Protect yourself against a malpractice lawsuit by educating your clients about the risks, keeping accurate records, and using signed disclaimers.
It was something out of a nightmare, says Linda Hoover, co-owner of The Nail Spa in Saline, Mich. Within months of opening The Nail Spa, Hoover and her partner, Janice Cory-Bies, were sued twice.
The first time, relates Hoover, a new client had a full set of nails applied and made an appointment to return for a fill 10 days later, but she didn’t show up for three weeks. “The nails had come off and she had glued them back on. There was black dirt between the tip and her own nail. She asked me. ‘What do you think I should do about this?’”
Hoover told the client that she didn’t seem suited to wearing artificial nails and offered to soak off the extensions and give her a natural manicure. An hour after the client left, her husband called.
“He wanted his money back and money for the time his wife had missed from work having the nails applied or he said we would have a business left,” says Hoover. “We hung up.”
The client ultimately sued The Nail Spa in small claims court. “We told our side, she told her side. The judge didn’t even know what getting a set of nails meant. He split the judgment and we had to pay half.” Although the judgment and court costs were minimal, Hoover says the emotional cost was high.
Incredibly, less than two months later it happened again. “The second time we received a letter from an attorney who was suing us for an unnamed amount. His client came in and got a set of nails and we didn’t hear from her for seven and a half weeks. She didn’t come back for maintenance.
“Her attorney wanted to talk, wanted to deal. We were angry and said we weren’t going to pay. We hired an attorney and he wrote them a letter.” Hoover says the case eventually was dropped.
There’s no national index of court cases, and many salons settle through their insurance company or by paying a small claim out of their own pocket. But clients will, and do, go after their nail technicians and the salons they work in when their nails are injured. No matter whose fault it is, nail technicians could lose their life savings and salons could be driven out of business if they can’t prove they were not negligent.
With the rash of negative coverage on nail salons in the press, clients are scrutinizing nail salons more closely than even. “People are going to get ideas and clients will realize that incidents [of infections or damage to the nails] are related to the service itself,” says Doug Schoon, owner of Chemical Awareness Training Center in Newport Beach, Calif. Hoover and Cory-Bies say that in both incidents the suing clients mentioned the negative segment on nail salons that appeared on “The West,” a news show that aired just before the salon started having problems.
It Can Happen To You
Anyone can file a lawsuit against another person. You can be sued if you rear-end someone’s car, if your dog bites your neighbor, or if your client has an allergic reaction to the artificial nails you apply. All of these examples are liability causes, where one person’s actions directly or indirectly injure another person. The injured person can file a lawsuit to collect damages, but she must prove that the person she is suing is at fault. For example, a client suing a nail technician must prove that the nail technician’s actions were negligent.
“Negligence is determined by a standard of care. In any negligence action, there are certain elements: duty breach, and causation,” says Chritine Carlino, a lawyer at Johnson, O’Connell, & McCarthy in San Diego, Calif. For example, a nail technician has the duty of properly applying artificial nails without damaging the client’s own nails. If the natural nails are damaged, the technician has breached (or failed) her duty. If a jury decides that something the technician did – whether deliberate or not – caused the nails to be damaged, the jury can declare her actions negligent and award the client a settlement.
Acting negligent encompasses more than applying product sloppily or blatantly ignoring sanitation requirements. If a client has an allergic reaction to product or a piece of acrylic flies into a client’s eye, a technician can be sued. A “negligent” act is simply the result of something you do or fail to do not necessarily on purpose, that has a negative effect.
When a case goes to court, the client has to prove you were negligent. “What’s negligent and what isn’t is up to the jury. If the technician can establish that she did everything in the customary way and up to the standard of service, she can be found not negligent. She’s not negligent merely because someone got a bad result,” says Barry Sigman, the attorney who represented The Nail Spa.
“Standard of service” is what the community standard would be for that conduct or situation. You’re not compared to the perfect nail technician model; instead you have to meet the expected level of service for the average nail technician. Your testimony, the testimony of respected industry peers, and your state board regulations may help establish the standard.
According to Greg Boldue of Hinshaw and Culbertson, a law firm in Chicago that specializes in insurance defense and product liability cases, the deciding factor in a negligence case in whether a reasonable person would have done what you did. If you are found negligent, you have to pay a nail client’s medical bills to repair her nails. If the damage is permanent she may be awarded extra money by the jury.
To protect yourself, it’s important to keep up with current health and safety precautions as well as seek up-to-date product education. If you were licensed 10 years ago and haven’t had any continuing education classes since, it could hurt your credibility in court.
“One way or another, the technician’s professionalism finds its way in. The more you know, the more likely you’ll be able to convince them that your service was high quality and unlikely to have caused the problem. If there are new products and new techniques, the technician should stay current,” says Sigman.
“Nobody told me”
Communication with your clients is your best protection against a lawsuit. What your client doesn’t know can hurt you both. Your responsibility as a professional nail technician is to tell new clients about the service they are paying for the products you used, and any potential risks or reactions she could experience as a result of the service.
