Business Management

The Best Defense Against a Lawsuit Is a Good Offense

What are the odds of a nail technician being sued? While statistics aren’t available, in today’s sue-happy society, suffice to say you should certainly be prepared to defend yourself.

The average physician can expect to be sued at least once during his career. If that physician is a surgeon, his expectations of a suit are significantly higher. What are the odds of a nail technician being sued? While statistics aren’t available, in today’s sue-happy society, suffice to say you should certainly be prepared to defend yourself.

Whether it’s a doctor or nail technician being sued, the basic legal principles that determine whether a claim has merit are the same: (1) Anyone who undertakes to provide a service owes a duty of exercising reasonable care. (2) If a professional departs from the level of care and skill that is deemed reasonable in the community, then any harm that is caused, in whole or in part, by the departure from reasonable care is the responsibility of the professional. (3) When that occurs, the professional is legally accountable to the client for the cost of treatment of the resulting injury or harm, for any lost wages or out-of-pocket expenses directly caused by the event, and for any pain and suffering, including the traumatic effects of any disfigurement.

Don’t Leave Clients Out in the Cold

There are lessons to be learned from the medical community on how to lower your odds of being sued. Prominent medical literature advises that if there is a single most important factor in preventing a lawsuit when there has been a mishap, it is a good bedside manner. The biggest mistake that any professional can make when a client has been hurt, whether through the professional’s fault or not, is to refuse to answer the client’s questions or address her concerns. Failing to help this person might just push her into seeking legal help. On the other hand, treating the problem as a project that you are willing to face with the client makes you an ally, and people who are in crisis tend to hold onto their allies, not sue them.

Of course, always remain aware of your legal position. If you have liability insurance, report the event to your insurer as soon as you become aware that an accident has occurred. Failure to notify your insurance carrier of a potential calm can result in the carrier later refusing to defend you. You should also ask your carrier for permission to continue working with the client (if you intend to do so), and you should document the conversation by sending a confirmatory note to the carrier.

While you want to remain the client’s ally and continue working with her if possible, don’t directly admit fault. Your insurance policy probably contains a provision that bars you from admitting responsibility to the client.

Given these ground rules, there is believe it or not, room to maneuver. If, for example, the client appears to need medical care, you may ask the carrier to offer to pay the medical bills in the hope that a relatively small sum of money for treatment may be accepted in lieu of a full-blown lawsuit settlement, which is more expensive for the carrier even if you ultimately win the case.


Always Have It in Writing

In the event you are sued, you will find that your client records are admissible as evidence of what did and did not happen during a client’s visit. Although record-keeping is tedious, standardized, reliable records serve an important legal purpose in the event of a mishap. First, if the client knows that you record all complaints (especially if you ask her to initial them on your records), she may be deterred from suing in the first place. Second, if the case goes to trial, you will benefit from the fact that jurors have a tendency to prefer written evidence to oral testimony that contradicts written evidence.

You should use a client card for each client, starting with the first visit. The form should include, at minimum:

  • (1) A detailed description of the condition of the client’s nails at that time. A color photograph also would be terrific.
  • (2) A list of any relevant allergies or previous reactions to products used in the salon.
  • (3) The client’s current goals; that is, whether she wishes to continue doing what she has done in the past or whether she expects some difference in appearance, durability, etc.
  • (4) The reason the client has selected your salon. If the client was referred by another client, the new client will probably not be able to claim later that she relied on your advertising. The client should sign at the bottom of the card after you fill it out.

All subsequent visits should be logged on the client card. I recommend you at least show the service provided and the materials used. Your client card should contain “observations” and “complaints” headings, and your staff should be instructed to make a note under each, even if they merely write “no change” under observations, or “none” under complaints. Note when you expect the client to return for her next visit, assuming that there are no complications. The client should be asked to initial your notes.

Waiver of the Right to Sue

An agreement in which a client agrees to assume the risk of injury and damage and agrees in advance not to sue is called an exculpatory agreement; that is, it clears you of liability for damage, even though you may have been negligent.

Before you decide whether to use an exculpatory agreement, you should consult an attorney to determine whether such an agreement is allowed in your state, and so she can draft or review the agreement you intend to use. If such agreements are not binding in your state, some attorneys still recommend using them because they may dissuade the client from pursuing legal action. However, instead of scaring clients away by asking them to sign an agreement that is not even enforceable, you may wish instead to opt for a disclosure type of statement. Doctors call this an “informed consent” acknowledgement, which the client acknowledges that she has been informed of the risks of the procedure (which should be clearly explained in writing), and has decided to accept the risk. In some states, the client’s voluntary decision to assume a known risk may provide at least a partial defense, which can reduce the amount of damages to be awarded. I strongly recommend against making any decision on these questions without consulting an attorney.

Don’t Worry, Be Covered

In my discussion I’ve assumed your salon has liability insurance. That’s because liability insurance is an absolute must in just about any business these days, and you shouldn’t be caught without it. Unfortunately, insurance policies are hard to read; this is another area in which I advise you to get help from a lawyer. Consulting a lawyer will not only help you find the policy that best suits your salon, but it will also let you know what is and is not covered so that you don’t do anything to jeopardize your coverage in the event of an incident in your salon.

By David M. Schuller, attorney at law, is a past director of the New York State Trial Lawyers Association and a member of the faculty of the NYS Trial Lawyers Institute. He has taught at Brooklyn Law School and has been a guest lecturer at various bar association continuing legal education programs. His firm, Schuller and Everett, P.C., practices exclusively in personal injury and insurance litigation.

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