Without an Expert Report, Negligence Cannot be Proven in Laser Hair Removal Burn Case

Court: Court of Appeals of Texas, Sixth District, TexarkanaJurisdiction: FederalCase Name: Stanford v. CannonCitation: 2011 Tex. App. LEXIS 4754

Facts

In the original case, the plaintiff had sought cosmetic laser hair removal. Prior to the procedure, the plaintiff completed a medical history questionnaire. He also signed a consent form outlining the mode of action of the procedure, the potential benefits of the treatment, the probability of success, and the possible complications of the treatment. The plaintiff gave his consent to allow the medical personnel at the hair removal clinic, under the supervision and control of a physician, to perform laser hair removal surgery. The plaintiff subsequently suffered scarring of and second-degree burns to his genitalia and sued for negligence. He alleged that the technician’s improper use of the hair removal device and failure to stop on time caused his injuries. He further claimed that the supervising physician was vicariously liable as the owner of the clinic.

The plaintiff claimed this was not a health care liability lawsuit, arguing that his allegations were common-law negligence and were regulated by the standard of ordinary care. The trial court accepted this argument and rejected the defendant’s motion to dismiss. The defendants appealed this decision, arguing the case was a health care liability claim and, again, seeking the case to be dismissed since the plaintiff had not filed an expert report.

The Laser Hair Removal Expert

Upon appeal, the appellee contended that since laypersons routinely operate laser hair removal devices without medical supervision or guidance, there was no need for expert medical testimony. The appellant argued that the knowledge of performing laser hair removal surgery was outside that of a layperson, and, thus, laser hair removal expert witness testimony was needed to prove each of his claims of negligence.

Discussion

The court held that the claim was that of health care responsibility. Therefore, the appellee was required to submit a laser hair removal expert report for a number of reasons, firstly, since medical records were produced in connection with each of the two procedures performed. Also, the court explained this was a health care matter since the supervising doctor signed the report, showing his agreement with the treatment provided. Further, the appellee had been designated as a patient, signed a consent form, and provided a comprehensive medical history.

The court also discussed that laser hair removal expert witness testimony was needed to prove negligence. The court observed that while the technician was qualified in the use of a laser hair removal tool, she also sought medical advice on the appropriate settings in this particular situation. Further, the court noted that “the question of the skillful and proper use of a laser hair removal device is a question requiring expert testimony from a medical or health care professional.” The court believed that expert medical evidence was needed to determine whether the laser hair removal device was correctly calibrated, whether the proper attachment was used, and whether the surgery should have been performed in a shorter period. The court concluded that such information did not fall within the common knowledge of the general public and required laser hair removal expertise.

Held

The appeals court reversed the judgment and the case was sent back to the trial court for further proceedings.

Key Takeaways for Experts

This case illustrates why expert witnesses are needed in cases of negligence. In this case, the appellant argued that a layperson would not have the knowledge behind performing laser hair removal surgery to which the court agreed. An expert’s expertise is used to explain certain aspects of a case that the jury may not understand. This is why it’s important that experts have the expertise a layperson may not have.