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Doctors Seeking Opportunity Overlook Storm Clouds

Many DCs are broadening their services to bring in additional revenue. But along with these ancillary services comes more risk.

Andrew LeMond, DC, met Thad Roy, MD, at a workshop put on by Dr. Roy to promote the use of lasers as a side practice. At this workshop, Dr. Roy claimed lasers could not only remove excessive hair, they could also be used to smooth and abrade the skin’s top layers.

Dr. LeMond became interested in this process, and he decided to add a laser as an adjunct to his chiropractic services. In Dr. LeMond’s state, the statute regarding the practice of chiropractic permits DCs to operate laser hair removal centers only with a medical doctor’s oversight. So, Dr. LeMond asked Dr. Roy to act as medical director for his laser hair center, LeMond Chiropractic, Inc., dba Le Laser. As compensation, Dr. LeMond agreed to cover Dr. Roy’s medical malpractice insurance through another company (not NCMIC) and pay him $1,500 for each of his visits to the clinic.

Dr. Roy would be expected to spend approximately two half-days a month overseeing the laser hair removal operation. Dr. Roy would also train and supervise two nurses, one of whom was Tina Harms who also worked at Dr. Roy’s office. This training would ensure the nurses:

  • Were knowledgeable about using the laser,
  • Knew how to evaluate patients and to set the laser energy accordingly, and
  • Understood the indications/contraindications of each procedure.

Anita Lopez became Dr. LeMond's chiropractic patient after a motor vehicle accident. While at the practice for chiropractic care, Anita saw a brochure that sparked her interest on laser hair removal. After discussing the laser hair removal procedure with Lola LeMond, the DC’s wife and office manager, and Tina Harms, Anita decided to begin treatments. She signed an informed consent form explaining laser hair removal, as well as the microdermabrasion and laser tattoo removal procedures. During the course of these laser hair removal treatments, Anita had no complaints.

Tattoo Removal Sought

When she was a teenager, Anita had a tattoo done of a rose with a man’s name under it. The tattoo was approximately two inches wide and located on her upper right breast. Once she had children, Anita began thinking about removing the tattoo and discussed this option with the nurses.

Lola and Tina told Anita the tattoo could be removed with the laser, and Tina showed Anita where she had tattoos removed from her arm. The only visible scars were barely noticeable thin lines. Though both cautioned Anita about the risks of scarring, Tina downplayed the risks by saying any scarring would likely be very minimal.

Anita understood Tina would remove the tattoo with Dr. Roy overseeing the treatments. When Anita would ask questions to be directed to Dr. Roy, Tina would answer them herself or she’d say she would confer with Dr. Roy and provide the answer at the next appointment. Tina was the only one performing Anita’s laser procedures.

Tina told Anita that the tattoo should be gone after four or five treatments and her only restriction would be to stay out of the sun. With each subsequent treatment, the tattoo should get lighter but some colors—especially reds—might not become completely invisible.

During each procedure, Anita bled and developed scabs. She complained that she was in pain, and she was afraid her skin was becoming pockmarked. Nonetheless, Tina assured Anita that her treatments were going fine. She provided Anita with a Vigilon pad with gel to help her skin heal and keep it moist.

Anita received frequent prescriptions for a numbing cream, antibiotics and Vicodin that were written on Dr. Roy’s prescription pad. Either Lola or Tina would fill out the prescriptions and sign Dr. Roy’s name.

After Anita’s last tattoo removal treatment, she was given a 10-minute microdermabrasion treatment on the area. The area became even more inflamed—it looked like a thick, red mass. Tina assured Anita that the tattoo removal was progressing normally, and that Dr. Roy said the microdermabrasion would help flatten the scar.

Patient Consults with Dermatologist

Not seeing significant improvement after a month, Anita consulted with a dermatologist. When the dermatologist learned what type of laser was used on Anita, he stated it was the wrong machine for tattoo removal and, in fact, the entire tattoo removal process was done improperly. He said he could try to flatten the scar but would prefer she see a plastic surgeon. The plastic surgeon would more than likely recommend inserting balloons under the skin in the breast area to stretch the skin extensively. He would then cut out the excess skin along with the scar tissue. Because some of the breast tissue would be removed, augmentation would be needed to restore the breast to its previous size.

Dermatologist’s Advice

The dermatologist said this process would cost upward of $50,000. He told Anita he generally never says anything negative about other doctors, but he would advise her to seek legal representation.

After hearing all this, Anita consulted with an attorney and filed a lawsuit against LeMond Chiropractic, Inc., Dr. LeMond (who had passed away six months earlier), Dr. Roy and Tina Harms.

LeMond Chiropractic had entity coverage with shared limits under Dr. LeMond’s malpractice insurance policy. However, because Dr. LeMond’s estate was fairly small, it was not expected to be probated. Additionally, two months after Dr. LeMond’s death, the secretary of state suspended LeMond Chiropractic as a practice because there was no license associated with it. As a result, defense counsel was prohibited from appearing on behalf of LeMond Chiropractic, Inc.

To preserve any cross claim against Dr. Roy, the NCMIC-assigned defense counsel explained to Lola that she would need to probate her husband’s estate.

MD’s Supervision Questioned

During the year and a half Dr. Roy was medical director at LeMond Chiropractic, dba Le Laser, 12 patients had tattoos removed by Tina. However, Dr. Roy denied any knowledge that tattoo removal was being performed at the clinic. At the same time, the records indicated Dr. Roy knew or should have known about the tattoo removals.

According to the law in his state, a physician’s supervision is required for a practice to use a laser. If a physician was not able to be physically present, standardized, written procedures would need to be developed and strictly followed (the guidelines were spelled out in the state code). Otherwise, the staff of the clinic could be liable for performing the unauthorized practice of medicine.

