Her home care compliance had increased; she was routinely wearing her sunscreen, and except for an occasional tan, she was doing wellNow, you are all experiencing the following thoughts:
- “I would NEVER work on someone with a tan.”
- “I would NOT work on someone with a suspicious lesion.”
- “I would have known this was a problem.”
- “I would NEVER have touched this woman.”
Rest assured, with many more years of experience, Madge too would handle this situation differently. It did turn out to be a basal cell carcinoma. Luckily for both of them, it was caught early (as basal cell carcinomas are typically slow-growing), and the client had minimal tissue removed. Now there is no sign of the aforementioned lesion, and Madge continues to treat this client today.
Risk Management Defined
This scenario however, had the potential of being a nightmarish event in today’s litigious milieu. The risk to Madge and her business could have been significantly minimized by applying a few risk management techniques.
Accepted convention views Risk Management in four basic categories: Avoidance, meaning to eliminate all potential risks; Reduction, means to reduce risks by employing measures that minimize potential risks; Retention, means to totally accept risks; and Transfer, means to shift the risks to another body such as in purchasing insurance, and/or making contractual agreements, which ultimately makes other parties share in the risk.
Risk Managementis defined on entrepreneuer.com as, “Decisions to accept exposure or reduce vulnerabilities by either mitigating the risks or applying cost effective controls.” Today, as a risk management measure, my colleague has purchased professional and general liability insurance, in addition to reworking her Informed Consent document, which now includes a sentence that absolves her of liability should she be confronted with a similar circumstance in the future.But, just for the experience of this exercise, let’s “flesh-out” some risk management ideas from different vantage points for the rest of us “Madge’s” perhaps unknowingly,in jeopardy to litigation.
Minimize Risks as a Skin Care Professional
Skin care specialists are truly remarkable individuals. We are intrinsically motivated to help people. We are often visually-oriented… tactile (we touch people…), sensitive, and we generally care about the health and well-being of others. As another broad generalization, we are still learning about the care and protection of ourselves – namely our exposure risks.
Back in the day, when just a few of us were practicing, the rules were clear. You were trained, you got a job, and your employer took care of the business details, including insurance. As one grew and developed, some of us became business owners, which involved purchasing equipment and products, and maybe we employed one or two people. As part of the package, the bank, or our insurance salesperson recommended purchasing general liability insurance. As a general practice, we diligently complied not really knowing all of the ramifications of being underinsured, and over-exposed to unknown risks. The term risk management was not on the radar, except for weird Uncle Harry who sold insurance.
Today a myriad of issues have changed and morphed our environment as skin care specialists. With the globalization in trade of goods and services, we are now all business people. Like it or not, we are in charge of our work-lifestyle pursuits and for managing our risks to peril. Here are a few recommendations made by various risk management professionals.
If you are working as an independent contractor, obtain professional and general liability insurance. Insurance professionals say that it may not be enough to have professional liability insurance if we work as an independent contractor, in the event that one is named individually in a claim. Case in point, according to Samantha Strickler, of Strickler Insurance, in Encino, Calif. “…if you are working for a salon as an independent contractor and you leave the wax machine on, and a fire ensues, the salon owner’s general liability insurance will cover their recovery expenses; however the owner could ask you for expenses which would be out of pocket if you do not have appropriate coverage.” Strickler also says, “The take home here, is in addition to having professional liability insurance as an independent contractor, it is wise to have general liability insurance as well.”
Use appropriate documentation and conventional charting methods. It’s important to document any deviations from the normal protocol of a treatment or service. Moreover, the term Papering Your File, with as much documentation as possible is another recommendation that Strickler requires of her skin therapist clients, as she further states, “If a claim does occur against you, you can paint a picture for your defense with your documentation. Without it, you may be proven negligent.”
