The Court of Appeals of North Carolina (“North Carolina Appellate Court”) ruled in its July 20, 2021 opinion that the plaintiff’s claim regarding negligent laser hair removal was a North Carolina medical malpractice claim and not a claim of ordinary negligence: “We hold that Batts’ allegations involve medical judgment in determining the likelihood of injury resulting from the use of a laser during treatment. Therefore, Batts’ complaint should have been for medical malpractice, which requires a certification as outlined in Rule 9(j). It is undisputed that Batts did not include a Rule 9(j) certification with her complaint. Accordingly, we conclude that the trial court correctly dismissed her complaint.”
The Underlying Facts
The plaintiff filed her civil action against Ideal Image Clinics, PLLC, (“Ideal”) after she was allegedly injured during a laser hair removal procedure during which she noticed a burning smell followed by a spark and smoke. She based her civil action on four theories: (1) negligence, (2) gross negligence, (3) negligence per se, and (4) res ipsa loquitor. Ideal moved to dismiss pursuant to Rule 12(b)(6) of the North Carolina Rules of Civil Procedure. The trial court granted the motion and dismissed the case, and the plaintiff timely appealed.
North Carolina Medical Malpractice Law
Under North Carolina law, a medical malpractice action is defined as “[a] civil action for damages for personal injury or death arising out of the furnishing or failure to furnish professional services in the performance of medical, dental, or other health care by a health care provider.” N.C. Gen Stat. § 90-21.11(2)(a) (2016). Under the same statute, a “health care provider” is someone who “is licensed or is otherwise registered to engage in the practice of medicine.” § 90-21.11(1)(a). “Professional services” are acts or services “arising out of a vocation, calling, occupation, or employment involving specialized knowledge, labor, or skill, and the labor or skill involved is predominantly mental or intellectual, rather than physical or manual.”
Medical Malpractice vs. Ordinary Negligence
In medical malpractice claims, the injury must stem from activities that required clinical judgment and intellectual skill. In ordinary negligence claims, the injury stems from acts and omissions in a medical setting that were primarily manual or physical and which did not involve a medical assessment or clinical judgment.
Without an explanation how the plaintiff’s claim was for medical malpractice and not ordinary negligence, the North Carolina Appellate Court held: “We hold that the allegations set forth in Batts’ complaint sound in medical malpractice. Therefore, her complaint is subject to the pleading requirements set forth in N.C. Gen. Stat. § 1A-1, Rules 9(j)(1) and (2), which she failed to satisfy.”
Source Batts v. Ideal Image Clinics, PLLC, No. COA20-480.
If you or someone you know has suffered burns or other significant injuries as a result of laser hair removal in the United States, you should promptly seek the advice of a local medical malpractice attorney in your state who may investigate your laser injury claim for you and represent you in a laser hair removal lawsuit, if appropriate.
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