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Key Negligence Factors in Client Litigation: An Industry Report

February 20, 2024

We are currently experiencing an epidemic of client litigations and court cases against clinics within our industry that are delivering either laser treatments or advanced peels with adverse reactions.

Our office has been inundated by legal firms who are seeking our expert advice in identifying potential negligence that is contributing to severe burns and in some cases, permanent scarring.

  • As there appears to be a recurring pattern of negligence, we feel compelled to warn the industry and encourage practitioners and business owners to review their protocols for lapses in their consistency.
  • What is amazing is that these incidences are not necessarily happening to unqualified practitioners, as many of them hold comprehensive qualifications and operate with highly credible devices, having also gained additional training from these companies. Yet the incidents of injury continue at an alarming rate.

Below, we have outlined some of the most common areas of negligence that we are repeatedly seeing. Please review these and ensure that your protocols are adhered to consistently to best practice standards, as this can help prevent potential adverse reactions.

No medical malpractice insurance

  • Surprisingly we are seeing this even with laser franchise owners. Please, renew your insurance and make sure that you are adequately covered for both liability and indemnity insurance.

Consent Forms not explained sufficiently

  • We regularly see Consultation and Consent forms presented to clients to read and sign without a practitioner being present to answer any questions and to ensure that the client fully understands any potential risks, and what they can expect from the treatment.
  • Please note that legally you are required to be present when the client reviews their consent form.

Job Cards not properly completed

  • We often see an initial setting determined for a laser procedure and the same setting used throughout all areas of the body, even over areas that experience different levels of sun exposure that would alter their Fitzpatrick skin type.
  • We regularly also see clients not being reassessed at consecutive visits to ensure correct settings are maintained, especially when visits may be spaced over several weeks or months apart and may even fall within different seasonal changes.
  • Additionally, the client may have experienced changes to their health, have been subjected to increases in sun exposure and are even on medication for health conditions that were not presented during their initial consultation.
  • These changes may not show any external manifestation; however, they could potentially contribute to changes in the client’s immune response that should be taken into consideration with appropriate adjustments to their laser or IPL settings.
  • Make sure each time a client returns for further treatment that you quickly reassess them for any changes and adjust your settings accordingly.

Language limitations

  • We are seeing several women of colour who, since coming to Australia, are seeking advanced treatments to lighten their skin or alleviate their pigmentation.
  • Following laser and advanced peels they often neglect to adhere to adequate sun protection or to follow through with the correct aftercare instructions because of a language barrier.
  • Please make sure that any treatment that carries risk is communicated thoroughly, and if necessary, an appropriate interpreter is present to communicate the instruction in a client’s native language.
  • You must ensure full comprehension of the risk factors and stress the importance that they adhere to the pre-and aftercare instructions.

Lack of a reporting policy if an adverse reaction occurs

  • We are regularly seeing clients who have experienced adverse reactions, (sometimes severe burns that result in permanent scarring).
  • What is disturbing is when clinic owners attempt to treat these conditions with inappropriate means, or just give the client a refund and let them seek their own medical care.

APAN practice standards

  • As part of APAN best practice standards, we require that all practitioners who are members work closely with a dermatologist or a cosmetic physician to refer their clients for medical care in the event of an adverse reaction.
  • Your primary duty of care is to first and foremost attend to the well-being of your client.
  • Do not attempt to rectify burns as this is now a medical issue and must be addressed by a medical professional who will determine the extent of the injury and the most appropriate treatment option.
  • You should immediately refer any injuries to your physician, this is your primary responsibility. You should also contact your insurance company for their support and advice.

We could easily write several pages on some of the disastrous incidences that we have witnessed resulting from a lack of a consultation form that fails to capture important information, as well as the mismanagement of injuries and burns or even allergic reactions that have been misdiagnosed and treated incorrectly.

Please note, consultation Forms need to be regularly updated to ensure they provide new information that will allow the practitioner to identify potential risks and take the necessary precautions.

Most of the consultation forms that we have witnessed are grossly deficient. They were designed over a decade ago, when many of the technologies we use today did not exist, not to mention before COVID-19 created increased levels of inflammation as well as sometimes an unstable immune system.

In summary

Make sure your consultation is thorough. 

  • Explore potential allergic tendencies, evidence of high inflammation, symptoms of a weak immune system, as well as the psychological state of your client.
  • Instruct them in detail about the importance of adhering to their pre and aftercare instructions, especially sun protection, particularly during summer months.
  • Follow through with a phone call the following day to ensure all is well with their treatment and to identify if there are any concerns.

Do not ignore reports of pain during treatment. 

  • If your client tells you they are experiencing pain, do not ignore them and tell them they will get used to it. This could be a sign that your settings are incorrect.

Be specific with your worksheet 

  • Carefully review your client’s health and sun exposure before each treatment, don’t just go on the previous settings.
  • This is very common and the reason why injuries and burns occur is because of changes in the skin that have not been detected and the treatment setting amended.

It pays to be thorough, as such incidences are highly traumatic for all concerned, not to mention your confidence and reputation.

APAN has updated four documents with new information to prevent such incidences. You can purchase each document for $66 inclusive of GST or the complete kit for just $155 instead of $164.

It pays to be compliant.

If you require further assistance, please phone APAN on 076 5593 0360.

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