A jury in Roanoke, Va., didn’t cane that the owners of a nail salon said they didn’t know they were using MMA and slapped them with a $150,000 judgment. If a “reasonable” nail tech would do it, you’d better be doing it too, or you could be held liable.
The verdict: $150,000. That’s the value a Roanoke, Va., jury placed on a woman’s natural nails. Carol Webb filed suit in 1995 against Top Nails in Roanoke for causing permanent damage to her nails with the use of MMA. Within weeks of having the acrylic nails applied, Webb says her nails blackened and began peeling off. To this day, she says, her nails remain stunted and discoloured, and her fingertips sometimes get numb.
Mark Loftis, the attorney who represented the owners of Top Nails, argued to the jury that his clients shouldn’t be held responsible because they didn’t know the monomer contained MMA. Webb’s lawyer countered that they should have known, and the jury agreed.
The damage to a salon’s — and an industry’s — reputation: priceless.
ABC News’ 20/20 filmed the trial, promising it would air Webb’s story this fall, along with the stories of “others who have suffered after getting fake nails with MMA,” 20/20 producer Candace Hewitt told the Roanoke Times & World News.
Webb not only prevailed in her personal claim, but her victory set a legal precedent as a jury for the first time put a, dollar value on fingernails damaged by a nail tech’s professional services. (MMA was named as the cause of the damage, but the jury placed the blame squarely on the salon and nail techs, saying they should have known it contained MMA and was not deemed safe for use on nails.)
If you haven’t already done so, there’s no time like the present to step back and evaluate your responsibilities as a professional nail technician. In this particular instance, MMA bore the brunt of the blame, but know that your professional responsibility to your clients extends beyond the products you use. Nor do you necessarily have to do anything wrong to be sued — as many salon owners have learned the hard way. One owner tells us she was sued twice in a two-month period — both times by clients who didn’t maintain their artificial nails, then blamed her salon for the resulting problems.
Rather than waiting until you’re in a position of having to react, the legal experts we consulted advise nail technicians and salon owners to take a proactive stance. Their advice: Understand your professional responsibilities and ensure that you not only meet but exceed the industry’s “standard of care.” And because you can’t control your client’s actions, all nail technicians and salon owners should carry professional liability insurance, which offers financial protection against claims of negligence.
Meet or Beat the Industry Standard
The owners of Top Nails were deemed negligent by a legal concept known as the “standard of care.” As attorney Gary Young explains, members of every profession have to use “reasonable care” in providing services.
“Reasonable care is defined in large part by the profession itself,” explains Young, a practicing attorney in Madison, Wis., and an adjunct professor at the University of Wisconsin Law School. “In a lawsuit, the details of reasonable care’ for a profession are fleshed out by expert witnesses from the profession who define what is and is not appropriate conduct.”
For example, in Webb’s case against Top Nails, nail technicians called as expert witnesses testified that a “reasonable” nail technician would have taken steps to learn the chemical composition of the monomer. Expert witnesses and the defense lawyer also could have cited OSHA regulations that require salons to keep Material Safety Data Sheets (MSDS) for all professional-use products on hand, and pointed out that those MSDS would name MMA as the primary chemical contained on the monomer. The widespread, ongoing coverage of the inherent risks of MMA in consumer and trade media establishes that a “reasonable professional” would not use it on nails.
Young emphasizes that the standard of care evolves and changes with an industry. For example, although it’s never been written down, the standard of care today for nail professionals in terms of salon sanitation and disinfection is much more stringent than the standard of 10 years ago. Back then, “reasonable” nail techs regularly re-used non-sanitizable implements such as orangewood sticks and files. Nor did they do anything more than rinse out a foot tub with clear water between clients.
With the promulgation of tougher state board regulations and recommendations, along with documented cases of client infections and the release of studies that demonstrate the colonization of bacteria on implements and in foot tubs, the “reasonable” professional knows she should not re-use implements that can’t be disinfected. As for foot baths, Young believes nail professionals nationwide must adopt the disinfection standards for foot baths set out by the California Department of Consumer Affairs, regardless of which state they practice in.
“The law changed there,” Young says. “If a problem arises and the client demonstrates the industry knew about the outbreak of infections in California and the resulting new standards set by the health department, that client has a strong case for negligence if you do anything less.”
By the same token, Young emphasizes that reasonable care doesn’t have to be perfect. “It’s care that other professionals would agree is appropriate,” he says. “If the industry knows there’s a better way to do something and a significant number of people do it that way, that’s what will be deemed reasonable.”
Eugene Gasiorkiewicz, an attorney and partner at Hanson & Gasiorkiewicz in Racine, Wis., believes nail techs should take care to exceed the industry’s minimum requirements. “The law very much views industry standards as basic requirements,” he explains. “You can be compliant with the minimum administrative rules, for example, and still be negligent. The best defense is state-of-the-art knowledge as opposed to compliance with regulations.”
Let Clients Know What to Expect
You can share some of the responsibility with clients by ensuring they’re equipped with the information they need to make informed decisions. Both Young and Gasiorkiewicz recommend informing new clients up-front of the risks and responsibilities of professional nail care. “The more you can put in writing to educate clients, the better,” Young maintains.
If nothing else, it’s a hallmark of good customer service to educate clients on what they can expect from the service and how they can maintain the results at home. You can then include a paragraph that tells them what problems to watch for, along with instructions on what to do. It could read something like this:
“A small percentage of clients may experience a reaction to one or more of the products used on their nails. If you experience any redness, swelling, sensation of heat, itching, or any other adverse signs, please contact the salon or your physician immediately to have the product removed and the condition evaluated.”
You can ask clients to sign an acknowledgement that they received the instructions, but Young questions the need. “If you try and introduce a legal formality into a long-term relationship, you risk offending the client,” he points out.
