SAN DIEGO – Injuries and lawsuits related to laser cosmetic surgery are increasing and potential legal threats are not always easy to predict, according to two dermatologists who spoke at the annual meeting of the American Society for Laser Medicine and Surgery (ASLMS).
A laser procedure could go smoothly, for example, but the patient might be able to successfully sue if he or she is allowed to drive home after receiving a sedative. Or a physician might get sued because his or her nurse set a laser at the wrong setting and singed a patient.
The risk of a lawsuit is high, H. Ray Jalian, MD, a dermatologist in Los Angeles, said at the meeting. “The reality is that we’re all at some point going to face this.”
Dr. H. Ray Jalian
The most common procedure litigated was laser hair removal, making up almost 40% of the cases, which is not an indication that this particular procedure is dangerous, Dr. Jalian said. “It’s quite safe, and the complication rate is quite low,” but more of these procedures are being done, he noted. Rejuvenation procedures followed, accounting for 25% of cases.
The alleged injuries sustained from laser surgery included burns (47%), scars (39%), and pigmentation problems (24%). Deaths occurred in just over 2% of the cases. In the study, almost a third of plaintiffs alleged that they were not provided informed consent. Plaintiffs also alleged fraud (9%) and assault/battery (5%), and a family member occasionally sued for loss of consortium (8% of cases). The specialty with the largest percentage of the cases was plastic surgery (26%), followed by dermatology (21%).
Dr. Jalian and his copresenter, Mathew Avram, MD, JD, director of the Dermatology Laser & Cosmetic Center, and director of dermatologic surgery at Massachusetts General Hospital, Boston, offered these lessons about the legal risks associated with laser procedures:
• You may have a duty to protect your patient from bad choices.
Physicians aren’t expected to keep patients from making certain bad decisions such as sunbathing after a traditional resurfacing procedure, said Dr. Avram, of the department of dermatology, Harvard Medical School, Boston, and the ASLMS president. But in some cases, he said, the law may expect the physician to step in to prevent harm. For example, he said, a patient who has undergone a fractional ablative laser procedure and has received a sedative should not be allowed to drive home.
• You may get sued even if your employee is at fault.
The 2013 study found physicians were often sued even when they did not perform the laser procedure in question. Nonphysicians such as physician assistants and nurses often perform laser operations, and many states allow them to do so. “Nonphysicians were less likely to be sued even if they were the operators,” Dr. Jalian said. In the study, almost 38% of the 174 analyzed cases involved nonphysician operators, but they were sued in just 26% of the cases. In 33 of the 174 cases in the study, plaintiffs alleged failure to properly hire, train, or supervise staff.
He recommended looking at state laws, which differ greatly in their regulations – or lack of them – regarding the operation of medical lasers. In some cases, physicians must supervise laser use, he said. “But what are the requirements? Can you be available by phone down the street or in the Caribbean?”
Dr. Jalian, Dr. Avram, and a colleague followed up the 2013 study with another study that tracked 175 legal cases from 1999 to 2012 involving alleged injuries from cutaneous laser surgery. During this time period, 75 (43%) involved a nonphysician operating a laser, increasing from 36% in 2008 to 78% in 2012.
In almost two-thirds of cases, the procedures in question were done by nonphysicians outside a “traditional medical setting” such as a salon or spa (JAMA Dermatol. 2014 Apr;150[4]:407-11).
• Delayed side effects could mean delayed lawsuits.
According to Dr. Avram, statutes of limitations – the length of time in which a patient can file a lawsuit – typically last for 2-3 years in malpractice cases. But he said that the period begins when the physician is alleged to have made a mistake or when the patient becomes aware of – or should reasonably be aware of – an injury. Therefore, physicians could face legal trouble over delayed hypopigmentation that appears 6 months after a laser resurfacing treatment, or granulomas that appear years after a filler treatment, he said.
• A signed form is not a cure-all.
It is wise to make patients sign an extensive informed consent form, but this will not protect a physician against a claim of negligence, Dr. Avram said. And the reverse is also true: If a patient did not sign a proper consent form, he or she could still sue even if the procedure went perfectly, he noted.
• Your instincts are worth trusting.
When it comes to lawsuit prevention, Dr. Avram said, “by far the most important thing you can do happens within a minute of when you see the patient. Assess and trust your own intuition and your staff’s intuition. For elective, cosmetic treatments, don’t be afraid to say no. There’s no legal obligation to perform a cosmetic treatment on a patient.”
If you do choose to treat a patient, he advised, be open about the procedure and “maybe even tell them some of the tougher, worse-case scenarios.” If a procedure goes poorly, he said, consider how to fix it. “Many complications can be significantly improved or cleared with timely and appropriate intervention,” he said.
In some cases, refunding the patient’s money can be considered, with the patient signing a release, he said. “Document that you are refunding the money in order to preserve the doctor-patient relationship, not to avoid negligence.”
Dr. Jalian and Dr. Avram reported no relevant disclosures.