DALLAS – , and the average indemnity claim is close to $320,000, results from an analysis of national data have shown.
“Physicians seeking to undertake laser surgery in their practice should ensure they have proper training in the physics, safety, and techniques of each procedure,” study author Saami Khalifian, MD, said in an interview in advance of the annual meeting of the American Society for Laser Medicine and Surgery. “Legal precedent has demonstrated that nonphysicians performing laser surgery will likely be held to a standard of care and training corresponding to a physician with appropriate training. Therefore, physicians who delegate laser operations to their nonphysician agents are ultimately responsible for the actions of their agents.”
Dr. Saami Khalifian
For the period between June 2012 and December 2017, Dr. Khalifian and his colleagues identified 32 cases with public decision related to injury secondary to cutaneous laser surgery. The incidence of litigation related to laser surgery demonstrates an increasing trend since 1985, with peak occurrence in 2010 (total of 22 cases, which represents 10.7% of 206 cases reported in the entire data set since 1985). Laser hair removal was the most common litigated procedure prior to 2012, but since then has been surpassed by laser rejuvenation, which includes ablative and nonablative resurfacing, fractionated lasers, and intense pulsed light (47% of cases since mid-2012). Nonphysician operators accounted for a substantial subset of these cases (66% of all cases since mid-2012), with their physician supervisors named as defendants, despite not performing the procedure.
Dr. Khalifian noted that medical spas in the study “uniformly had unsupervised nonphysician operators in nonmedical office settings,” and therefore “had one of the highest litigation rates and number of cases. What is interesting about this, however, is that medical spas that are run by nonphysicians are also less likely to have medical liability insurance to satisfy a potential malpractice claim and therefore would be less likely to be pursued by a plaintiff’s attorney. Despite this, they had one of the highest patient injury rates, which is likely underrepresented based on the lack of malpractice insurance to be pursued in a legal claim.”
The researchers also found that delegated procedures were most frequently litigated against regardless of subspecialty of supervising physician (66%). Of the preventable causes of action, the most common was failure to obtain an informed consent (34%) and negligence (50%). Of the 32 cases with public decisions, 17 (53.1%) resulted in decisions in favor of the plaintiff. The mean indemnity payment was $318,832.
“Our current work evaluating data from 2012-2017 is consistent with our prior work dating back to 1985 and demonstrates again that nonphysician operators account for the majority of cases of legal action,” Dr. Khalifian said. “In fact, there is an increasing trend since about 2008 for a higher proportion of cases being performed by physician extenders and nonphysician operators. Despite physicians acting as supervisors and not the actual laser operator they are nonetheless named as defendants in legal claims,” he added.