Laser Hair Removal is not a Health Care Liability Claim
The Dallas Court of Appeals recently joined with the Fort Worth Court of Appeals and theCorpus Christi Court of Appeals in holding that a claim arising from a laser hair removal procedure is not a Health Care Liability Claim subject to Chapter 74 of the Civil Practice and Remedies Code. Two other appellate courts--theHouston Fourteenth Court of Appeals and the Amarillo Court of Appeals--have arrived at different holdings.
In Bioderm Skin Care, LLC v. Sok, the plaintiff suffered burns during a laser hair removal procedure and subsequently brought suit against the treating company and its supervising M.D. The plaintiff did not file an expert report. After the trial court denied the defendants' motion to dismiss, they appealed.
The court of appeals held that the laser hair removal procedure was not a health care liability claim because the person who performed the procedure was not a licensed physician and the plaintiff was being treated only for unwanted body hair instead of a medical condition. The only time the plaintiff received medical treatment was when the medical doctor examined her, diagnosed her burn, and prescribed a cream for the burn.
As a side-note, the court distinguished the Houston Fourteenth Court of Appeals' opinion by pointing out that the plaintiff herself in that case had affirmatively pleaded her claim as a health care liability claim. This distinction is interesting since the courts have generally held that the underlying nature of the claim, rather than any characterization given the claim in the pleadings, is the controlling factor.
The court's opinion may be found here. Given the conflict between the intermediate courts of appeals, this case would seem to be a likely candidate for review by the Texas Supreme Court.
David Walsh at Chamblee Ryan has advised me that the Texarkana Court of Appeals has also decided one of these cases and now there's a 3-3 split. The case is Stanford v. Cannon, Appeal No. 06-11-00011-CV. Also, he noted that the Texas Supreme Court has granted review of one case--Ghazali v. Brown, No. 10-0232, which is set for argument September 13, 2011. Don Cruse has blogged on the issue at scotxblog.com.