Money Matters

How Not to Get Sued

The best time to protect your business from a lawsuit by an angry client — or employee — is before anything is ever filed in court. Expert witnesses and liability insurance experts explain how. 

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Even the best of intentions can land a nail tech in legal hot water. Let’s say a client arrives with a cracked natural nail under which her nail bed is exposed. She has a job interview the next day and begs you to cover the split. You know a nail tech is only licensed to work on healthy nails, but you take pity on her and apply an overlay. A week later, the client calls to say that not only was she not hired, but her finger really hurts. You panic and tell her it’s not your fault as she’s the one who requested the nail enhancement. Weeks pass uneventfully, but then you’re notified of the unthinkable: the client’s fingertip has been amputated and a lawsuit has been filed against your nail business.

Like many nail salon lawsuits, this scenario was caused by the tech working outside the scope of her licensure (working on an unhealthy nail), attempting a medical procedure (a prosthetic for an exposed nail bed), and not addressing the client’s concern effectively before the situation escalated (not offering any empathy or assistance when she called).

The latter illustrates a common theme in nail salon suits — a client becomes angry after the nail tech and/or salon owner do not take her complaint seriously or blame her for the injury. Kathy Lopez, account manager for salon and spa specialty insurance agency SASSI, says, “Many negative situations can be avoided or helped by simply and promptly addressing the concerns and complaints of the customer. Claims have resulted when the nail tech underestimates the seriousness of a complaint and brushes it off. This only enrages the customer, causing her to seek representation.”

Also, due to the time and effort (and, typically, money) that civil lawsuits cost, lawsuits are generally filed only when significant injury occurs. “It’s usually something catastrophic that prompts a suit, not a small cut or coloring hair the wrong color,” says Doug Schoon, president of Schoon Scientific, who works as an expert witness in nail, skin, and hair-related court cases. In nail services, this frequently means a life- or limb-threatening infection. In skin, it may mean a burn (including chemical burns) or a severe allergic reaction. In hair, it’s usually burns or loss of hair.

Scared yet? Don’t be. There are steps you can take now to prevent becoming the defendant in a nail lawsuit.

Get Guidance From Your Insurer

The first step is to have liability insurance that covers all your salon services. It’s best to procure it through a firm that specializes in salons [go to www.nailsmag.com/insurance for more information]. Then, if a client is injured or threatens to sue, immediately tell your insurance company. “The claim should be reported as soon as possible to allow the insurance company as much time and information as possible to (hopefully) negate a lawsuit,” Lopez says. Also, if a client asks for your insurance company information, give it to them, even if you know the injury wasn’t your fault. “Beyond the nail tech’s control, the acrylic nail can separate from the nail bed between fills and an infection can be caused by moisture from something as simple as hands being washed and not properly dried,” Lopez says. Having your insurance company pay out a small claim is generally preferable to the client taking you to court.

In the moment, respond to client injuries in a serious, empathetic manner. Schoon shares an example of such dialogue: “I cut you. I want you to watch that carefully. If it turns red or swells, I want you to go to a doctor.” Similarly, if the client calls you later and asks what to do, tell her to seek medical attention.

Most experts we spoke to add that the client should not be charged for the nail service. (Lopez says it’s up to the salon owner’s discretion whether to comp the service.) Whether to offer to pay for medical expenses is trickier. For some clients, this is best way to calm them down and avoid any negative action being taken against the salon. For others, such as those with serious injuries or who are not easily appeased, paying for a doctor visit may later be construed as guilt. Lopez says, “Keep in mind that any medical reimbursement can be misconstrued as an admission of guilt. If a customer is unhappy with a service, an apology is acceptable, provided the salon owner doesn’t claim responsibility for any wrongdoing without consulting her insurance broker. The best advice is to listen, take down the information, and report the matter.”

