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  Clinical laser use and legal negligence
Laser surgery is a medical practice that has revolutionized surgical procedures. Its popularity can be estimated from the fact that in 2003 more than 100 million laser cosmetic therapies (hair removal, tattoos, pigmented lesions etc.) were performed by members of the American Society for Dermatologic Surgery.

However, though it has gained immense popularity it is also accompanied by issues of malpractice and hence legal outcomes. This has primarily happened due to a great degree of experimentation in the field coupled with the complications that arise by non-physicians or physician extenders performing laser procedures. Here is an overview of the two issues:

1. Experimentation with medical lasers

With the growing popularity of lasers, there is a trend among physicians to experiment and innovate. These often lead to practices that are not within the established regulations for the standard laser applications, as stipulated by the Food and Drug Administration. Though experimentation is regulated by the Department of Health and Human Services, they often remain unregulated. The problem is that though one can ascertain that a new laser is being applied experimentally, it is difficult to understand that whether a procedure is experimental. Moreover, some physicians get a little too ambitious and this could lead to legal hassles. Take for instance the case where a dermatologist uses an established laser hair removal procedure around the eyelashes and in the process injures the iris.

2. Application by non-physicians

The law regulates who has the expertise to perform a medical procedure. If non-physicians perform a procedure even within their parameters of duty, liability lies with the physician. Often this leads to legal issues resulting from doubts about expertise.

At this backdrop, it is important for a practitioner as well as a client to know about the nuances of medical negligence in laser therapy. Most of the legal wrangles occur in laser-assisted cosmetic procedures rather then the medical cases. The first step in a malpractice case is the issue of negligence, which must be ascertained on the basis of four factors, which are:

  • Duty
  • Violation of duty
  • Causation
  • Damages
The legal petitioner will have to prove the occurrence of all theses four factors in order to win a lawsuit.

Duty and breach of duty

This requires proof of a lack of duty on the part of the laser surgeon during treatment and the resultant harm caused. It must be some tangible proof and not mere discomfort to the patient. This involves the important issue of whether the procedure was performed according to the established standards of care, which is applicable in case of a non-physician as well. The standard of care can be defined as the common and safe approach of practice by the physicians in a related medical community.

The cause of action

The causative factors that led to negligence are generally guided by legal treatises, but the standard of care involved is not legally stipulated. It is generally based on the testimony of an expert witness in order to convince the jury. This is applicable in cases involving dermatologists, physician extender and even a researcher conducting a laser surgery.

Legal damages

If the petitioner can prove negligence to the jury then the laser practitioner will be legally held accountable for the damages caused to the patient party. On the other hand, the patient is liable if the jury is convinced by the expert testimony of the defendant. Here again the standard of care plays a big role.

Herein there are two aspects that you must remember. Firstly, if a practitioner uses any of the established procedures for the treatment of the same condition, which fails to be less effectual than the others are, it is not a case of negligence of standard of care. Secondly, if a practitioner makes an error of judgment that leads to an adverse outcome, it is not a breach of the standard of care if the practitioner followed the suitable measures before implementing his specialized assessment.

This apart, the four above factors are all applicable at the backdrop of the standard of care based on guidelines of practice.

Guidelines for practice

The benchmark of the standard of care is based on the laws, policies and rules of practice, stipulated in medical journals and texts. It is further reinforced by expert opinion. The standard of care is generally a national consensus but may vary state wise. Most commonly for litigation purposes, expert witnesses articulate the standard of care.

However, the concept of the standard of care is often fraught by debates and controversies in the medical fraternity, the legal system, public opinion and impractical expectations. For instance, the Nd:YAG laser is established as the safest hair removal method. However, it is perfectly all right for a physician to implement some other type of laser that is approved by the Food and Drug Administration, for hair removal in dark pigmented skin. This is would not amount to a breach in the standard of care.

In America, there has been a concerted effort on the part of the medical community to standardize laser treatment practices. The institutions involved are the American Academy of Dermatology, the American Society for Dermatologic Surgery, and the American Society for Lasers in Medicine and Surgery.

Other than these guidelines, an expert who will give the testimony in a legal case can also refer to the following to ascertain negligence.

  • Scrutinize the testimony of the defendant’s witness who should be an authority in the field concerned
  • In case the defendant admits negligence
  • In case the petitioner is the witness as well, an unusual instance where he or she is an expert with the acumen to adjudge the alleged negligence
  • In a case where the negligence is obvious to any layperson, without any expert help

The plaintiff can also seek the help of medical committees to corroborate his claim of negligence.

 

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