Disfiguring Fillers May Support Doctor's Lawsuit
(CN) - A gynecologist who used her own face as an advertisement for her aesthetic medical practice may have a case over the injection that allegedly disfigured her, a federal judge ruled.
Yvette Gentry is an OB/GYN who specializes in treating skin conditions associated with aging. She enrolled in two workshops Empire Medical Training presented in San Francisco last year to expand the number of procedures she would be able to offer her patients.
William Horninger taught the workshops and allegedly identified himself as Dr. Horn, even though he is not a licensed physician.
Gentry said it was during one of the workshops when Horninger injected the adermal filler Prevelle Silk into a blood vessel in her forehead.
The injection allegedly caused Gentry immense pain and, five days later, "her skin began to swell up and a large area of Dr. Gentry's forehead turned a deep purple color," according to the complaint.
Gentry later learned that Prevelle Silk should not be injected into a blood vessel because of the associated risk of infarction or necrosis, which can cause tissue death and permanent discoloration.
Although Gentry's "scarring and bruising have diminished somewhat," they still remain "permanent, prominent, and noticeable," and have caused her physical and emotional harm, her complaint states.
Because of the scarring, Gentry "is no longer able to use her own face as an advertisement for prospective patients who are interested in aesthetic procedures," causing her medical practice to suffer, according to the complaint.
Gentry sued Empire Medical Training, its owner, Stephen Cosentino; and Horninger, on numerous counts, including battery, failure to warn, negligent infliction, and violations of the California Unfair Competition Law.
Empire Medical Training sought to compel the dispute to arbitration, based on the registration and terms & condition forms that Gentry filled out to attend the October 2012 workshops.
An arbitration clause, which appears below the signature line in smaller print, calls for all disputes to be handled by binding arbitration in Florida and to be paid for by the person attending the workshops.
U.S. District Judge William Orrick found that Thursday that the arbitration clause was unconscionable and, therefore, not enforceable.
"Hiding the arbitration clause in a jumble of language below the signature line in tiny print, requiring its customers to participate in arbitration in Florida for claims arising in California, and making those customers bear the entire costs of arbitration, even if they prevail and regardless of who initiates the arbitration, conveys a clear effort by Empire Medical to impose arbitration as an inferior forum that works to its advantage," Orrick wrote.
Orrick also found against Cosentino's assertion that the California court does not have personal jurisdiction over him because he was not present at the workshops.
Here, Gentry adequately pleaded that Cosentino directed his conduct and solicited his business in California by sending Horninger to California to put on the workshops and by being prominently featured in Empire Medical advertising and press releases directed at California, according to the ruling.
"Dr. Gentry has also pleaded more than conclusory allegations that Dr. Cosentino knew that Mr. Horninger falsely held himself out as a medical doctor and injected controlled substances into workshop participants," Orrick wrote. "She alleges that Dr. Cosentino personally witnessed Mr. Horninger inject someone with a drug at a workshop in 2009 and that he wrote a reply on a consumer website responding to an accusation that Mr. Horninger held himself out as an anesthesiologist at a workshop in Philadelphia."
Given that Dr. Cosentino purposefully sent his company to California to conduct the Empire Medical workshops, in addition to the allegation that Dr. Cosentino and Empire Medical are alter egos, it is reasonable to subject him to personal jurisdiction in California, Orrick ruled.