Many people have a wide array of procedures to choose from for the purpose of improving their appearance. The distinction between the two is not separated by a bright line rule for any reasonable individual to decipher. Day spas typically offer traditional non-invasive beauty treatments such as facials, body massages, reflexology, aromatherapy, etc. Medical spas offer invasive an non-invasive aesthetic procedures under the supervision of a physician, such as chemical peels, laser hair removal, varicose vein removal, collagen replacement therapy, and tattoo removal. The state of Tennessee does not define “medical spa” under its state law. One ambiguity that many medical malpractice attorney contend with in representing injured clients is whether the rendition of such are procedure sound in medical malpractice or ordinary negligence. One must construe the definition of “practice of medicine” in its proper scope from a practical and/or legal standpoint. The practice of medicine is defined by each state. It defines what constitutes the practice of medicine and what services can be preformed under the indirect supervision of a physician. Definition of the “practice of medicine” under Tennessee law – Any person who treats, or professes to diagnose, treat, operates on or prescribes for any physical ailment or any physical injury to or deformity of another. Tenn. Code Ann. § 63-6-204. Many states have medical boards that regulate physicians such as the Tennessee Board of Medical Examiners.
The alternative argument is that many treatments or services rendered by such spas is that they are aesthetic and/or cosmetology. Each state defines what constitutes the practice of esthetics or cosmetology. Under Tennessee law, “aesthetics” is defined to include the following practices: (a) Massaging, cleansing, stimulating, manipulating, exercising, beautifying, or similar work, with hands or mechanical or electrical apparatus, or by the use of cosmetic preparations, antiseptics, tonics, lotions or creams; (b) Placing orapplying of artificial eyelashes; or (c) Giving facials, applying makeup, giving skin care, or removing superfluous hair by tweezing, depilatories, or waxing. Tenn. Code Ann. §62-4-102 (2007). “Cosmetology” is defined to include the following practices: (a) arranging, dressing, curling, waving, cleansing, cutting, singeing, bleaching, coloring or similar work upon the hair of any person by any means; (b) caring and servicing wigs and hair pieces; (c) manicuring; (d) massaging, cleansing, stimulating, manipulating, exercising, beautifying or similar work upon the hands, arms, face, neck or feet, with hands or by the use of cosmetic preparations, antiseptics, tonics, lotions or creams; (e) placing or applying artificial eyelashes; or (f) giving facials, applying makeup, giving skin care or removing superfluous hair by tweezing,depilatories or waxing. Tenn. Code Ann. §62-4-102 (2007). Additionally, under Tennessee law, “electrologist” means any person practicing electrolysis for the permanent removal of hair; “electrology” means the art and practice relating to the removal of hair from the normal skin of the human body by application of an electric current to the hair papilla by means of a needle or needles so as to cause growth inactivity of the hair papilla and thus permanently remove the hair; and “electrolysis” means the process by which the hair is removed from the normal skin by the application of an electric current to the hair root by means of a needle or needles, whether the process employs direct electric current or short wave alternating electric current or combination of both, or by F.D.A. approved laser beam process designated for permanent hair removal. Tenn. Code Ann. §63-26-102. Many states have state cosmetology boards that oversee the practice of cosmetology. Tennessee does have a state cosmetology board, the purpose of which is to govern the practice of cosmetology. In total, the board consists of nine members appointed by the governor. Each division of the state should be re presented by at least two members. The law further defines what the qualifications of the board members should be. Tenn. Code Ann. §62-4-103. Tennessee also has a State Board of Electrolysis Examiners. Tenn. Code Ann. §63-26-104.
Another element to the ambiguity is whether the injury is caused by the physician or non-physician. As medical spas have not been defined under Tennessee law, there is no case law, nor are there any statutes addressing a medical spa’s liability when a physician commits medical malpractice. However, it can be presumed that case law and statutes related to medical malpractice and vicarious liability would apply where applicable. When a non-physician employee negligently performs a medical procedure. As medical spas have not been defined under Tennessee law, there is no case law, nor are there any statutes addressing a medical spa’s liability when a physician commits medical malpractice. However, it can be presumed that case law and statutes related to medical malpractice and vicarious liability would apply where applicable.
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