Legal issues complicate cosmetic laser treatments

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Legal issues complicate cosmetic laser treatments
Jun 1, 2006
John Jesitus
Dermatology Times

Common legal issues facing physicians who perform cosmetic laser treatments include medical malpractice, as well as issues related to physician extenders and the Health Insurance Portability and Accountability Act (HIPAA), an expert says.

With any cosmetic laser treatment, potential negative outcomes include erythema, pigmentation problems, infection and scarring, says David J. Goldberg, M.D., J.D., director of Skin Laser & Surgery Specialists of New York and New Jersey.

However, he says that redness and hyperpigmentation almost never lead to legal problems.

"By the time (a case) tracks through the legal system," Dr. Goldberg explains, "those issues have resolved themselves, so they never really turn into successful lawsuits against the physician or physician extender."

LEGAL TROUBLE

More important, from a legal standpoint, are potentially permanent problems related to infection, scarring and pigmentary loss, he adds.

"Anything that can be permanent can lead to a successful malpractice case," Dr. Goldberg says.

In such cases, he says that attorneys analyze their odds of success against a physician by considering four elements: duty, breach of duty, causation and damages.

Dr. Goldberg says duty simply means that the doctor or physician extender is required to perform what is considered the reasonable duty in a given clinical circumstance.

"What that means in English is that if a dermatologist is performing a cosmetic laser treatment, then that dermatologist is required to act like any other dermatologist in performing that treatment," he explains.

But more importantly, he adds, "If a physician extender, or for that matter a gynecologist, is performing the cosmetic laser treatment, they will be held to the same standard as the dermatologist." For example, he says that if an aesthetician is performing laser hair removal that goes wrong, the aesthetician can't claim that because he or she is not a dermatologist, one can't hold the aesthetician to the same high standard as one would a dermatologist.

"Everybody is held to the same duty," Dr. Goldberg says.

When breach of duty occurs, he continues, it leads to legal trouble only if there is a connection between that breach of duty and damages.

"That connection is known as causation," Dr. Goldberg says. Damages most frequently involve economic or monetary losses, he adds. "And scarring, by definition, is legally considered a money loss."

A person with scars, he notes, often loses money on the job because people won't look at that person as they once did.

Dr. Goldberg says a particularly common source of legal problems is laser eyebrow sculpting, a procedure many dermatologists continue to perform. He says the theory behind such treatments is that pigment in the eyebrows should absorb laser light.

"The problem is that the iris also contains pigment. And it's virtually impossible to shield that pigment from absorbing the light," which can lead to distortion of the iris and pupil, he says. "Therefore," he says, "the duty is not to treat eyebrows. The breach is that someone did. And the damages are potentially permanent distortion of vision."

PHYSICIAN EXTENDERS

As for physician extenders, Dr. Goldberg says legal issues are becoming more common because physicians are relying increasingly more heavily upon them in the nearly 40 states where physician extenders may perform cosmetic laser treatments.

According to the American Society of Plastic Surgeons, the number of laser hair removal procedures performed in 2000 was approximately 750,000. Of these, Dr. Goldberg says, almost none were done by physicians.

Additionally, a 2002 American Academy of Dermatology practice profile survey shows that one-third of dermatologists also use physician extenders.

"These figures convey a sense of how frequently non-physicians are doing these procedures, and, therefore, the potential for lawsuits," he says.

Dr. Goldberg says that invariably, should something go wrong, "Because that physician extender works for the doctor, the doctor would be held responsible for the actions of the physician extender."

From a legal standpoint, he explains, their relationship is one of master and servant.

STATE REGULATIONS VARY

Who can perform what procedures varies state to state, Dr. Goldberg adds. And sometimes, various boards within a state disagree, he says. For example, a doctor's state medical board might prohibit physician extenders from performing cosmetic laser treatments, while the same state's nursing board might permit nurses to do them.

"Since the nurse is working for the doctor," he says, "ultimately, the doctor is held responsible," so medical board regulations would supersede those of the nursing board.

Currently, Dr. Goldberg says that both the American Society for Laser Medicine and Surgery and the American Society for Dermatologic Surgery offer guidelines that allow non-physicians to perform cosmetic laser treatments, but only in states where this is allowed, and only under direct physician supervision.

"This means the physician must be on site and immediately available if there's a problem," he explains.

Nevertheless, Dr. Goldberg says, "Guidelines are not law. But they eventually tend to get to legislators, who sometimes change the law" in accordance. For such reasons, he says that going forward, "The field is moving toward more legislation and regulation dictating who can perform these procedures and under what circumstances."

Regarding HIPAA, Dr. Goldberg says, "There's a perception among physicians that cosmetic laser treatments are essentially spa treatments. Therefore, confidentiality is not required to the same degree it is required in a medical office."

However, he says that even if such treatments are performed in a spa-like environment, "The same strict rules of confidentiality are required."

Disclosure: Dr. Goldberg reports no financial interest relevant to this article.