A 33-year-old woman sought laser hair removal for her side burns and underarms at a plastic surgeon’s medical spa, which was located next to his medical office.
The patient was seen by an aesthetician, an employee of the plastic surgeon. The aesthetician evaluated the patient and documented the patient had Skin Type IV on the Fitzpatrick scale, a numerical classification system for skin. The scale estimates how different skin types will respond to ultraviolet light. Type IV skin is defined as, “Burns minimally, tans moderately and easily.” (1)
The aesthetician documented that the informed consent discussion took place, including the possible short- and long-term effects of the treatment. The practice’s consent form for light-based hair removal listed risks of discomfort, redness, swelling, bruising, pigment changes (hyperpigmentation and hypopigmentation), wounds, infection, scarring, and eye exposure.
The patient’s signature appeared on the consent form; however, the signature looked different from the signature on the patient’s registration form. The laser treatment was documented for “Skin Type V, Fitzpatrick scale.”
Treatment was performed on the patient’s sideburns and underarms. The progress note indicated that the patient tolerated the procedure well. However, redness and swelling were noted on the right side of the patient’s cheek. The left side of the face had no redness. The patient was given Phyto Corrective Gel to treat the affected area.
Later that day, the patient went to a local emergency department (ED) reporting patchy burns and multiple blisters on her right cheek. The ED physician diagnosed the patient with second degree burns.
The patient was given a tetanus shot. She was prescribed a triple antibiotic ointment for the right cheek and tramadol for pain. The patient was also given a handout on second-degree burns. She was instructed to return to the plastic surgeon for follow up.
The ED physician called the plastic surgeon to inform him of the patient’s condition and to schedule a follow-up appointment for the patient. The plastic surgeon agreed to see the patient within a week. No documentation of the phone call was recorded by the plastic surgeon.
Instead of returning to the plastic surgeon, the patient visited her dermatologist for an unrelated condition. The dermatologist diagnosed the patient with superficial burns with possible early impetigo. Before the visit, the patient received a prescription for silver sulfadiazine from a family member, also a physician.
The dermatologist instructed the patient to continue applying the silver sulfadiazine for two days; prescribed an antibiotic ointment and an over-the-counter antihistamine for four days; and recommended an over-the-counter skin protectant.
Hyperpigmentation and some post inflammatory erythema were noted during two additional follow-up visits with the dermatologist. Visit notes at one week and three weeks indicated the patient’s condition was improving.
A lawsuit was filed against the plastic surgeon and the medical spa. The allegations included gross negligence in performing the procedure and failure to:
- adequately hire, train, and supervise the aesthetician performing the laser
- competently perform the procedure;
- perform test spots on the plaintiff’s face before attempting laser hair removal;
- use adequate equipment or adequate settings on the laser while performing the procedure on the patient’s face; and
- properly obtain informed consent for the procedure.
The lawsuit included an additional allegation of fraud by forging the patient’s name to the consent document.
There were several areas of weakness in this case, as outlined by defendant consultants.
The primary weakness was the apparent forgery of the patient’s signature on the consent form. When comparing the patient’s signature on the new patient paperwork to the consent document, it was obvious that the patient did not sign the consent form.
All the consultants agreed that the documentation was minimal and inadequate. The progress note was created three days after the actual office visit. The progress note also failed to provide details of the discussion with the patient about the risks and possible complications of the procedure. The patient’s oral consent to proceed was also not included.
Laser settings were not recorded and the dates of the procedure were incorrect in the chart. The patient’s date of birth was also improperly entered into the record. The poor documentation raised concerns that the aesthetician was not properly trained and supervised by the physician.
This case was settled on behalf of the plastic surgeon and the practice.
Risk management considerations
Poor documentation was a weakness in this case. It can be helpful to have a standard template for providers and staff when creating progress notes. The progress note template will remind the author to consistently include adequate and detailed information about the visit. The EHR vendor can assist with setting up a template.
In this case, it would have helped the defendant’s case if he had been regularly monitoring and reviewing medical record documentation created by staff members to ensure the documentation was comprehensive and well maintained.
Physicians who delegate duties in their practices and med spas are vicariously liable for the activities performed by staff members. Therefore, physicians should consider maintaining employee records for each staff member that include a written job description, signed confidentiality agreements, current licenses and verification, signed acknowledgment of policies and procedures, and transcripts for all training obtained.
For those managing a med spa specifically, the Texas Department of Licensing and Regulation, Health and Safety Code, Chapter 401, Section 501-502, states that individuals performing laser hair removal must properly apply and meet listed requirements for a certificate or license. (2)
In addition to documentation issues, the plastic surgeon in this case had not purchased entity coverage for the med spa. The entity was included in the claim and exposed without medical liability coverage
- Sachdeva, S. Fitzpatrick skin typing: Applications in dermatology. Indian J Dermatol Venereol Leprol. Volume 75, Issue 1, January-February 2009. Available at http://www.bioline.org.br/pdf?dv09029. Accessed September 24, 2018.
- Texas Department of Licensing and Regulation, Health and Safety Code, Chapter 401, Subchapter M, Sec. 501-522. Available at https://statutes.capitol.texas.gov/Docs/HS/htm/HS.401.htm. Accessed October 1, 2018.
These closed claim studies are based on an actual malpractice claims from TMLT. These cases illustrates how action or inaction on the part of physicians led to allegations of professional liability, and how risk management techniques may have either prevented the outcome or increased the physician’s defensibility. These studies have been modified to protect the privacy of the physicians and patients.