Laser Law Pointers
July 2004
L aser use by dermatologists is increasing annually. In fact, according to the latest survey results from the American Society for Dermatologic Surgery, laser and light procedures increased by 14% between 2001 and 2003, the most recent data available. Non-ablative procedures alone saw a jump of 60% during this same time period. More procedures are being performed and more dermatologists are employing laser and light devices. As you know, laser and light technologies are successful in treating a wide range of conditions, which will only continue to increase the use of these devices.
Whether you’re a seasoned practitioner or just starting to use lasers in practice, you should be aware of relevant legal issues. Here, I’ll review several issues of laser law — in particular, malpractice coverage, side effects and technological progress issues.
Investigate Malpractice Coverage Before Buying a Laser
Before buying a laser, check to see if malpractice will cover using the laser you purchase. Once you buy a laser, you won’t be able to return it if your malpractice insurance doesn’t cover your use of such a laser.
One such case addressed this matter. In Ala. Ob/Gyn Specialists v. Cynosure, Inc., an obstetrician bought a hair removal laser1 and subsequently learned that his malpractice insurance wouldn’t cover his use of the laser. He then decided the laser didn’t fit his practice. He refused to pay for the laser and Cynosure sued. The obstetrician specifically alleged that the defendant misrepresented and or withheld, suppressed or concealed information regarding three issues:
1. the benefits and costs of the laser
2. whether the laser was “cutting-edge” technology and would be so for
5 years
3. whether malpractice insurance was available to cover the use of the laser.
The laser manufacturer countered that the doctor knew or should have known these facts. Cynosure prevailed in its lawsuit, and the obstetrician had to pay for the laser.
The practical lesson of this case is that before you buy new equipment find out if your malpractice insurance will cover possible suits related to that equipment, and get proof of such coverage in writing.
Dermatology malpractice insurance commonly comes in two grades — medical dermatology and surgical dermatology. Surgical dermatology insurance covers such procedure as Mohs surgery and laser resurfacing. Obtain the necessary coverage for the procedures you do, and again ask your malpractice carrier if you have questions about the nature and extent of your coverage.
Prepare for Potential Side Effects
As I’ve noted in a previous article, good documentation and appropriate evidence are the best defense in a malpractice lawsuit involving lasers or any other procedure in dermatology.2 When considering these issues, it’s important to be aware that lasers can have side effects. Discuss these potential side effects with patients.
The American Society for Dermatologic Surgery noted that half of its 2,400 members reported seeing an increase in complications in recent years from laser procedures performed by non-medical personnel, who were frequently minimally trained, unsupervised spa estheticians or cosmetologists. The procedure most often found to have cause side effects was laser hair removal with reported incidences of irreversible pigment changes, burns or scarring.3,4 As physicians employ more care extenders, actively creating ways to avoid potential side effects should be an ongoing.
Hair laser treatments incorrectly performed can have even more severe side effects. In 2000, a 20-year-old Coast Guard cadet died of an allergic reaction to drugs he was given by a plastic surgeon in McLean, VA, prior to a hair removal treatment on his back. His parents, who filed a wrongful death lawsuit, recently received a $725,000 settlement.3,4
Adequate training and consideration of relevant medical issues attendant to laser use is essential if such suits are to be successfully defended.
Technological Advances in Laser Technology and Lasers
The introduction of newer lasers can cause a change in the liability for using an existing laser. Thus, when a hair removal laser manufacturer introduces a newer, safer laser, it can be a question of fact that a jury must assess if the older model is still a viable tool for patient care or possibly considered to be defective and outdated. The implication of this is that if a patient suffers injury from a laser that was made years ago and has been replaced on the market with another “better” laser and the patient sues the doctor and/or laser manufacturer, a company/doctor’s motion in court to dismiss the case immediately, a motion for summary judgment, might be rejected by the court because the patient’s suit presents a real issue of fact. The doctor/company might prevail eventually but at the cost of inconvenience. One means of potentially limiting the liability for a lawsuit would be a note in the written consent for laser procedure and in discussions with the patient that the doctor might not be using the latest laser.
Avoiding Potential Problems
Although it’s interesting to consider legal issues involved with lasers, it’s important to keep in mind the vast majority of laser procedures result in a positive result for doctors, patients and companies that develop and manufacture lasers and light-based devices. It is, however, the rare case where a procedure or transaction goes awry that is most nettlesome for dermatologists. Therefore, a consideration of these issues will minimize potential difficulties and enhance the relationship of dermatologist and patient.
