Common Causes of Injury and Legal Action in Laser Surgery
H. Ray Jalian, MD; Chris A. Jalian, JD; Mathew M. Avram, MD, JD
JAMA Dermatol. 2013;149(2):188-193. doi:10.1001/jamadermatol.2013.1384.
Objective To identify common causes of legal action, injuries, claims, and decisions related to medical professional liability claims stemming from cutaneous laser surgery.
Design Search of online public legal documents using a national database.
Main Outcome Measures Frequency and nature of cases, including year of litigation, location and certification of provider, injury sustained, cause of legal action, verdict, and indemnity payment.
Results From 1985 to 2012, the authors identified 174 cases related to injury stemming from cutaneous laser surgery. The incidence of litigation related to laser surgery shows an increasing trend, with peak occurrence in 2010. Laser hair removal was the most common litigated procedure. Nonphysician operators accounted for a substantial subset of these cases, with their physician supervisors named as defendants, despite not performing the procedure. Plastic surgery was the specialty most frequently litigated against. Of the preventable causes of action, the most common was failure to obtain an informed consent. Of the 120 cases with public decisions, 61 (50.8%) resulted in decisions in favor of the plaintiff. The mean indemnity payment was $380 719.
Conclusions Claims related to cutaneous laser surgery are increasing and result in indemnity payments that exceed the previously reported average across all medical specialties. Nonphysicians performing these procedures will be held to a standard of care corresponding to an individual with appropriate training; thus, physicians are ultimately responsible for the actions of their nonphysician agents.
As the volume of dermatologic laser procedures has grown during the past 20 years, so have the lawsuits, the authors of a new study say.
Although most of the defendants were physicians, the increase is "partly attributable to the performance of laser surgery by untrained, nonphysician operators," H. Ray Jalian, MD, from the Department of Dermatology, Harvard Medical School, Wellman Center for Photomedicine, Massachusetts General Hospital, Boston, and colleagues write in an article published in the February issue of JAMA Dermatology.
Ultimately, the physicians who oversee these operators are the ones held responsible for any errors or accidents, they warn.
Dr. Jalian and coauthors searched the Westlaw Next database for evidence of litigation involving cutaneous injury after laser surgery. Using search terms such as laser & skin, laser & malpractice, and laser & birthmark, among others, they found 174 cases that met their criteria.
Plastic surgeons and dermatologists were named as operators or supervisors in 82 (47.2%) of the cases. Physicians, including general surgeons, otolaryngologists, and family practitioners, were identified as the operators in a total of 100 cases (57.5%), prompting the authors to observe that "a significant number of physicians are offering or supervising laser skin treatments outside the scope of their specialty." Nonphysicians or physician extenders were named in 34 cases (19.5%), and chiropractors and podiatrists were named in 3 cases (1.7%).
Hair removal was the procedure most often associated with litigation, cited in 63 cases (36.2%), followed by rejuvenation, with 43 cases (24.7%). The most commonly described injuries were burns (47.0% of cases), scars (38.8%), and pigmentary alterations (23.5%). Thirty-two of the cases (18.4%) resulted in a judgment for the plaintiff, 59 (33.9%) in a judgment for the defendant, and 29 (16.7%) in a settlement by the plaintiff. The mean monetary award was $380,700, and the median award was $350,000.
"A Cautionary Tale"
This study presents "a cautionary tale showing that there is a substantial level of risk when using the laser," Bruce Brod, MD, told Medscape Medical News. "It validates our suspicions that lawsuits seem to occur with greater frequency when laser procedures are not a core part of the training for that specialty or when it is delegated to nonphysicians." Dr. Brod, who is clinical associate professor of dermatology at the Perelman School of Medicine at the University of Pennsylvania in Philadelphia, was not involved in the study.
"In my experience, many physicians are unaware that delegation to medical and nonmedical personnel for lasers and other energy-based procedures does not relieve them of medical/legal or ethical responsibility," Roy Geronemus, MD, clinical professor of dermatology, New York University Medical Center, New York City, told Medscape Medical News in an email. The study "significantly underestimates a rapidly growing trend of complications from nonphysicians performing medical procedures in states where there are minimal to no regulations."
Dr. Geronemus, who also was not involved in the study, added that "in my experience, over the past few years, there has been an alarming increase in the number of nonphysicians including nonmedical personnel performing laser and/or technology procedures. Those complications that occur outside medical settings are unlikely to be reported, as lawsuits are not frequently brought since the owners of these facilities often do not have deep enough pockets to interest the plaintiffs or their attorneys."
"[P]hysicians who are not specifically trained in the use of medical laser devices should bear in mind that when performing laser medical procedures, they will be held to the same standard of care expected of physicians trained in delivering these treatments," the authors warn. They urge these physicians to "err on the side of caution and seek out the requisite training and/or licensing."
One author serves as a consultant and medical advisory board member of Zeltiq Aesthetics and as a consultant for Unilever. The other authors, Dr. Brod, and Dr. Geronemus have disclosed no relevant financial relationships.
JAMA Dermatol. 2013;149:188-193. Abstract