 

Document It  

Recording information, even for healthy uninjured clients, is also an important preventative measure. “Keep client history cards that show when each visit occurred, what services were performed, and any kind of medical concerns that the client may have,” Schoon says. “Write down any preexisting conditions the client tells you about; the classic one is diabetes. For diabetic clients, nail techs have to be especially careful not to cut or abrade their feet.” Accidents should be reported on a form provided by your insurance broker. Lopez says, “If a client slips and falls, the incident should be reported to the salon owner/manager who should examine the area and get a statement as to what occurred, noting the conditions surrounding the incident that could have been a contributor. If a witness is available, a statement should be obtained. Take photographs and report the matter immediately to your broker. If a client is claiming an injury to her nails or skin, the salon owner/manager should obtain all information (including the identity of the tech) and submit the incident report to her broker.”

Another precaution is keep your license and salon up to current state board standards. “Take state board inspections very seriously,” Schoon says. “If the state board has twice come in and found dirty implements and later a client gets an infection, that state board report will be devastating to your case.” In addition to obtaining copies of your prior state board reports and license history, some plaintiff’s lawyers will even send investigators to your salon to take surreptitious photos and videos.

If you do find yourself the defendant in a lawsuit, you can bet the lawyers will ask step-by-step what you did and why. “You better have good reasons why you did certain things. If you told your client to dip her ‘nail fungus’ in vinegar, that will be a hard row to hoe. If you can’t show how that procedure was within the scope of your licensure, you have a problem,” Schoon says.

The court will likely try to ascertain whether your actions were within the “standard of care” when determining whether you are at fault; that standard refers to what a “reasonable” nail tech would have done. Though standard of care is ultimately determined by the court, there are guidelines you can use to get a general idea of whether your actions would be seen as reasonable. Schoon says, “Look at the state board regulations. Look at OSHA regulations. Determine whether it’s a medical procedure, which you legally cannot do, or a cosmetic procedure. If you’re working outside the scope of these areas, then you’re not doing something that’s the ‘standard of care.’”

Continuing education, even if you are in a state that doesn’t require it for license renewal, will also help with your defense. Update your resume yearly with the classes you take and the certifications you earn. “Show you are being responsible,” Schoon says. “You want to establish that you didn’t just graduate and get a license. You are a trained professional.”

 

Five Common Causes of Nail Client Lawsuits

1. Working Outside the Scope of Your License. Your license allows you to do cosmetic, not medical, procedures. Don’t ever tell a client what a discoloration on her nail signifies or recommend treatments for potential medical conditions. That means telling a client to “soak the nail in white vinegar” or any other nail fungus home remedy is a big no-no! The correct response if a client asks you the cause of an abnormality is to say, “I think you should see a doctor.” Also, don’t ever discourage her from seeing a physician because if you “prevented” your client from doing so, that will be your undoing in court, Schoon says.

Think Twice: “A lot of nail techs flaunt that they diagnose their clients; they go ‘above and beyond.’ But it’s not their right to do this,” Schoon says. Also, don’t be afraid to tell a potential client who appears to have a medical condition that contraindicates nail care that you will not do her nails without a doctor’s note.

2. Product Misuse. When a product causes an injury, the savvy plaintiff will go after the nail product manufacturer because the manufacturer typically has more money than any nail salon or individual nail tech. But that means if you used the product in a way that’s not specified in the manufacturer’s directions, then two parties will point the finger at you: the client/plaintiff and the product manufacturer. “I’ve seen that happen twice,” Schoon says.

Think Twice: Don’t make up your own procedures. A related note: No matter how good your relationship with the manufacturer’s founders/owners/salespeople, it won’t help because you’ll be pitted against the manufacturer’s third-party insurance company.

3. Implement Misuse. Only use implements for the manufacturers’ intended use and within the scope of your state’s rules and regulations. Do not use implements on body parts that are not within the scope of a nail tech license in your state.

Think Twice: Some states prohibit using electric files to clean skin around the nail plate, with the reasoning that the e-file is only for nails, not skin. These states consider e-file use on skin to be “microdermabrasion,” which is not within the scope of a nail tech license.