A release, or waiver, of liability goes one step further by asking the client to agree she will not hold you liable if something goes wrong. Not only can they be offensive in an intimate salon setting, Young says they’re also difficult to enforce.
Gasiorkiewicz does advise gathering some basic information on every new client. In addition to any basic health information you request, he recommends asking the client whether she’s had similar services previously. Too, he says, “Tell her that you’ll be using X, and ask if she’s ever had a problem with it before.” Keep notes on her client card in case future questions arise.
The Professional Knows Best
How many times have you done something on a client when it was against your better judgment? You know the ones — those brave clients who accidentally rip off a nail and come in before the bleeding has even stopped, insisting you apply a new artificial nail because she “can’t be seen like this!” Or how about the ones who demand you cover their white, crumbly nail plates or dark green stains—even when you recommend they see a doctor?
Next time, follow your first instincts and refuse the service, Gasiorkiewicz says. Remember the standard of care: If this turns out badly, will another professional agree it was reasonable to have done the service? The client may not be happy with your decision, but sometimes, it’s all a matter of how you handle it. Defuse her anger by emphasizing that you are watching out for her best interests.
If you do decide to go forward in a questionable situation, Young says to ask the client to sign and date an informed consent form before you proceed. “The informed consent simply says, ‘My nail technician has disclosed to me the following risks (and name them) of the service I’m requesting. I’m aware of these risks and understand that one of these things could happen to me, but I still want the service.’“
If a client comes in with damaged nails, document the pre-existing condition. Jason Coomer, an attorney in Austin, Texas, and founder of www.texaslawyers.com, advises asking her to sign a form in which she acknowledges the pre-existing condition and agrees you are not assuming responsibility for it. The form should state that she understands you will perform cosmetic procedures only and are not promising to permanently correct the condition. He also recommends taking a few pictures to keep with her client records — just in case.
Bad Things Can Happen to Good People
Doing something wrong doesn’t necessarily make you liable for the action, Young says. For example, accidentally nicking a client doesn’t make you negligent unless it is the result of a deliberate or reckless action or you don’t meet the reasonable standard of care. However, even an accidental cut can result in negligence if you don’t inform the client of the nick, administer basic first aid, and advise her to consult her doctor for further care instructions and with any questions.
So say it happens—you accidentally cut a client’s cuticle during a pedicure and she calls a week later to say she’s developed a bad infection. Whatever you do, don’t assume blame, but do give her your full attention and lend a sympathetic ear. As Young points out, many complaints end up in court simply because the person felt she couldn’t get the appropriate attention any other way.
Find out what she’s done for the problem, and what she wants from you. If she hasn’t visited a doctor yet, offer to call her doctor and schedule an appointment. Let her know that if it’s related to the service, you will pay for the doctor’s visit if it’s not covered by her insurance. Name a time in the near future that you will call and check back on her.
Your next move should be to alertyour liability insurance carrier to the potential claim and to get instructions on what you and the client should do next. Note in the client’s record the date and time she informed you of the problem, details of her complaint, and what you instructed her to do. Your next steps should be guided by your insurer. For example, they may direct all future communications regarding the incident pass through them. (Although you should follow-up with the client regardless to make sure she saw a physician and to reassure her of your concern.)
If you find yourself asking, “Insurance? What insurance?”, run — don’t walk — to the closest phone and call one of the numerous companies that specialize in liability insurance for salon professionals. According to Mary Lynne Blaesser, a certified insurance counselor and agent with the Marine Agency in Maplewood, N.J., the number of lawsuits against salon professionals has risen dramatically in recent years.
“We used to have a loss ratio of 20% on professional liability, and it’s increased to 70% because the losses have gone up,” Blaesser says.
Nor should you fool yourself into thinking you’re too careful to need it. “We’re a litigious society,” Blaesser says, adding that even if the lawsuit gets dismissed or you win, you’ll still incur legal fees. “We’ve had settlements of $4,000 with accompanying attorney fees of $30,000,” she says.
When shopping for liability insurance, compare apples to apples, because not all policies provide the same coverage. Some policies include legal fees in the face value of the policy, while others have “defense in addition to liability” limits, which means that even if someone wins a claim for the full face value of your insurance, the insurer will pay legal fees in addition to the settlement amount.
You’ll also want to find out if the policy is on an “occurrence” or “claims made” basis. With the latter, a claim made after the coverage ends won’t be covered, even if the incident occurred while the policy was in coverage. An “occurrence” policy, on the other hand, provides coverage as long as the policy was in effect, regardless of when the claim is made.
Medical expenses are another desirable option. “The purposes of medical expenses is to provide relief from small claims where the person really just wants reimbursement for medical expenses and lost pay,” Blaesser says.
As mind-numbing as it may be, read all the fine print before signing a policy and paying premiums. And if you sell private label or repackage any products, know that you’ll need product liability insurance as well.
Seek out an agent who understands the industry. If you call the same agent who handles your car insurance, odds are you’ll pay more (because they’ll repurchase it from another agent), and it may not even afford the proper protection. “A professional liability policy for a beauty shop may not cover an esthetician or even certain pedicures,” Blaesser explains.
In most cases, the salon owner can provide a blanket professional liability policy that covers the salon and everyone who works in it. If the nail tech provides her own liability insurance, specify that the salon owner is named as an additional insured. Even if the nail tech is an independent contractor, a salon owner can (and will, says Blaesser) be named in a lawsuit, and she’ll have to pay her legal fees as well as any judgment out of her own pocket.
Liability insurance provides protection against your mistakes, but it’s not a shield from irresponsibility or intentional acts. If your state board prohibits the use of MMA or Credo blades, for example, and a client claims injury from your use of either, you will not be covered unless you can demonstrate you did not use the items in question.