Medical spas are commonplace in Texas. Their staffing and scope of services often—and probably deliberately—blur the line between what’s a medical service and what’s an esthetician or spa service.
Under Texas law, med spas are often regulated by two separate agencies. The Texas Department of Licensing & Regulation oversees cosmetology and esthetician services. The Texas Medical Board regulates nonsurgical medical cosmetic procedures that are commonly offered in med spa settings.
As the name suggests, medical spas have some sort of affiliation with a licensed physician. The degree of supervision of med spa services, though, varies dramatically. I’ve seen situations where the only involvement of a doctor was on paper.
In those situations, the physician is paid a few hundred dollars a month to be the medical director of medical spa, without providing any real training or supervision. In my view, this is a terrible deal for physicians, who will likely be held responsible when something goes wrong.
Med spa owners are often what the Texas Medical Board describes as “midlevel practitioners,” specifically physician assistants or nurse practitioners. They’re the ones who manage the day-to-day operations of a med spa, and may supervise personnel with less education and training.
Recently, Houston's 14th Court of Appeals entered an interesting opinion in a medical spa case. The case is styled Jalaram Med Spa, Inc. d/b/a Nita Med Spa v. Durbin; No. 14-21-00060-CV. You can read the opinion here.
The case arose from laser burns related to hair removal treatment at a medical spa. Incidentally, severe laser burns are by far the most common complaints we receive hereabouts from potential clients who call Painter Law Firm to discuss potential claims against medical spas.
According to the lawsuit, the patient went to the medical spa for laser hair removal o his legs and the trunk of his body. During the third session, the technician used the new machine on the patient. Near the end of the session, the patient recalled the technician uttering “uh-oh.” The lawsuit alleges that it wasn’t long after that the patient was covered with red swollen and angry looking spots in all areas of the been treated by the laser.
In the lawsuit petition, the plaintiff alleged that the med spa was negligent for failing to use to protect the patient from severe laser burns; failing to conduct laser hair removal treatment in a safe, reasonable and prudent manner; and failing to train and supervise technicians.
Unfortunately, the plaintiff did not comply with the Texas tort reform requirements applicable to health care liability claims.
Texas Civil Practice & Remedies Code Section 74.351 requires medical malpractice and healthcare liability plaintiffs to serve each defendant with a medical expert report within 120 days of each defendant filing an answer in a lawsuit. If the deadline is missed, the defendant can file a motion to dismiss with the trial court, which must be granted, with an accompanying award of attorney’s fees against the plaintiff.
In this case, the trial court denied the motion to dismiss, so the medical spa to get up on appeal.
On appeal, the court notes that the Texas Health & Safety Code requires a laser hair removal facility to have a written contract with a consulting physician to establish proper protocols for the services provided facility, and audit the laser hair removal facilities protocols and operations. Thus, a med spa offering laser hair removal can’t provide such services absent affiliation with the consulting physician.
That’s enough to make the services health care and subject to the medical malpractice tort reform requirements. Predictably, the Houston Court of Appeals reversed and remanded the case, finding that medical spa services are health care liability claims.
If you sustained a severe burn or other injuries from a medical spot treatment, then contact a top-rated, experienced Texas medical malpractice attorney for a free consultation about your potential case.
