Medical Spas Acting Beyond Their Expertise: Adverse Complications Resulting in Potential Litigation
TASA ID: 3797
The very term "medi-spa" or "medical spa" raises a conundrum which the industry does not want to address. Is this a medical facility which, therefore, should meet the standard of care expected of physicians? Is this a spa facility which conjures expectations of a pampered experience consisting of massage, nourishment, meditation and the like? Or is this a combination of the two? Clearly, the public is unable to differentiate between services rendered which are covered by the statutes of the medical practice act of each state and those which are regulated by statutes designed for retail services. Specifically, clients interpret recommendations for services as medically advisable. When a physician is involved in the management of these facilities, litigation involving standards of care and malpractice, as well as personal injury, may result. In cases where a spa facility acts as a broker for cosmetic services and contracts with a physician, issues such as practicing medicine without a license, personal injury, and premises liability may arise.
Facilities which call themselves medi-spa or medical-spa are proliferating across the United States. These businesses appear to use a common name to describe three kinds of facilities. The first are traditional spa environments which contract with a physician to provide services regulated by state departments in charge of licensing doctors. The second are spa environments created and owned by physicians, and the third are physician offices which provide spa services as an adjunct to their medical services, though what is medical and what is spa become rather blurred. Each of these environments creates a confusing solution to the non-discriminating consumer.
The traditional spa environment is found in health clubs and stand-alone spas which traditionally provided hair and nail care and possibly mind and body treatments, such as massage and meditation for a relaxing and rejuvenating experience. These establishments found the allure of providing Botox injections, facial augmentation services with injections of fillers, and finally laser services (most notably for hair removal), profitable and marketable. Initially, minimally-trained estheticians and subsequently, nurse injectors, were used to provide these services. After publicity of poor outcomes due to performance of procedures which were not supervised by physicians, spas started hiring itinerant physicians as medical directors. These physicians were rarely on the premises and rarely provided the services themselves. In their absence, the same estheticians and nurse injectors, with the addition of certified physician assistants, would provide the medical services.
When some states began to threaten further regulations, many of the spas had physicians attend some of the procedures on the premises. Initially, these physicians tended to be emergency room physicians and subsequently were recruited from a host of non-surgical specialist physicians. In some cases, dermatologists and plastic surgeons filled these roles. What was common to most of these physicians was their recent introduction to the field of cosmetic medicine and cosmetic surgery and their training at weekend courses designed to provide instant education, ignoring their obvious dearth of experience.
Medi-spas created and owned by physicians were created by the success of the first type of spa. As physicians felt their incomes reduced by socio-political events beyond their control, and as their perception was that a medi-spa was a lucrative business venture, physicians of many backgrounds created such spas. While the field was initially populated by dermatologists and plastic surgeons, it soon mushroomed with emergency room physicians, pediatricians, family practice, and internal medicine physicians, to name the most common. Other than cosmetic surgeons (dermatologists, plastic surgeons, facial plastic surgeons, oculo-plastic surgeons, oral-maxillofacial surgeons, and some general surgeons), these physicians were new to the field of cosmetic enhancement and indeed showed little ability to correctly evaluate the etiology of cosmetic deficiencies or of the aging process. Their success generally relied upon successful marketing activities and delegation of procedures to estheticians, medical assistants, nurses, advanced practice nurses, and physician assistants. What is germane to the first and second type of medical spa is the minimal experience these physicians possessed in the field of cosmetic medicine and cosmetic surgery, and in many cases, deficits in their education. Recently, another variation of this theme has the spa or the physician-owner contracting with a surgeon to provide cosmetic surgery services in a non- accredited surgical setting.
The third medical spa scenario consists of a physician creating a spa environment in his office setting, which is the safest for those wishing to procure cosmetic medical or surgical services. This has traditionally been the purview of the dermatologist and the plastic surgeon. The deficit in the concept is that often the physician is busy treating patients, and cosmetic procedures are delegated to estheticians, medical assistants, nurses, advanced practice nurses, and physician assistants.
While the most commonly discussed adverse events in medical spas involve unanticipated alterations in skin pigmentation secondary to the inadvisable use of lasers on the skin, there are many more egregious injuries which are now being litigated. Three such cases illustrate patients being treated by "extenders," such as physician assistants, with minimal or no physician supervision, or by a physician not listed as a spa owner or contractor. The first concerned a 60-year-old female who was encouraged and subsequently treated by a physician assistant performing facial laser resurfacing that resulted in significant facial burns and subsequent toxic shock syndrome, nearly costing the patient her life. A second case involved a 60-something-year-old female under the same circumstances being treated with fractional laser resurfacing of the face, which resulted in extensive facial burns, facial scarring, and cosmetic disfigurement due to significant alterations of skin pigmentation. The third case involved a male body builder/entertainer who had laser lipolysis (liposuction) performed at a spa facility, resulting in significant burns to his body and subsequent disfigurement due to altered pigmentation and retracted scars. These cases occurred in three different states.
The concept of the medi-spa is not going to go away, and it appeals to the public in its simplicity. This is an evolving concept which will morph in the future. As physicians and their extenders try to take economic advantage of the medical spa environment, more areas of litigation will arise out of a host of issues, including lack of informed consent, lack of certification for surgical services, the inappropriate use of lasers by unqualified personnel, personal injury, and malpractice.
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