aicher good colleagues bad outcomes - spsscs november 9 th, she was ruled eligible for unemployment...

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GOOD COLLEAGUES WITH BAD OUTCOMES

SKIN CARE LAWSUITS THAT DIDN’T NEED TO HAPPEN

Aesthetician MalpracticeRobert H. (Bob) AicherASAPS General CounselSan Diego 2017

AESTHETICIAN MALPRACTICEIT ISN’T OFTEN, BUT WHEN IT DOES OCCUR, HERE’S WHY


Disclosures

None Sadly…

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How Often Are Aestheticians Sued?

Not often, and damages are low. Result:

Plastic surgeon insurance: $30,000/year

Aesthetician malpractice insurance: $250/year

Aestheticians: Low Liability = Low Cost

When Are Aestheticians Covered?

Employees are covered by employer surgeons

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Independent contractors are covered when legally supervised by employer surgeons



Independent contractors are covered when legally supervised by employer surgeons

Independent contractors are not covered when not supervised by the surgeon


Employees are covered by employer surgeons Independent contractors are covered when legally

supervised by employer surgeons Independent contractors are not covered when not

supervised by the surgeon Independent contractors are not covered when

working off-site on their own time

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Employees are covered by employer surgeons Independent contractors are covered when legally

supervised by employer surgeons Independent contractors are not covered when not

supervised by the surgeon Independent contractors are not covered when working off-

site on their own time All estheticians are covered if they threaten to testify

against the doctor in exchange for a release

What Are The Odds?

47,626 establishments in California (2012)

28,330 esthetician licensees

324,927 total Board of Cosmetology licensees

Aestheticians: only 8.7% of Board licensees http://www.barbercosmo.ca.gov/forms_pubs/sunset_report.pdf

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How To Get Sued for Greed

Falsify your credentials so as to get licensed

Offer legal procedures that exceed your scope of practice

Offer illegal procedures

Aesthetician Masquerading as a Nurse

Lisa Haney Bilodeau worked in the Haverhill public schools caring for physically disabled children since last summer -- students with down syndrome, epilepsy and cerebral palsy. "The medical care that the children required included the administration of medication, insulin and the administering of feeding tubes," Assistant District Attorney Tom Sholds said. A routine internal audit two weeks ago revealed Bilodeau was not a nurse. "The license number listed on the suspect, on the defendant's job application, was not a nurse number, rather that of an aesthetician," Sholds said. Bilodeau allegedly provided a copy of someone else's nursing license, substituting her own name when she was confronted. http://www.wcvb.com/article/haverhill-school-nurse-faked-credentials-cared-for-special-needs-kids-police-say/25329754

Nurse Masquerading as an Aesthetician

John Parker, who describes himself on Twitter as a 'celebrity non-surgical aesthetician', had given the woman a Polydioxanone non-surgical facelift, but she was not happy with the results. Polydioxanone (PDO) is a popular and supposedly painless procedure where dissolvable thread is injected into the skin using needles to tighten sagging skin, and Parker gave the woman the treatment to her face, forehead and neck at the cost of £2,000 in September 2014.

She complained to Trading Standards, and was referred to the Nursing and Midwifery Council (NMC), who began an investigation into Parker, a registered nurse. However, the woman withdrew her complaint when Parker offered to give her back her money in exchange for her dropping the case. He has now been cautioned by the NMC, after a panel found he had deliberately attempted to frustrate the investigation into his fitness to practice by refunding the money.

Parker has also previously admitted to lying about having a celebrity client to gain business, and in June 2014 was handed a two year caution order by the NMC for giving botox without a prescription and using an unlicensed treatment to remove a vein. http://www.dailymail.co.uk/news/article-3537532/Self-styled-celebrity-Botox-expert-offered-unhappy-facelift-patient-2-000-refund-dropped-complaint-against-him.html

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Terrible Results Produce Terrible Lawsuits

Terrible results are always trouble, especially if your client is a celebrity

Get a Terrible Result With a Celebrity

March 8, 2017--LOS ANGELES, CA -- An actress well-known in Brazil was awarded $1.16 million Wednesday in her lawsuit against a Beverly Hills cosmetic surgeon who she said caused her to lose job opportunities in 2010-2011 because a facial procedure left her face looking enlarged and swollen. The Los Angeles Superior Court panel deliberated for about 1-1/2 days before finding in favor of Rita Guedes and against Dr. GaroKassabian.

http://patch.com/california/beverlyhills/brazilian-actress-awarded-1-16-million-botched-beverly-hills-cosmetic

Offer legal procedures that exceed your scope of practice

Electrolysis

Teeth Whitening

Permanent Make-up

Botox

Dermabrasion deeper than the outermost layers of the epidermis

Microblading

Lasers

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Scope of Practice is State by State

https://www.newbeauty.com/hottopic/blogpost/10615-nevada-botox-bill/

Nev. considers restricting who can inject Botox, fillers

State senators in Nevada are considering a bill that would bar medical assistants, aestheticians and dental hygienists from injecting soft tissue fillers and wrinkle relaxers into patients. "A qualified medical professional that takes on the responsibility of injecting toxins and fillers should have the technical skills required with in-depth knowledge of anatomy and physiology," plastic surgeon Goesel Anson said in support of the bill.

