With the rapid evolution of the field of laser dermatology, it’s important for practitioners to understand "standard of practice" to avoid malpractice suits, according to Dr. David Goldberg, an attorney and director of laser research at Mount Sinai Hospital in New York.
To win a negligence case, plaintiffs must prove that physicians both had a duty to patients and breached that duty, and that doing so caused damages and that the damages were real and substantial.
Meeting practice standards is a key defense against breach of duty arguments. The idea is to demonstrate that laser skin surgery was done "in accordance with the standard of care. The standard of care is the way in which the majority of the physicians in a similar medical community would practice." Physician extenders are held to the same standard, Dr. Goldberg said (Sem. Cut. Med. Surg. 2013;32:205-208).
Doctors don’t need to demonstrate that they’re the best in the field, only that they "used the care and skill ordinarily possessed by a specialist in that field in the same or similar locality under similar circumstances," Dr. Goldberg noted. "Even if one method turns out to be less effective than another, a physician does not fall below the standard of care" if the method was an acceptable alternative, he said. Similarly, an "unfavorable result due to an error in judgment ... is not in and of itself a violation of the standard of care if the physician acted appropriately" before making the judgment call, he added.
A rock solid expert witness is key; "the standard of care is defined by some as whatever an expert witness says it is and what a jury will believe," said Dr. Goldberg. "If the jury believes an expert who testifies for a defendant doctor, then the standard of care in that particular case has been met." Expert witnesses need to back up their testimony by citing their own and others’ practices, plus journal articles, practice guidelines, and statutes, among other things, he emphasized.
It’s important that experts practice like other physicians do; otherwise these witnesses "will have a difficult time explaining why the majority of the medical community does not practice according to their way," Dr. Goldberg said.
Clinical practice guidelines can help prove that laser dermatologists followed professional customs, but an expert is still needed to "introduce the standard and establish its sources and relevancy," said Dr. Goldberg. That’s harder when, as is often the case, guidelines "contain disclaimers stating that they are not intended to displace physician discretion," he said.
The standards test doesn’t necessarily rule out innovation. "Laser surgeons often view themselves as artists in addition to scientists, customizing a treatment for a particular condition," Dr. Goldberg noted. Most clinical innovations fall short of rank experimentation. If a procedure wasn’t vetted by an institutional review board and wasn’t subject to other federal human research requirements, plaintiffs are going to have a hard time proving that "an actual given laser procedure is experimental," he said.
For instance, although "most would suggest that the safest technique for the removal of unwanted hair is by use of the Nd:YAG laser ... a physician using a non-Nd:YAG laser or light source that is also approved by the FDA for the treatment of unwanted hair in darker skin types may be performing laser treatment within the standard of care," said Dr. Goldberg.
Practice location matters, too. Dermatology laser centers aren’t often in hospitals, but when they are "a plaintiff may seek hospital committee proceeding minutes about the allegedly negligent physician," he said.
These individuals are not likely to get anywhere, however; courts have ruled that the "immunity of committee proceedings protects certain communications and encourages the quality review process," Dr. Goldberg noted. Incident reports, however, are a different matter, and less likely to be protected because they are "often more directly related to a single claim for malpractice," he said.
Dr. Goldberg said he had no relevant financial conflicts to disclose.