laser. (Table 6, JAMA Dermatology report.)
Room for Improvement
The American Society for Dermatologic Surgery (ASDS) notes that laser hair removal in particular is often performed at non-medical aesthetic salons rather than medical facilities. Indicating that laser hair removal is a medical procedure, not just an aesthetic one, the ASDS blames inconsistent regulations concerning the true nature of these procedures. Most states are very vague on whether laser skin surgery is a medical or aesthetic procedure.
Doctor requirements also remain vague. Dr. H. Ray Jalian, a leader of the JAMA Dermatology study, stated to NBC News: “You literally can have no certification, no training and just hang up a shingle.”
Guidance and clarification are necessary as these lawsuits are often not decided in the service provider’s favor. Of the 174 lawsuits discussed in the JAMA Dermatology study, 59 were decided in favor of defendant with the rest settled in the plaintiff’s favor by out-of-court settlement, motion practice, or jury verdict.
Both untrained physicians and their staff are held to the same standard as highly-trained personnel. Taking a hard look at regulations and improving training will benefit both doctors and consumers by ensuring better product safety.