L aser use by dermatologists is increasing annually. In fact, according to the latest survey results from the American Society for Dermatologic Surgery, laser and light procedures increased by 14% between 2001 and 2003, the most recent data available. Non-ablative procedures alone saw a jump of 60% during this same time period. More procedures are being performed and more dermatologists are employing laser and light devices. As you know, laser and light technologies are successful in treating a wide range of conditions, which will only continue to increase the use of these devices.
Whether you’re a seasoned practitioner or just starting to use lasers in practice, you should be aware of relevant legal issues. Here, I’ll review several issues of laser law — in particular, malpractice coverage, side effects and technological progress issues.
Investigate Malpractice Coverage Before Buying a Laser
Before buying a laser, check to see if malpractice will cover using the laser you purchase. Once you buy a laser, you won’t be able to return it if your malpractice insurance doesn’t cover your use of such a laser.
One such case addressed this matter. In Ala. Ob/Gyn Specialists v. Cynosure, Inc., an obstetrician bought a hair removal laser1 and subsequently learned that his malpractice insurance wouldn’t cover his use of the laser. He then decided the laser didn’t fit his practice. He refused to pay for the laser and Cynosure sued. The obstetrician specifically alleged that the defendant misrepresented and or withheld, suppressed or concealed information regarding three issues:
1. the benefits and costs of the laser
2. whether the laser was “cutting-edge” technology and would be so for
5 years
3. whether malpractice insurance was available to cover the use of the laser.
The laser manufacturer countered that the doctor knew or should have known these facts. Cynosure prevailed in its lawsuit, and the obstetrician had to pay for the laser.
The practical lesson of this case is that before you buy new equipment find out if your malpractice insurance will cover possible suits related to that equipment, and get proof of such coverage in writing.
Dermatology malpractice insurance commonly comes in two grades — medical dermatology and surgical dermatology. Surgical dermatology insurance covers such procedure as Mohs surgery and laser resurfacing. Obtain the necessary coverage for the procedures you do, and again ask your malpractice carrier if you have questions about the nature and extent of your coverage.
Prepare for Potential Side Effects
As I’ve noted in a previous article, good documentation and appropriate evidence are the best defense in a malpractice lawsuit involving lasers or any other procedure in dermatology.2 When considering these issues, it’s important to be aware that lasers can have side effects. Discuss these potential side effects with patients.
The American Society for Dermatologic Surgery noted that half of its 2,400 members reported seeing an increase in complications in recent years from laser procedures performed by non-medical personnel, who were frequently minimally trained, unsupervised spa estheticians or cosmetologists. The procedure most often found to have cause side effects was laser hair removal with reported incidences of irreversible pigment changes, burns or scarring.3,4 As physicians employ more care extenders, actively creating ways to avoid potential side effects should be an ongoing.
Hair laser treatments incorrectly performed can have even more severe side effects. In 2000, a 20-year-old Coast Guard cadet died of an allergic reaction to drugs he was given by a plastic surgeon in McLean, VA, prior to a hair removal treatment on his back. His parents, who filed a wrongful death lawsuit, recently received a $725,000 settlement.3,4
Adequate training and consideration of relevant medical issues attendant to laser use is essential if such suits are to be successfully defended.
Technological Advances in Laser Technology and Lasers
The introduction of newer lasers can cause a change in the liability for using an existing laser. Thus, when a hair removal laser manufacturer introduces a newer, safer laser, it can be a question of fact that a jury must assess if the older model is still a viable tool for patient care or possibly considered to be defective and outdated. The implication of this is that if a patient suffers injury from a laser that was made years ago and has been replaced on the market with another “better” laser and the patient sues the doctor and/or laser manufacturer, a company/doctor’s motion in court to dismiss the case immediately, a motion for summary judgment, might be rejected by the court because the patient’s suit presents a real issue of fact. The doctor/company might prevail eventually but at the cost of inconvenience. One means of potentially limiting the liability for a lawsuit would be a note in the written consent for laser procedure and in discussions with the patient that the doctor might not be using the latest laser.
Avoiding Potential Problems
Although it’s interesting to consider legal issues involved with lasers, it’s important to keep in mind the vast majority of laser procedures result in a positive result for doctors, patients and companies that develop and manufacture lasers and light-based devices. It is, however, the rare case where a procedure or transaction goes awry that is most nettlesome for dermatologists. Therefore, a consideration of these issues will minimize potential difficulties and enhance the relationship of dermatologist and patient.
