People have pursued optimal beauty since the beginning of time. What has changed in the last several decades, however, is the accessibility and pervasiveness of cosmetic surgeries, injections and treatments that involve medical doctors and other practitioners.
Because such procedures involve elements like intense heat, anesthesia, needles and harsh chemicals, the possibility for injury has never been greater. Determining whether your claim is one of medical malpractice or general injury must be thoroughly discussed with an experienced Miami medical malpractice attorney. This distinction was critical in Rio Grande Valley Vein Clinic, P.A. v. Guerrero, where a plaintiff alleged she suffered severe burns and permanent scarring on her face and neck after undergoing laser hair removal treatments.
To understand the primary issue, we must first explain the importance of differentiating malpractice vs. injury. Most relevant to injury victims is that filing requirements for medical malpractice claims are much more stringent than those for general injury. For example, claimants in medical malpractice claims have to endure a pursuit process before they can even file. The attorney has to conduct an investigation to verify reasonable grounds. Medical records need to be gathered and reviewed. A medical expert who is a similar health care provider has to review the case, and that expert must be willing to execute an affidavit swearing to a professional opinion indicating reasonable grounds to proceed. And there has to be a notice of intent submitted.
Then there’s the pursuit investigative period, which involves both parties exchanging written questions, request for documentation and unsworn statements. Defendants in these cases want them to be considered medical malpractice because it’s a higher burden on plaintiffs. Some cases will be straightforward: You suffer a serious injury during a surgical procedure performed by a medical doctor. Clearly, this is malpractice. But what about Botox injections? Commercial weight loss programs that require prescription medications? Chemical peels? Cosmetic fillers? Thermal wrinkle treatments? Intense pulsed light treatments? Laser skin or hair removal procedures? The answer is going to depend on the individual facts of the case, the qualifications of the professional performing the procedure and where it was conducted. The Rio Grande Valley Clinic case followed a similar claim in Texas, Bioderm Skin Care, LLC v. Sok, in which the court held that a claim for improper and injurious laser hair removal was a health care liability claim (as opposed to a general liability claim) because it required expert health care testimony necessary to prove or refute that the procedure was conducted improperly.
The court reached this conclusion because federal laws restrict use of lasers to supervised use in a medical practice. Further, the plaintiff did not rebut the presumption that the claim was one of health care liability. The same conclusion was reached here, where the laser use was subjected to the same federal regulations. Because the plaintiff didn’t refute the claim, or provide an expert witness report as required for medical malpractice lawsuits, the court granted a summary judgment in favor of the defense.
Those injured by a beauty treatment or cosmetic procedure should be aware of the fact that the classification of their claim matters. Beauty salons are also subject to strict statutory requirements and regulations, and failing any of these can be grounds for a negligence lawsuit. Having an attorney with experience can save you a great deal of time and energy.
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