Houston Court of Appeals rules that medical spa negligence claim isn't subject to medical malpractice tort reform requirements

Many physician offices have jumped into the lucrative field of offering medical spa services. It’s easy to see why.

Doctors feel the stress of high overhead expenses while haggling with health insurance companies and Medicare to get paid for medical and healthcare services rendered. In contrast, doctors offering in-house medical spa services enjoy the instant profits from cash-paying customers with little additional expense.

Aestheticians (also spelled estheticians) have less training than typical employees and doctors’ offices and, therefore, are less expensive to hire. When something goes wrong in an aesthetic or cosmetic treatment, though, questions arise about who’s responsible and whether it’s governed by the medical malpractice tort reform protections of Texas law.

These were the issues considered in a recent opinion by Houston’s Fourteenth Court of Appeals, in the case styled Lake Jackson Medical Spa, Ltd. et al. v. Gaytan, No. 14-19-00703-CV. The case was on an interlocutory appeal from the trial court level, the 152nd District Court of Harris County, Texas, where The Hon. Robert Schaffer is the presiding judge. You can read the appellate opinion here.

The factual background in the case is common to many medical spa negligence claims. The plaintiff went to a medical spa doctor’s office for the following treatments:

• L.J. acne treatment

• L.J. skin pen

• L.J. phototherapy acne treatment

• Skin pen spot treatment

• Microdermabrasion

• L.J. VI peel treatment for areas on the face and back.

The plaintiff was dissatisfied with the treatments because they didn’t improve her skin condition, but instead caused scarring and darkening on her back and face. In the lawsuit filed, the plaintiff claimed that Lake Jackson Medical Spa and its owner, Dr. Robert Yarish, were legally responsible for the acts of the aesthetician who provided the services, Jamie Guzman. The lawsuit allegations included:

• The aesthetician didn’t properly evaluate the plaintiff skin condition and Taylor treatments accordingly.

• The aesthetician didn’t obtain the plaintiff’s medical history, including medications that she was using at the time of the cosmetic treatments.

• Performing a VI peel despite the fact that the plaintiff was using tretinoin cream. These treatments cannot be used together.

• Failure to account for the plaintiff’s skin type when performing treatments.

• The medical spa and Dr. Yarish failed to appropriately supervise and evaluate the aesthetician’s cosmetic treatments of the plaintiff’s skin.

Tort reform expert report requirement

The defendant spa and physician filed a motion to dismiss because the plaintiff didn’t serve a medical expert report and curriculum vitae within 120 days after the defendants filed their answer in the lawsuit. These are requirements of Texas Civil Practice & Remedies Code Section 74.351, a tort reform law applicable to health care liability claims. When considering a motion to dismiss of this nature, if the court determines that the case is a medical malpractice/health care liability claim, then it must dismiss the case and order the plaintiff to pay the defendants’ attorney’s fees.

I’ll cut to the chase. Ultimately, the court of appeals determined that under the specific facts of this case the Chapter 74 expert report requirement doesn’t apply because the case did not involve a health care liability claim. This is big news that’s consistent with the recent trend for some Texas appellate courts to whittle away at the unnecessarily expansive reach of medical malpractice tort reform restrictions.

When trial and appellate courts consider defense objections to the sufficiency of a Chapter 74/preliminary medical expert report, they are limited to the four corners of the report. That’s not the case, though, when the motion to dismiss is based on the plaintiff’s non-filing venue expert report at all. In this scenario, the courts can consider additional evidence.

The Houston Court of Appeals relied on the plaintiff’s affidavit, which provided significant information about her encounters and treatments with Lake Jackson Medical Spa. The court found the following factors to be significant:

• The patient sought cosmetic skin treatments for purely aesthetic reasons.

• She found the medical spa by an online search, rather than being referred by a medical doctor.

• On her first visit, she was seen by the aesthetician who made a recommended treatment plan.

• The plaintiff didn’t recall filling out any patient medical history questionnaires or informed consent forms.

• She never saw Dr. Robert Yarish. The physician wasn’t involved in any discussions or treatments. Dr. Yarish didn’t operate any medical device as part of her treatments.

• The plaintiff believes that the skin cream used in her treatment was not a prescription medication.

• The aesthetician was not supervised during any of the plaintiff’s visits or treatments.

Considering the facts of the case, the court analyzed the statutory of “health care” in Texas Civil Practice & Remedies Code Section 74.001, which states that it is, “any act or treatment performed or furnished, or that should have been performed or furnished, by any health care provider for, to, or on behalf of a patient during the patient’s medical care, treatment, or confinement.”

The court relied on Texas Supreme Court precedent, from Texas West Oaks Hospital, LP v. Williams, 71 S.W.3d 171, 179–80 (Tex. 2012), for the proposition that there must be a patient-physician relationship in order to fall within the definition of “health are liability” claim.

Under the specific facts of this case, the Houston appellate court determined that there was no evidence that the plaintiff entered into a patient-physician relationship with Dr. Yarish. On this basis, the court ruled that the plaintiff’s claims were not health care liability claims, so the medical malpractice tort reform expert report did not apply to her case.

If you’ve been seriously injured because of medical spa treatments gone awry or any type of medical malpractice in Texas, it’s important to consult with an attorney with significantly experience in handling health care liability claims. An experienced top-rated Houston, Texas medical malpractice lawyer knows the contours of this complex area of the law and how to meet the legal requirements necessary to pursue justice on behalf of injured clients.

Robert Painter
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Robert Painter

Robert Painter is an award-winning medical malpractice attorney at Painter Law Firm Medical Malpractice Attorneys in Houston, Texas. He is a former hospital administrator who represents patients and family members in medical negligence and wrongful death lawsuits all over Texas. Contact him for a free consultation and strategy session by calling 281-580-8800 or emailing him right now.