“If you know about problems the product can create, you may have a duty to warn clients,” says Boldue. Since it is known that some people will be allergic to acrylic nails, for example, you have to tell clients this.
You must also tell clients about the possibility of lifting, chemical irritation to the skin and nail bed, yeast infections under the posterior nail fold, pseudomonas bacteria or “green nail” caused by water getting under artificial nails, and any other conditions you know of that are associated with artificial nails. Inform her that most complications can be prevented with regular maintenance and make sure she understands her obligation to return to the salon regularly for fills. She also should be advised to return to the salon between visits if any nails break or lift.
Linda Hamilton, director of nail technician education at Gene Juarez Salons in Seattle, Wash., says, “Technicians are taught to educate clients from the get-go about the service – the time and money involved and what clients are financially responsible for and what we are responsible for.
“We guarantee the nails for two weeks, so clients have to come back within 10 to 14 days. They pay for the fill but all repairs are free. If they come in before 10 days, all repairs are free. After two weeks, they’re on their own,” she says.
You can incorporate a “disclosure statement” into the initial client consultation. The lawyers NAILS spoke to recommend using a written disclaimer for added protection. A disclaimer should contain notification of known possible risks and reactions to the service and products, a paragraph that says the client has read and understood the potential hazards and will not hold the technician liable for negative results, and a place for the client’s signature and the date.
Boldue emphasizes that information about potential risks and reactions in disclaimers must be very specific. “For example, a disclaimer should say, I understand that in 5% of clients there are certain reactions, and then list those reactions. The broader the disclaimer, the less protection it offers the salon.”
Sigman say disclaimers are a good business practice for salons. Both he and Boldue recognize, however, that disclaimers can also scare clients away. That’s why Sigman recommends creating an informational handout that incorporates the notice of potential complications with education about the service and products used, when and why maintenance is required, and cautions for home maintenance. Have the client sign the disclaimer, says Sigman, to acknowledge receipt of the information and simultaneously release the technician from liability.
After their last experience, Hoover and cory-Bies wrote “Helpful Hints,” which describes how to avoid damaging artificial nails and explains that maintenance is required every 10 days for the average person. Clients sign and date the letter and it is kept in The Nail Spa’s files.
Clarles Penzone, owner of The Grand Salon in Dublin, Ohio, has two informational brochures – one for nail services and one for pedicures. Each describes the basic services, salon maintenance programs and home maintenance routines. The salon’s sanitation measures also are detailed in each brochure, emphasizing the care that technicians take to protect clients from disease transmission. After reading both brochures, clients fill out the history portion of the client information card and sign, acknowledging receipt of the brochures and releasing the salon from liability “should any adverse physical reaction or condition develop and a result of my wearing these artificial fingernails.”
While a signed disclaimer will not release you from liability in many states, it can be used to show that the client understood the potential for problems. This is why specific disclaimers are so important. If the disclaimer just says that adverse reactions can result, the client can say that she never dreamed that her nails would separate from the nail bed, fall off, or turn green – or whatever it is that actually happened.
“She Did This To Me!”
Accurate and detailed client records should tell you what condition the client’s nails were in when she first came to you, her occupation and hobbies, her nail care history, and what services you did on specific dates.
“It’s always worthwhile to record what was done on what date. Whereas the claimant might rely on her memory, which can be exaggerated or wrong, the practitioner can use records to prove what she did and did not do on a certain date,” says Sigman.
Technician records can be used to show that a service was done months before an alleged injury surfaced. They also can show that the client missed several appointments but returned with maintained acrylics, demonstrating that she or someone else worked on them. Whatever the claim, your records are your primary defense.
“In fact, in the case that I handled, one of the things that caused me to conclude the salon wasn’t liable was how long after the nail treatment it was that the customer contended she was having a problem. After such a long time, it wasn’t the service,” says Sigman.
According to Sigman, this is an example of “comparative negligence.” If the client was aware of the required maintenance and neglected her responsibility to either maintain her artificial nails or remove them, a court might conclude that the customer’s complications arose from her own negligence, not the operator’s.
“It goes back to how good record-keeping and informing the customer of recommended maintenance can help vindicate the operator,” he concludes.
Be sure your client records are accurate and up to date as well. A spokesperson for a large West Coast salon (who requested anonymity) says that several years ago a client lost all 10 of her natural nails as a result of wearing artificial nails. Though it appeared the client went a long time between visits, the salon’s record was not clear. “She could have gone some where else and had her nails done between appointments at our salon but we don’t know,” says the spokesperson. The client eventually collected more than 85,000, which was covered by the salon’s professional liability insurance.
Now the salon keeps detailed client records. When problems arise with a particular service, the technician and manager sit down together right after an incident and write down everything that happened and what was said. The spokesperson says the salon has improved its client education and keeps more detailed records.
“Just Do It Anyway”
How many nail technicians have had clients beg to keep their nails, even when a problem was apparent? It happens all too often, and a client’s pleas are hard to resit when the person is not only a paying client, but often a friend.
