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Hair-Removal Injury Claim Tossed in Texas

AUSTIN (CN) - Injury lawsuits against doctors over laser hair removal qualify as medical-treatment claims and thus require expert health care testimony under Texas law, the state's high court ruled,

In a July 2009 complaint, Veasna Sok claimed that she was unhappy with her laser treatments at Bioderm Skin Care LLC and complained to the laser operator.

Quan Nguyen, a medical doctor at the office, then allegedly reviewed Sok's medical file and instructed the operator to increase the laser intensity.

Sok said she developed burns and scars on her leg for which her doctor prescribed topical burn cream.

Bioderm and Nguyen moved to dismiss the suit in Dallas County Court by claiming that Sok failed to serve an expert report within 120 days of filing her original petition as required for a health care liability claim under the Texas Medical Liability Act.

In refusing to dismiss, the trial court refused determined that the laser use did not constitute "treatment."

An appellate panel affirmed, but the Texas Supreme Court unanimously reversed Friday.

The 14-page ruling emphasizes that the high court has an established "rebuttable presumption" in such cases involving physicians that such a claim is a health care liability claim.

"Expert health care testimony is needed to prove or refute Sok's claim that Bioderm and Dr. Nguyen breached the appropriate standard of care, and therefore Sok has not rebutted the presumption," Justice Eva Guzman wrote for the court. "Because Sok filed a health care liability claim but failed to serve an expert report as required by the Medical Liability Act, we conclude the court of appeals erred in affirming the trial court's denial of the motion to dismiss."

Nguyen and Bioderm must be physicians or health care providers for the rebuttal presumption to apply, the ruling notes.

Here Nguyen is the sole owner of Bioderm and has the power to manage it and establish policies, the court found/

"No party disputes that Dr. Nguyen is a physician as defined by the Medical Liability Act," Guzman wrote. "Rather, the crux of the parties' disagreement on this question is whether Bioderm qualifies as a health care provider. Because Bioderm is an affiliate of a physician, we conclude it is a health care provider under the Medical Liability Act."

Guzman also concluded the rebuttable presumption applies because Sok's claim is based on facts implicated in the defendants' conduct during her care.

"Sok alleges her injury was caused by the care or treatment for laser hair removal she obtained from Bioderm," the opinion states. "Her medical records indicate Sok was Dr. Nguyen's patient, as she signed a 'consent to treatment' form, agreeing to 'grant permission to the Medical Professional and their assistants, to perform such medical treatment(s) during my visit as are prescribed by my Medical Professional.'"

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