Offer Procedures in an Unlicensed Facility

Offer Illegal Procedures: Fish Pedicures

Not only does that sound terrible, but California says since you can’t disinfest the fish, and you can’t disinfest the tub with the fish in them, then you have to throw them away after each use. http://www.barbercosmo.ca.gov/forms_pubs/publications/fish_peds.pdf

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Botox

Aestheticians may not use needles in California. In Nevada, Senate Bill 101 (2-3-2017) seeks to make it illegal for aestheticians, medical assistants and dental hygienists to inject

Botox and fillers.

Nurse Fired for Questioning Botox Source

A nurse, Sheena L. Waterhouse, was fired for questioning whether Avalon Laser’s (a San Diego med spa) source of Botox was FDA approved. On August 19, 2016 she filed a wrongful termination lawsuit. On November 9th, she was ruled eligible for unemployment benefits as her inquiry did not constitute misconduct justifying her termination. http://www.sandiegouniontribune.com/news/watchdog/sd-me-botox-case-20161114-story.html

Microblading/Microstroking(permanent makeup/tattooing by any other name)

An aesthetician license is not required in California, but you have to register yourself and the business with the local health and police departments, demonstrate 6 months training, including bloodborne pathogen training, and a hepatitis B vaccination, or proof of immunity. And your shop must have non-absorbent floors.

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Microblading Can Also Go Really Wrong

http://ktla.com/2017/03/29/microblading-dangers-health-smart/

Aesthetician Tools Illegal in California

Aesthetician Reported Cases: Rare

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Reported Decisions: Aestheticians

In re the Marriage of Susann MargrethBonds and Barry Lamar Bonds (CA Supreme Court August 21, 2000) 24 Cal. 4th 1 [1988 pre-marital agreement of unrepresented aesthetician and represented professional baseball player deemed consensual and binding]


Anastasiya Komarova v. National Credit Acceptance, Inc. (CA Court of Appeal, 1st

District, June 25, 2009) 175 Cal. App. 4th 324 [Esthetician working at An Essential Day Spa in Sunnyvale, California. Improper debt collection efforts when proper debtor wasAnastasia with different social securitynumber. Plaintiff won $197,905 in damages for the violations of the Act:  $2,905 for economic loss, and $195,000 for noneconomic loss, over a $7,872.98 which she never owed.]


Salvatore D. v. Shyou H. (NY Supreme Court, Appellate Division, First Department, October 20, 2011) 88 A.D.3d 548, 931 N.Y.S.2d 53 [Aesthetician ordered to pay $950/month child support, upheld on appeal. The Support Magistrate found incredible respondent's testimony regarding her employment (her stated expenses were more than twice the income reflected on her tax return), considering her celebrity clients and 22 years of experience.]

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Margaret A. v Shawn B. (NY Supreme Court, Westchester County, March 15, 2011) 31 Misc.3d 769, 921 N.Y.S.2d 476 [Former aesthetician, 3-1/2 year marriage to a Harvard MBA, with 3 children. She was awarded marital support of $10,424.59 per month: $6,217.42 per month for temporary maintenance and $4,207.17 per month for child support, despite husband being temporarily unemployed.]


Matter of Audia N. Denton (Commissioner of Labor) (NY Supreme Court, Appellate Division, Third Department, May 06, 2004) 7 A.D.3d 869, 776 N.Y.S.2d 140 [no unemployment benefits to aesthetician refusing to work new schedule identical to her original work schedule simply because she wanted to be available for part-time advertising jobs]

If Not Cases, How About News Reports?

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Aestheticians in the News: Not Guilty of Murder for Hire

http://www.lamag.com/longform/aesthetician-arrested-murder/

The Popular West Hollywood Aesthetician Who Was Arrested for Plotting to Murder Her Rival

September 23, 2015

After a jury finds West Hollywood skin care expert Dawn DaLuise not guilty of soliciting the murder of a professional rival, the two men DaLuise blamed with derailing her life—Nicholas Prugo and Edward Feinstein—are arrested for stalking and solicitation of rape.

Aestheticians in the News: Her Best Friends Plead Guilty to Cyber Stalking

http://www.latimes.com/local/lanow/la-me-ln-bling-ring-stalking-20160912-snap-story.htmlSeptember 12, 2016: A leader of the "Bling Ring" — the celebrity burglary scheme that drew headlines and inspired a movie of the same name — and another man pleaded guilty Monday to stalking a West Hollywood skin-care guru after a judge gutted the case by tossing out the more serious charge of solicitation to commit rape.

