CHICAGO, IL. – September 11, 2019
California Malpractice Lawsuit Involving Delegation of FUE Dismissed
By: Robert Portman, JD and Megan LaSuer, JD, MHA
The plaintiff in Stephen McGlinn v. Chaffoo (Case No. 37-2017-00011463-CU-MM-CTL) has voluntarily dismissed his claims against Dr. Richard Chaffoo regarding a hair restoration procedure involving follicular unit excision (FUE) that Mr. McGlinn claimed was improperly performed by unsupervised technicians and caused him to suffer injuries. The court approved the plaintiff’s request for dismissal on July 15, 2019. The authors previously reported on McGlinn’s claims and Dr. Chaffoo’s defenses earlier this year. See article below. The voluntary dismissal means that the court will not issue a substantive decision on the merits of McGlinn’s claims.
Editorial Note: See related article on recent Medical Board of California report on the issue of delegation in hair restoration surgery, confirming that hair restoration surgery requires a medical license.
Robert M. Portman, JD and Megan LaSuer, JD, MHA are health care attorneys with Powers Pyles Sutter & Verville PC in Washington, DC, USA
GENEVA, IL. – June 4, 2019
Summary of Stephen McGlinn vs Chaffoo, Case No. 37-2017-00011463-CU-MM-CTL
Updated version of previous summary of April 7, 2019
By: Robert M. Portman, JD and Megan La Suer, JD, MHA
A surgical hair restoration procedure using follicular unit excision (FUE) technique, also (previously) known as follicular unit extraction, allegedly performed by technicians using a NeoGraft device, has resulted in a lawsuit that should be of interest to physicians who specialize in hair restoration procedures. The lawsuit was filed in 2017 in the Superior Court of the State of California, County of San Diego, by a patient, Stephen McGlinn, against Dr. Richard Chaffoo, MD, alleging medical malpractice in relation to the performance of an FUE procedure.
Plaintiff McGlinn asserts that he visited Dr. Chaffoo for a consultation after seeing Dr. Chaffoo’s in-flight advertisement for the “NeoGraft procedure.” McGlinn’s court documents allege that the advertisement did not explain that the NeoGraft procedure was used for follicular unit extractions. McGlinn further alleges that the advertisement failed to disclose whether the pictures were models or actual patients of Dr. Chaffoo who underwent the procedure.
Two months after the initial consultation, McGlinn alleges that he received an FUE hair transplant procedure with a NeoGraft device performed by two of Dr. Chaffoo’s office technicians. One technician, a registered nurse, allegedly had four years of training under Dr. Chaffoo on the NeoGraft device, in addition to three decades of prior experience on strip and robotic hair restoration techniques. The other technician was allegedly a “Neografter,” who was assigned to Dr. Chaffoo’s clinic through a placement agency. McGlinn’s court documents further allege that these technicians performed the hair restoration procedure on McGlinn without Dr. Chaffoo’s supervision.
McGlinn alleges that he was not satisfied with the results of his treatment and sought a second opinion from Dr. Kenneth Williams, a specialist in the treatment of hair loss disorders and hair restoration surgery. The complaint alleges that Dr. Williams informed McGlinn that his hair transplant had failed due to the “actionable negligence” of Dr. Chaffoo and his staff. Other McGlinn court documents allege that the “actionable negligence was due to an improper initial examination, improper surgical planning, and failure to provide sufficient information in order to provide an adequate informed consent.
In his complaint, McGlinn alleges that the hair transplant procedure was “performed in a manner below the acceptable standard or standards of medical practice.” McGlinn’s alleged injuries include, among other things, hair deformation, scarring, growth failure, psychological trauma, and monetary damages.
McGlinn claims he was “encouraged” to seek the Neograft procedure from Dr. Chaffoo by an allegedly false and misleading advertisement that he says created unrealistic expectations for hair restoration success. Although McGlinn signed an informed consent document prior to the procedure, he alleges that the document did not provide, nor did Dr. Chaffoo or his staff explain, the relevant information for McGlinn to fully understand the procedure, the possible alternatives, or post-operative expectations based on his advanced pattern of hair loss and limited donor hair supply, thus nullifying his ability to provide informed consent.
In a case of medical malpractice, liability turns on three elements: existence of a duty owed to the plaintiff, breach of that duty by the defendant, and proof that the breach was the proximate cause of the plaintiff’s alleged injuries. See Banerian v. O’Malley 42 Cal.App.3d 604, 611-612 (CA App. 1974). A plaintiff can only recover if all three of these elements are proved by a preponderance of the evidence. In California, the court will look to the actual professional standard, defined by actual or accepted practice within a certain profession, to determine whether a physician breached the duty owed to the patient. This professional standard can only be established by expert testimony. Both parties have submitted expert declarations by physicians specializing in hair transplant procedures.
McGlinn’s treating physician and expert witness, Dr. Williams, submitted a declaration stating that the standard of care in hair restoration surgery requires that the operating surgeon be physically present during surgery in order to perform the critical-to-quality steps (CTQS) of the hair transplant procedure, which are essential for a positive surgical outcome. Dr. Williams contends that the technicians who performed the CTQS, administered the anesthesia, and performed the actual procedure were acting outside the legal scope of their practice. Dr. Williams further states that these technicians were required to be under the direct supervision of Dr. Chaffoo during the entire procedure. In Dr. Williams’ opinion, because Dr. Chaffoo was not present and the technicians were not properly qualified, that the placement of grafts and creation of recipient sites in McGlinn’s scalp were poorly designed and executed, resulting in a failed surgery.
Dr. Chaffoo has filed a motion for summary judgment, contending that the undisputed facts in the case establish that he did not commit malpractice. Dr. Chaffoo claimed that McGlinn’s injuries are due to his own negligent actions, that McGlinn was fully informed regarding the procedure and outcomes, and that McGlinn voluntarily and expressly assumed all risks of the procedure. In support of his motion for summary judgment, Dr. Chaffoo’s expert, Dr. Grant Stevens, submitted a declaration stating, to a reasonable degree of medical probability, that Dr. Chaffoo and his staff complied with the standard of care at all times when treating McGlinn. Dr. Stevens noted that, among other things, Dr. Chaffoo took a thorough history and examination during McGlinn’s consultation, that the plan and assessment for McGlinn’s procedure was appropriate for a man his age and at his stage of hair loss, and that the follow-up care provided met the appropriate standard of care. Contrary to Dr. Williams’ testimony, Dr. Stevens states that it is regular industry practice in Southern California for hair transplant procedures to be conducted by technicians. Furthermore, Dr. Stevens concludes that Dr. Chaffoo did not cause or substantially contribute to McGlinn’s injuries because the injuries that he alleges he suffered are commonly-known risks of this type of hair transplant procedure.
The motion for summary judgment is awaiting a decision by the Court. We will continue to monitor this litigation and provide updates on any significant new developments.
Robert M. Portman, JD and Megan La Suer, JD, MHA are health care attorneys with Powers Pyles Sutter & Verville PC in Washington, DC, USA