More and more physician offices are offering aesthetic or spa-like services as part of their office practices. However, just because you’re getting a laser treatment, for example, in the setting of a doctor’s office, doesn’t mean that the person providing the service is properly trained.
According to a lawsuit filed by a Dallas patient, that was the situation she faced when receiving an intense pulse light (IPL) treatment.
IPL is a handheld device that uses a broad spectrum of light to penetrate the skin to the molecular level. Cosmetic workers, doctors, and nurses use the device to reduce spots on the skin, help even out skin texture, and even remove hair.
The plaintiff in the lawsuit went to her obstetrician for an IPL procedure to reduce hair on her face and neck. Although she had the service at a doctor’s office, an esthetician (also spelled aesthetician) without any formal medical training operated the IPL device on her face and neck.
What is an esthetician?
An esthetician is someone who provides skin treatments. They often provide facials and make recommendations to their clients on how to take care of their skin. In Texas, aestheticians are regulated by the Texas Department of Licensing & Regulation, which imposes requirements for licensure, including:
• A high school diploma or equivalency to apply for a cosmetology license.
• 750 hours of instruction in a beauty school.
• Passing the licensure exam.
What happened in the negligence case?
The patient was justifiably upset because the IPL procedure done at her obstetrician’s office left her with partial-thickness first-degree burns and permanent scarring. In the healthcare liability claim lawsuit, the plaintiff alleged that the esthetician wasn’t properly trained, and that the obstetrician didn’t adequately train or supervise her staff.
In fact, the plaintiff alleged that the obstetrician didn’t directly supervise the esthetician during the procedure and, in fact, only saw the doctor when she returned to the office for a follow-up visit. At that point, the obstetrician immediately recognized the problem and referred the patient to a dermatologist. Dermatologists are physicians with specialized training to treat diseases and conditions of the skin.
Procedural dispute in the lawsuit
Before even getting to the merits of a medical malpractice or healthcare liability claim, plaintiff must satisfy a tort reform requirement to produce an expert report from a qualified medical expert that details the criticisms of the care at issue.
These preliminary reports are due early in the litigation process, 120 days after a defendant files an answer and appearance in the case. If the defendant doesn’t like the report, there’s an opportunity to file an objection to the adequacy of the report within 21 days of the date it’s served.
In this IPL negligence lawsuit, the plaintiff produced a medical expert report from a board-certified plastic surgeon. While it seems reasonable to think that a plastic surgeon would be qualified to author an expert report concerning burn damage to the skin, the legal standard requires the expert to establish qualification with the relevant medical care at issue within the four corners of the report and accompanying resume or curriculum vitae (CV).
In this case, the defendant objected because the board-certified plastic surgeon didn’t specifically state that he had directly relevant experience. The Dallas Court of Appeals agreed, noting, “The documents did not . . . demonstrate that [the proposed plastic surgery expert] had any knowledge, skill, education, experience, or training concerning IPL procedures or any other type of laser or light treatment. [His] certification and plastic surgery is not, by itself, sufficient to show he has expertise in the subject matter on which he was giving his opinion.”
Fortunately, Texas Civil Practice & Remedies Code Section 74.351 allows the plaintiff one 30-day period to correct any deficiencies that the court identifies and a preliminary expert report. The Dallas Court of Appeals extended that opportunity to the plaintiff, commenting that this deficiency would be easily corrected.
The defendant obstetrician objected to the proposed expert report on an additional ground, arguing that the report did not adequately identify the applicable standard of care. The standard of care is what a reasonably prudent physician would have done in the same or similar circumstances.
In my experience, sufficient preliminary expert reports must go into painfully detailed explanations of the standard of care. In this case, though, the board-certified plastic surgeon merely stated that the care delivered fell below the standard. The appellate court agreed that the four corners of the report didn’t contain an explanation of exactly what the standard of care was or how the defendant obstetrician didn’t meet that standard.
Under Texas law, appellate courts are not permitted to fill gaps in a report or draw inferences. An expert report is like one of those connect-the-dots drawings from childhood. The report must be detailed enough to connect the dots from the standard of care to the mistake to the proximate causation of the plaintiff’s injuries and damages.
Although the defendant asked the court to dismiss the case outright for the failure to serve an adequate expert report on a timely basis, the Dallas Court of Appeals followed the Texas Supreme Court’s guidance to be lenient in granting a 30-day extension to cure deficiencies.
Back to the trial court
The plaintiff filed her case in 2019. Now in mid-2020, the case is headed back to the trial court. There’s been absolutely no forward motion in the case because the tort reform statute does not allow discovery to proceed until the expert report requirements are met.
If you’ve been seriously injured because of a cosmetic procedure in a physician office or any other type of poor medical care, then contact an experienced, top-rated Houston, Texas medical malpractice lawyer for help in evaluating your potential case.