Nicholas Prugo, 25, and Edward Feinstein, 32, pleaded guilty to one misdemeanor count each of stalking Dawn DaLuise, the proprietor of a “skin refinery” that catered to celebrities, according to the Los Angeles County district attorney’s office.

Aestheticians in the News: Workers Comp Fraud

http://www.lni.wa.gov/News/2016/pr160222a.asp

Concealing job as aestheticianFebruary 22, 2016: Johnston is accused of stealing more than $16,000 in wage replacement payments while signing official L&I documents that she wasn't working due to a workplace injury. In reality, charging papers say, she was working as an aesthetician at a medical services spa in Edmonds from September 2012 through February 2013. She hid the fact she was working from L&I, her attorney, her L&I vocational counselor and the doctor who approved her to receive wage replacement benefits. Johnston originally injured her left hand while working for a Bellevue salon and spa in 2007.

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Aestheticians in the News: No Muslims Policy

http://www.telegraph.co.uk/news/uknews/crime/11997334/Woman-arrested-over-beauty-salons-no-Muslims-Paris-attack-post.html

Woman arrested over beauty salon's 'no Muslims' Paris attack post15 Nov 2015 - A 43-year-old woman has been arrested in connection with a "racially abusive" posting on a beauty salon's Facebook page which read: "Blinks of Bicester are no longer taking bookings from anyone from the Islamic faith whether you are UK granted with passport or not" and "Sorry but time to put my country first.“

Police arrested the woman from Bicester, Oxfordshire, after people took to social media to complain about the comments. Laura Burt wrote: "Thank God you have been arrested! Foul woman you deserve all you get!"

Aestheticians in the News: First, Assault a Cosmetology Board Inspector

http://www.tmz.com/2008/08/14/cops-celeb-facialist-eats-it/

Aestheticians in the News: Then the Cosmetology Board Investigates

https://www.breeze.ca.gov/datamart/publicRecordDetailsCADCA.do?tableid=1082

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Aestheticians in the News: Then Your Daughter Forces Your Company Into Bankruptcy…

https://www.inforuptcy.com/news/wsjcom-bankruptcy-beat/sonya-dakar’s-famed-hollywood-spa-enters-chapter-11

May 2, 2012: The parent company of Sonya Dakar Skin Clinic, swanky West Hollywood spa to the stars, filed for Chapter 11 protection Tuesday. Founded by esthetician Sonya Dakar in 1971, Sonya Dakar Skin Treatments at the Sonya Dakar Skin Clinic include $450 facials, $350 diamond peels and spa days with prices only available on request.

The success of the spa and skincare line, however, has come at a high cost, leaving the Dakar family embroiled in numerous legal battles that have pitted Sonya Dakar, her son Yigal and her daughters, Daniella and Michal, against Sonya’s now-estranged husband, Israel, and her son Natan.

The company was put in bankruptcy by Michal Dakar, who says she’s president of the company but that Sonya Dakar owns 100% of the equity.

Aestheticians in the News:Then You File for Personal Bankruptcy

http://blogs.wsj.com/bankruptcy/2012/05/03/sonya-dakar-follows-her-clinic-into-bankruptcy/

Sonya Dakar Follows Her Clinic Into Bankruptcy

By STEPHANIE GLEASON

May 3, 2012 3:59 pm ET

Only one day after her daughter put Sonya Dakar’s Hollywood skincare clinic into bankruptcy, the esthetician to the stars filed for Chapter 11 protection herself.

Although she’s filed for bankruptcy, the filing shows just how successful her spa and skincare line have been: Sonya Dakar listed between $10 million and $50 million in assets, according to documents filed with the U.S. Bankruptcy Court in Los Angeles. She has between $1 million and $10 million in liabilities, with much of her debt arising from legal fees. Much of that debt likely stems from the multiple lawsuits members of the Dakar family have brought against each other since 2008.

Aestheticians in the News: Then Probation

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Aestheticians in the News: Then Life Goes On…

Aestheticians in the News: Run a Spa Without MD Supervision

https://thedoipage.wordpress.com/

Los Angeles Day Spa Closed Due to Unlicensed Practice of Medicine

Posted on January 5, 2017 by DOI Staff

The owner/managers of Zena Day Spa and three of their employees are facing felony charges in Los Angeles County Superior Court as the result of an investigation conducted by “Operation Safe Medicine,” a task force within the Department of Consumer Affairs’ Division of Investigation Health Quality Investigation Unit whose mission is to investigate unlicensed activity and unsafe practice of medicine. The spa, which was located on Sepulveda Boulevard in Culver City, is now closed.