4. Illegal Implements. If you use an implement that is outlawed in your state, then your problems are compounded. Indeed, your salon liability insurance may not even cover injuries that arise from using illegal implements.

Think Twice: Are credo blades or pumice stones illegal for nail salon use in your state? Then never, ever use them on clients, even upon request.

5. Inadequate Disinfection. Infections are often the result of inadequate disinfection. Many states also require recording your disinfection routine, such as keeping pedicure equipment cleaning logs. Also, keep receipts from all the disinfectants you purchase so, if questioned, you have evidence that you followed proper cleaning procedures.

Think Twice: Even if you have been cleaning pedicure tubs for 30 years, you still need to measure the disinfectant exactly to the manufacturer’s standards. If there is a complaint, you can bet someone will be in your salon asking to see the measuring cup you use.

 

Preventing Worker Lawsuits

If you are a salon owner, then you are also vulnerable to worker lawsuits. Here are some ways to prevent nail techs from taking the salon to court.

1. Classify workers correctly. There are advantages and disadvantages to both employee and independent contractor classifications, but the bottom line is you must pick the accurate classification based on IRS rules [learn more at www.nailsmag.com/irsclassifications]. In addition, you should be able to prove it’s correct.

2. Follow your state’s laws on minimum wage, overtime pay, and breaks. On January 2, 2017, the Los Angeles Times reported on four nail techs who “were deprived of minimum wages and overtime pay despite their labor” and are now suing an Orange County nail salon, which they also allege made deductions from their paychecks for the use of spa chairs. If a worker brings to your attention a concern about her salary or commission structure, working hours, or allowable breaks, take her concerns seriously and consult with an expert (such as a labor lawyer) if you are unclear on the law.

3. Provide a safe working environment. OSHA requires that salon owners/managers provide a safe salon for workers (that goes for employees and independent contractors). Familiarize yourself with OSHA’s Right-to-Understand, which refers to workers’ rights to know about and understand workplace chemicals, and requires the salon to keep Safety Data Sheets on site. “If a worker is injured due to lack of knowledge, then the salon owner is likely to be responsible,” Schoon says, adding that OSHA requires that training be done in the worker’s language.
 

Avoiding Simultaneous State Board Actions

In addition to filing a civil lawsuit, an injured client can report you to your state board. In California, the Board of Barbering and Cosmetology (BBC) can impose administrative fines, suspension, probation, and/or revocation of your nail license, according to Carrie Harris, enforcement manager of the California BBC.

“BBC receives complaints every day regarding infections as the result of pedicure services,” Harris says. “Most often the skin on the client’s feet or toes was broken during the service. All licensees should use care when using sharp or abrasive tools and never cut ingrown toenails or ‘dig’ on the side of a client’s toenail. Licensees are in violation of CCR 991-Invasive Procedures any time the skin has been cut or abraded.”

Jaime Schrabeck, Ph.D., has nearly 10 years of experience as an expert witness for California’s BBC and has reviewed more than 20 cases involving consumer harm during nail services. “Most cases focus on pedicures that have resulted in serious medical conditions ranging from infection to amputation,” says Schrabeck, who is also owner of Precision Nails in Carmel, Calif. “It’s my responsibility to evaluate the evidence provided and determine whether the licensee/service provider was negligent and/or incompetent in performing the service in question. Furthermore, I determine whether other violations of regulations took place.”

Here are Schrabeck’s top five recommendations for salon owners and service providers:

1. Know your state board regulations, particularly those pertaining to health and safety, and follow them.

2. Work within your scope of practice, no matter what the client requests. If you have concerns about the safety of a procedure, refuse to perform the service.

3. Invest in liability insurance to protect your business and personal assets.

4. Document every appointment by recording the client’s name, contact info, and service performed. 

5. When you injure a client, accept responsibility for your actions. Provide your insurance information readily and make your best effort to mitigate any negative consequences.

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