At Dr. Roy’s deposition, it became clear that he delegated a good deal of responsibility to the nurses. Because Tina worked in his own office, Dr. Roy trusted her judgment and expected her to contact him with any problems.

Dr. Roy revealed that he didn’t know whether Dr. LeMond supervised the nurses during the laser procedures or if there were written, standardized procedures for running the clinic. Instead, he said he and the nurses had a mutual understanding about the procedures (though he admitted they were not consistent with the state’s requirements).

MD Delegates Duties

Dr. Roy further testified that it had become a hassle for him to call in or write prescriptions for the pretreatment numbing cream. So, he gave his nurses a standing order to call the pharmacists with his license number when patients needed the numbing cream. Later, he expanded this process to include other prescriptions. In addition, it became clear from Dr. Roy’s testimony that there were no written standards or procedures for:

  • Dr. Roy’s scope as a supervisor,
  • The circumstances under which the nurses should contact Dr. Roy about a patient’s condition,
  • Record keeping requirements,
  • When the nurses could implement treatment changes without checking with Dr. Roy,
  • How the nurses should respond upon facing abnormal situations or adverse reactions, and
  • Dr. LeMond’s or Lola’s roles other than an understanding that the office would be run with integrity and that Dr. LeMond would handle the business aspects.

Until being served with the lawsuit, Dr. Roy knew very little about Anita. He admitted he never reviewed her charts when he was the practice’s medical director and never authorized her prescriptions, other than possibly the numbing cream. Dr. Roy further said he was unaware of prescriptions called in for Anita, including the Vicodin prescription.

Dr. Roy also reiterated that he was unaware that tattoo removals were taking place at Le Laser. He said he asked Tina at a later date why she was doing laser tattoo removals and she responded that she was pressured into it. However, Dr. Roy was unsure whether she was being pressured by Dr. LeMond or by Lola.

Patient Testifies

At her deposition, Anita showed the defense attorney her scar, which was a 2.5-3 inch, oval-shaped scar with rough irregular edges that were darker on the outside. The scar would be visible in a bathing suit but covered by most blouses. Anita testified that she had sharp, continual shooting pains in the area and that it itched and often kept her awake at night.

Anita also testified that she no longer felt attractive. She didn’t want to wear lingerie or make love to her husband because she was embarrassed by the scar. She also avoided going to the beach because she’d have to wear an “old ladies” bathing suit to cover up the area.

Defense counsel retained an expert who testified that Dr. Roy didn’t meet regulations governing a supervising doctor’s role. While the NCMIC defense team would have preferred that all the health care providers present a unified front, it was necessary to point out Dr. Roy’s egregious negligence to provide a strong defense for their clients, Tina and the LeMond estate.

As discovery progressed, the case became more problematic. For example, there was a strong possibility that witnesses would testify that both Dr. LeMond and Lola exerted pressure on Tina to expand the number of laser patients to make the business more profitable.

Mediation Ensues

The court ordered the parties to mediate. The NCMIC-assigned defense counsel for Tina and the LeMond estate consulted with Dr. Roy’s attorney before mediation. Dr. Roy’s attorney stated his client felt he wasn’t culpable and was withholding his consent to settle the case. However, he thought he would have Dr. Roy’s consent to settle before mediation took place.

At mediation, $37,500 was offered on behalf of Tina and the LeMond estate. Dr. Roy authorized his carrier to offer $10,000 along with the message that there was “no more money” and, if the offer was rejected, it would be withdrawn. Anita rejected the offer and Dr. Roy got up and left the mediation. This allowed the NCMIC-assigned defense attorney to negotiate a combined settlement of $50,000 on behalf of Tina and the LeMond estate.

Anita took her case against Dr. Roy to court and the jury returned with a verdict against him. As a result, Dr. Roy ended up paying $175,000, plus Anita’s attorney fees. NCMIC’s costs to defend Tina and the LeMond estate totaled nearly $80,000.

What Can We Learn?

Check your state statute. Regardless of how unique the sales pitch or how novel the equipment, be certain the opportunity is within your scope of practice. When in doubt, check with your state’s board of examiners.

If it sounds too good to be true, it probably is. A red flag should have automatically gone off in Dr. LeMond’s mind when he learned that the laser process he was considering could only be operated under medical supervision. That alone should have been fair warning that the chiropractic scope of practice in his state did not permit this activity.

Vicarious liability looms on the horizon. Staff is often considered an asset to a busy practice. However, there is commensurate liability associated with their actions. Some doctors do not adequately train and monitor their employees to ensure they are operating within legal limits. The doctor is the “captain of the ship,” and in this case, his staff clearly overstepped their boundaries in performing certain procedures. They did not have the proper instruction, direct supervision or oversight for the laser procedures.

Plan for the worst—it just may happen. In this case, what more could go wrong? Procedures were performed outside the scope of practice, the DC was using the license of a medical doctor, staff was not trained or monitored, the doctor died before litigation, legal and regulatory requirements created coverage issues, and protocols were breached. All these issues posed challenges for the defense in the ensuing litigation.

Know thyself and thy equipment. Clearly, lasers are useful for a variety of conditions. However, in this case, the specified wavelength was improper and the wrong laser was used for the wrong condition. These factors combined for the potential that something would go wrong and it did.

Consider the source. No matter which equipment you purchase or procedure you use, training should be provided by reputable sources. Think about being on the witness stand and having to admit that the only training you or your staff received was a lunch hour session put on by a salesman. In litigation, as in life, credibility is a doctor’s biggest asset. When destroyed, it is virtually impossible to regain.

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