Sigman recommends exercising your judgment on whether to do a service but at the very least, he says notify the client of the problem, make a note of it, and have the client sign next to your notation so there’s no misunderstanding later. However, he warns that the only sure protection is refusing to service the client until the condition clears or she obtains a doctor’s approval.
Hamilton says technicians at Gene Juarez Salons have to make a judgment call when the client insists on continuing the service against the technician’s recommendation. “If it might jeopardize the nail – if there’s an infection, for example – and we don’t feel comfortable putting the nail on we just don’t do it.
“If there’s a nail that’s questionable and we recommend against the service but the client insists. We’ll have her sign a waiver that states the client is assuming responsibility for the service,” says Hamilton.
“You’d better be insured!”
While it’s not protection against being sued, professional liability insurance is a safety net that no technician or salon should be without. Professional liability insurance is similar to medical malpractice insurance carried by doctors. If a client gets an infection, her nails fall off, or she is otherwise injured by your service, your insurance carrier will handle the claim. If the claim is denied by the insurance company or a settlement agreement cannot be reached between the claimant and the carrier the carrier pays all legal costs to settle the case.
Sally Williams of Sally’s Nails in Westmont III., learned just how valuable her professional liability insurance was three years ago when nipping loose acrylic from a client’s nails. “The acrylic popped up hit my light and bounced into her eye,” says Williams.
At first it appeared the acrylic hit the client right outside the eye, and she went home saying she was okay. The next day she called Williams from a hospital emergency room. The client was a friend, so Williams picked her up and took her to her regular doctor, who found a particle of acrylic scratching the eye. The client missed a week of work because of the injury.
“She called my insurance company and they paid all her medical bills and her salary for her time off work,” says Williams. After the insurance company checked the client’s story with Williams, they processed the claim and Williams didn’t have to do anything further.
“It would have been very difficult on me and very expensive without the insurance. I’m a single parent and couldn’t have afforded all the bills,” she continues.
Salon owners can buy professional liability insurance to cover all salon workers or individual nail technicians can buy their own coverage. Mark Sherry of Sherry & Sons an insurance brokerage in Fort Lee, N. J. which insures beauty industry manufacturers, distributors and salons says standard professional liability policies for salon operators have limits ranging from $300,000 to $1 million.
Annual premiums vary depending on the insurer. Brad Wilson of Wilson and Cox Agency in Chula Vista. Calif., says a full-time nail technician can purchase a $1 million professional liability policy for $48 per year if the liability insurance is added on to another policy. A stand-atone policy, meaning it’s not attached to a fire and general liability policy, can cost much more. One insurance company quoted $200 as the minimum annual premium for a stand alone professional liability policy.
Besides the difference in premiums. Wilson recommends combining your professional and general liability coverage in one policy so that you don’t get caught in the middle when you go to make a claim. Basically, professional liability covers a person’s negligent acts and general liability covers the salon when someone in injured on the premises. Though the differences are a little more complex, its easy to see how, in some cases, two insurance companies could argue over who is responsible for paying a claim.
Mind Your P’s And Q’s
If a client is unhappy, whether or not she threatens to sue, you should prepare for the eventuality. You want to do everything reasonable to avoid litigation because of the cost and time involved, but you don’t want to do anything that might make your case worse.
If a client has a problem that can be remedied with a complimentary treatment or product. Boldue recommends trying it. “You certainly don’t want to admit fault, but you also don’t want to slam the door in the client’s face, because even a frivolous lawsuit is going to cost you somehow, in lawyers free or higher insurance premiums,” he says.
If a lawyer contacts you or you are notified to appear in small claims court, contact your insurance company or a lawyer if you don’t have insurance. Don’t talk to anyone asking for information except your lawyer or your insurance company,” emphasizes Boldne. Anything you say can be used against you later.
If the client’s injury is severe and she sues for a large amount, you can expect that other defendants will be named – usually the manufacturer of the product you used and even the salon owner. But don’t take comfort in thinking that at least you’re not alone Everyone will try to defend themselves by placing the blame on someone else, and that will often be you.
If the product manufacturer is named, the company may defend itself by trying to show that you used the product improperly. This is why it’s important to follow manufacturers’ instructions and to attend manufacturer sponsored classes on the product system you use.
Any product liability suit hinges on whether the product was used in its intended manner. “If you hit someone over the head with a hammer, that doesn’t make the hammer defective. The fact that it can hurt someone is not relevant if you use it in a manner not intended,” says Sigman. This is one reason why you should use all the products from one system instead of missing and matching one manufacturer’s primer with another’s liquid and yet another’s powder.
The Jury Is In
Communication with clients warning of potential risks, keeping detailed and accurate records and carrying the right insurance are all integral elements of running a professional nail business. Setting a standard of care that is a model for your community may not prevent the occasional unhappy client, but it’s your best defense and the best business practice you can implement to protect yourself. In a word professionalism is your best bet to preventing a lawsuit.