Fouad Nouri, a physician, allegedly aided and abetted the unlicensed activity of Mikhaiel Ayad Mikhaiel, the spa’s owner. After Mikhaiel’s death, his wife Reda Fakery Mikhaiel, aka Reda Mikhiael, a cosmetologist, managed the spa and allegedly allowed employees to perform cosmetic procedures, including Botox and intense pulsed light laser treatments, on patients who had not received an examination by a doctor or nurse practitioner. The investigation was initiated after a patient complained of third degree burns and scarring to her face after receiving intense pulsed light laser treatments at the spa in 2013.

Lasers and Chemical Peels: The Real Liabilities

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Bikini Model Burned by Aesthetician’s Laser

http://www.wsmv.com/story/28815569/woman-says-botched-laser-hair-removal-left-her-with-burns

Woman says botched laser hair removal left her with burnsNASHVILLE, TN (WSMV) Apr 29, 2015 7:32 PM PDT

A Midstate woman, who is a bikini model, asked not to be identified. In preparation for a photo shoot next week, she turned to laser hair removal. She said she uses the procedure at least once a year. The model said the procedure caused burns on her legs and bikini line that have persisted for more than a week.

The procedure was done by an aesthetician. In Tennessee, aestheticians receive their licenses through the board of cosmetology, which falls under the Department of Commerce and Insurance, not the Department of Health. But the Department of Commerce and Insurance has no direct oversight over laser hair removal procedures in general, a spokesperson said.

State law does not address whether a medical doctor must physically be in the room while an employee performs such a procedure. The woman’s lawyer said he expects to file a lawsuit within the next few months.

Even though only 100 cases involved the operation of the laser device by a physician, 146 cases named the physician as a defendant. In contrast, of the 66 non-physician operators, only 49 were named as a defendant. Finally, in 12 cases, the plaintiff sought to recover damages from the manufacturer of the laser. It should be noted that seeking recovery from one party does not preclude naming additional parties as defendants. These findings are summarized in Table 2.

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Doctor Sued for Taking Aesthetician’s Advice

http://caselaw.findlaw.com/mn-court-of-appeals/1572433.htmlSusan Zwaschka v. Patrick Carney, MD (MN Court of Appeal, June 27, 2011, unpublished decision) In 2007, Zwaschka, an attorney, asked aesthetician Jeanne Jellison if she could try something more corrective for her skin. Jellison suggested a “medical grade treatment.” Dr. Carney then performed a chemical peel using 30% TCA. Zwaschka testified that about 20 to 30 minutes into the procedure, she began to experience pain that “was worse than anything” she had ever felt before.

As Dr. Carney completed the peel on the right side of Zwaschka's face, Jellison pointed to a spot on Zwaschka's right cheek that she believed he had missed. Dr. Carney applied the chemical to that area, even though he testified that he did not believe that he had missed the spot.

Dr. Carney told Zwaschka that she should blame him rather than herself and that he had contacted his malpractice-insurance provider. The chemical peel caused superficial second-degree burns that left Zwaschkawith permanent scars on her right cheek, on her chin, and above her lip. The jury awarded damages of approximately $1 million.

Dermatologist Banned from Cosmetic Surgery

http://www.startribune.com/dermatologist-banned-from-cosmetic-surgery-by-state-board/198883751/

MARCH 19, 2013 - A Twin Cities dermatologist has been banned from performing breast augmentations or reductions, tummy tucks, face-lifts or certain facial surgeries under a disciplinary order issued by the Minnesota Board of Medical Practice.

(1) November 2007 chemical peel on Susan Zwaschka, an attorney who was later treated by a plastic surgeon for her injuries.

(2) September 2010, after performing an implant on the woman’s left breast without problems, Carney stopped the procedure on her right breast after she complained of pain. He tried it again several days later, but the patient again asked him to stop because of “extreme pain.” The woman later saw a plastic surgeon for corrective breast surgery.

(3) July 2008 tummy tuck: within a day of the procedure, part of the incision turned purple. Two weeks later, after the area had turned black, the patient sought treatment at a hospital ER.

(4) In 2000, he was reprimanded, fined and ordered to practice with various restrictions for engaging in “inappropriate conduct” with a female patient. He also was required to undergo a psychiatric assessment, which revealed a depressive disorder and a personality disorder with “narcissistic features.”

So What Have We Learned about Aestheticians?

They are low risk liabilities

Their malpractice insurance is a bargain

Their scope of practice varies widely from state to state

They shouldn’t be giving medical advice, such as “You missed a spot”

Lasers and chemical peels are best left to those who appreciate the danger

Microblading is best left to tattoo artists

Try not to work for a depressive personality with “narcissistic features”

Your plastic surgeons are trying to do the best they can. Help them succeed by staying out of trouble.

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aicher good colleagues bad outcomes - spsscs november 9 th, she was ruled eligible for unemployment...

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