Risk Management

Cosmetic Treatment by Technician Results in Fine and Suspended License for Medical Director

By Ryan Bucsi, OMIC Senior Litigation Analyst

Digest, Spring 2009

ALLEGATION: Negligent supervision of unlicensed staff performing laser skin resurfacing.

DISPOSITION: Lawsuits were settled on behalf of the OMIC insured for a collective $48,750. Insured was fined $35,000 and his license suspended for aiding and abetting the unlicensed practice of medicine.

Case Summary

In two separate cases occurring one week apart, patients received Intense Pulse Light (IPL) treatment from a technician in a medical spa. Following treatment, each patient complained of being burned. The spa returned the money in both cases and even compensated one patient for her missed time from work. Nonetheless, they sued the OMIC-insured ophthalmologist in his role as medical director of the spa even though he had not been present at either procedure.

Analysis

The ophthalmology expert who reviewed this case testified that one of the patients had experienced normal skin darkening that was likely to improve. The other patient was a smoker with prior skin damage from the sun and no new injury. While the expert concluded that the patients were not harmed, he shared the plaintiffs’ concerns about the delegation process. First, he noted that neither the insured nor another physician documented a pre-treatment exam or the reasons for recommending IPL. Next, the expert could not find an order for the technician to perform the treatment, a protocol defining treatment parameters, or an indication from any physician of subsequent examinations. As the medical records contained only documentation by the technician, the expert concluded that the technician made treatment decisions and performed the IPL sessions without supervision. Delegation of such authority for medical decision-making, he opined, was below the standard of care. The insured initially disagreed with the review and reported that regardless of the laws and regulations, it was quite common for physicians he knew to designate a “range of therapy” for IPL treatments. Based upon the technician’s training and skills, she had been granted the discretion to adjust the IPL power up or down within that range in order to achieve the desired result. The insured also did not feel that his presence was required for these treatments as they were routinely performed by technicians in his area. He acknowledged, however, that his medical board had already determined that such delegation was illegal. Moreover, the expert reported that he was always physically present on site in his own practice when IPL procedures were being performed by his technicians. The insured was certain that written consent for at least one of the procedures had been obtained; however, the consent document could not be located and there were no documented risk/benefit discussions.

Risk Management Principles

Experts base their review of malpractice claims upon the standard of care—reasonable prudence—not the “standard of the community.” Attorneys remind physicians, moreover, that ignorance or violation of laws and regulations may make a case indefensible, even if the care was properly rendered and there were no injuries. The physician remains liable for damages sustained by patients cared for by his staff and under his supervision, even if he has properly delegated, trained, and supervised the staff. If the cause of the injury cannot be attributed to the staff or equipment, the indemnity payment is made on behalf of the physician, not the practice, as happened here. In compliance with federal and state law, the payments made on behalf of the OMIC insured were reported to the National Practitioner Data Bank and the state board and were available to health care facilities performing credentialing reviews. The state board levied a $35,000 fine and suspended the insured’s medical license. This fine was not covered by the OMIC insurance policy since the insured’s role was limited to being the medical director of a non-OMIC insured spa.

As this case indicates, a cosmetic procedure with seemingly minor clinical risks may end up causing severe consequences for the physician. Protect yourself if you are delegating medical procedures. Know your state laws. Ensure that you are competent to perform a procedure yourself prior to training non-physician personnel to perform it. Keep files with evidence of adequate training, competency evaluations, and protocol development and review. For each patient, evaluate the necessity of a procedure, and write an order for staff to perform the procedure, including treatment parameters. Document the informed consent discussion and ask the patient to sign a procedure-specific consent form. See the Hotline article in this Digest for information on what can be delegated.