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Photofacial Laser Injury Claim Failed; Insufficient Expert Testimony on Causation


A man underwent a medical procedure using a photofacial laser device to remove pimples from his face. After the procedure, his face was severely burned, leaving scars on his cheek and nose.

 

The man sued the aesthetician who performed the procedure, the facility where the procedure was performed, and the doctor who supervised the aesthetician. The complaint alleged claims of medical negligence, negligent training and supervision, and negligent infliction of emotional distress. The aesthetician, facility, and doctor filed a motion for summary judgment. The man responded to the motion for summary judgment but did not provide a sworn affidavit from a doctor.

 

The Rankin County Circuit Court granted the aesthetician, facility, and doctor’s summary judgment motion. The court held that the man failed to provide an expert doctor’s opinion as to causation.

 

The Court of Appeals of Mississippi affirmed. The appeals court held that the evidence that the man submitted did not show a genuine issue of material fact on the issue of proximate cause.

 

The evidence that the man submitted did not show a genuine issue of material fact on the issue of proximate cause. Expert testimony in a medical malpractice claim must identify and articulate the requisite standard that was not complied with, the expert must also establish that the failure was the proximate cause, or proximate contributing cause, of the alleged injuries. The court found that the man’s designated physician expert provided opinions that did not articulate the requisite standard of care that was allegedly breached, nor did his opinions establish that any breach of that standard of care by the aesthetician, facility, or doctor proximately caused the man’s injuries. The man’s designated physician expert did not even provide a sworn affidavit, as part of the response to the summary-judgment motion, that established the requisite standard of care and that the aesthetician, facility, and doctor's breach of that standard was the proximate cause of the man’s injuries. The man’s designated physician expert was listed in the answer to the defendants' interrogatories as an expert. However, he was not listed under the interrogatory that identified who would be designated to testify as to the breach of the standard of care. The evidence that the man submitted alone was insufficient to establish a prima facie case of medical malpractice. Therefore, the man failed to dispute the aesthetician, facility, and doctor’s claims in their summary judgment motion and failed to show a genuine issue of material fact as to proximate cause.

 

The Court of Appeals of Mississippi affirmed the trial court’s grant of the aesthetician, facility, and doctor’s summary judgment motion.

 

See: Haley v. Jurgenson, 2015 WL 148885 (Miss.App., January 13, 2015) (not designated for publication).

 

See also Medical Law Perspectives, July 2014 Report: Injuries Resulting From Laser Procedures: Risks for Physicians, Technicians, and Manufacturers

 

 

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