L aser use by dermatologists is increasing annually. In fact, according to the latest survey results from the American Society for Dermatologic Surgery, laser and light procedures increased by 14% between 2001 and 2003, the most recent data available. Non-ablative procedures alone saw a jump of 60% during this same time period. More procedures are being performed and more dermatologists are employing laser and light devices. As you know, laser and light technologies are successful in treating a wide range of conditions, which will only continue to increase the use of these devices.
Whether you’re a seasoned practitioner or just starting to use lasers in practice, you should be aware of relevant legal issues. Here, I’ll review several issues of laser law — in particular, malpractice coverage, side effects and technological progress issues.
Investigate Malpractice Coverage Before Buying a Laser
Before buying a laser, check to see if malpractice will cover using the laser you purchase. Once you buy a laser, you won’t be able to return it if your malpractice insurance doesn’t cover your use of such a laser.
One such case addressed this matter. In Ala. Ob/Gyn Specialists v. Cynosure, Inc., an obstetrician bought a hair removal laser1 and subsequently learned that his malpractice insurance wouldn’t cover his use of the laser. He then decided the laser didn’t fit his practice. He refused to pay for the laser and Cynosure sued. The obstetrician specifically alleged that the defendant misrepresented and or withheld, suppressed or concealed information regarding three issues:
1. the benefits and costs of the laser
2. whether the laser was “cutting-edge” technology and would be so for
5 years
3. whether malpractice insurance was available to cover the use of the laser.
The laser manufacturer countered that the doctor knew or should have known these facts. Cynosure prevailed in its lawsuit, and the obstetrician had to pay for the laser.
The practical lesson of this case is that before you buy new equipment find out if your malpractice insurance will cover possible suits related to that equipment, and get proof of such coverage in writing.
Dermatology malpractice insurance commonly comes in two grades — medical dermatology and surgical dermatology. Surgical dermatology insurance covers such procedure as Mohs surgery and laser resurfacing. Obtain the necessary coverage for the procedures you do, and again ask your malpractice carrier if you have questions about the nature and extent of your coverage.
Prepare for Potential Side Effects
As I’ve noted in a previous article, good documentation and appropriate evidence are the best defense in a malpractice lawsuit involving lasers or any other procedure in dermatology.2 When considering these issues, it’s important to be aware that lasers can have side effects. Discuss these potential side effects with patients.
The American Society for Dermatologic Surgery noted that half of its 2,400 members reported seeing an increase in complications in recent years from laser procedures performed by non-medical personnel, who were frequently minimally trained, unsupervised spa estheticians or cosmetologists. The procedure most often found to have cause side effects was laser hair removal with reported incidences of irreversible pigment changes, burns or scarring.3,4 As physicians employ more care extenders, actively creating ways to avoid potential side effects should be an ongoing.
Hair laser treatments incorrectly performed can have even more severe side effects. In 2000, a 20-year-old Coast Guard cadet died of an allergic reaction to drugs he was given by a plastic surgeon in McLean, VA, prior to a hair removal treatment on his back. His parents, who filed a wrongful death lawsuit, recently received a $725,000 settlement.3,4
Adequate training and consideration of relevant medical issues attendant to laser use is essential if such suits are to be successfully defended.
Technological Advances in Laser Technology and Lasers
The introduction of newer lasers can cause a change in the liability for using an existing laser. Thus, when a hair removal laser manufacturer introduces a newer, safer laser, it can be a question of fact that a jury must assess if the older model is still a viable tool for patient care or possibly considered to be defective and outdated. The implication of this is that if a patient suffers injury from a laser that was made years ago and has been replaced on the market with another “better” laser and the patient sues the doctor and/or laser manufacturer, a company/doctor’s motion in court to dismiss the case immediately, a motion for summary judgment, might be rejected by the court because the patient’s suit presents a real issue of fact. The doctor/company might prevail eventually but at the cost of inconvenience. One means of potentially limiting the liability for a lawsuit would be a note in the written consent for laser procedure and in discussions with the patient that the doctor might not be using the latest laser.
Avoiding Potential Problems
Although it’s interesting to consider legal issues involved with lasers, it’s important to keep in mind the vast majority of laser procedures result in a positive result for doctors, patients and companies that develop and manufacture lasers and light-based devices. It is, however, the rare case where a procedure or transaction goes awry that is most nettlesome for dermatologists. Therefore, a consideration of these issues will minimize potential difficulties and enhance the relationship of dermatologist and patient.
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