Take a good look at your employer’s insurance policy, with you in mind. Katie Armitage, President of Associated Skin Care Professionals, in Evergreen, Colo., states, “Many skin care professionals who work in spas, salons, and doctor’s offices mistakenly believe that their employer’s coverage protects them. If a claim is made, the employer’s policy may not cover you if you are named in the claim. It is unlikely to cover your court costs, legal expenses, and settlement fees. Review the employer’s policy carefully and read the fine print, otherwise you are at risk.” Armitage adds, “Employers often assume that their staff is protected because they don’t fully understand their own insurance policy. One of our own staff members owns a small day spa and made this mistake. When she came to work for us and learned more about insurance, she dug deeper and discovered her staff were NOT covered. An employer might also forget a payment or fail to renew their policy, leaving staff at risk. Most often an employer’s policy will not cover you if you work in locations outside the business premises or offer services out of your home. Some treatment or techniques that you provide may not be covered by the employers’ policy. If your employer’s insurance doesn’t cover you, guess who’s responsible for those costs? You are.”
Add to your Informed Consent document a client waiver statement which absolves you of any liability if the client refuses to seek medical attention as recommended. Often our clients become like family members or friends, and we tend to become laissez-faire in some of these instances. You need to reschedule the treatment until the client has been seen by a dermatologist or a qualified health care professional.
Do not publicize or discuss with a client that you have professional and/or general liability insurance. This gives unprincipled, scheming-types carte blanche to your insurance capital. Experts say it does not matter how well you may know an individual, it is best not to share your insurance coverage or any business information that may potentially be a risk management issue.
While doing business out of the U.S., make certain that you have systems in place to safeguard your products, equipment, and transactions. It is necessary to have a monitoring body, which is responsible for keeping your products and services safe, environmentally sound, reliable, efficient and cost effective.
Make certain that your equipment is in good repair. Inspect all equipment as a routine practice. If a device is not working properly, get it in for repair as soon as possible. Also, look for unexpected risk management issues or sleepers that can become a problem such as the treatment bed or chair on wheels. Make certain that these items have brake features.
Obtain and use protocol home care compliance documents. This ensures that you have done your part to make certain that your clients are using their home care products correctly. This becomes especially important if the client is preparing for a surgical procedure. Always make a signed copy and put it in the client’s chart.
Attend continuing educational events and workshops. As practitioners, it is our responsibility to make certain that we remain qualified to use the equipment, peels, and/or other devices that we apply to a client. For example, do not assume that a peel that you have used for years has not been through some changes. Ask for updates on MSDS sheets as well.
Owner Risk Management Considerations
Along with the countless details that an owner of spa, clinic, salon, or other skin care facility has to manage, it is necessary to put in place a very proactive, transparent, risk management program that may involve multiple layers. Here are a few unconventional risk management techniques for the forward-thinking entrepreneurial business owner.
Have compassion for your business by remaining detached. This sounds like something out of a new age catalogue; however, we have all made emotional decisions about our businesses because we somehow believe it is our “baby”. But sometimes a business needs to grow up! Get outside help if you find that you do not have objectivity about your business. Local small business development centers often have this support for free, and can offer business assistance that will inevitably minimize risks, on everything from financial matters, to having employees sign non-compete agreements. The more impartial we can be about our business, the more precise our decisions will be in providing for its sustenance.
When you have that negative “gut-level” feeling about a client, employee, or vendor, trust it! We often can look back at a circumstance or incident that has created a business or personnel problem, and recall something that just did not feel right. It is important to safe-guard our intuition. For many, intuition or that “sixth-sense” can offer a direct link to risk management by “staying awake,” thus diverting a mishap.
If you get into a crisis with an employee, and a resolution is not in sight, bring in a qualified mediator. Sometimes we just “hit the wall” with someone, and our plight in conflict resolution is drifting away by the seconds. Further, maybe the situation has become too hurtful or depressing to deal with effectively. These are both good reasons to hire a mediator to help resolve a dispute. Sometimes it can be a lengthy proposition, but it might be money well spent in the long run. Through the process, you may discover unhealthy patterns repeating within your operations that are crying for a “call to action.” It can be difficult to look at our own short-comings, but necessary.
Make certain that the equipment that you are using, or are going to purchase is covered by liability insurance. You may find that while your waxing services, microdermabrasion, and chemical peels are covered; permanent cosmetic applications or electrolysis may not be covered. Checking with your state laws, rules, and regulations is essential to remain compliant and official as well. Due diligence goes a long way to avoid expensive course corrections.
Risk Management for Product and Equipment Manufacturers
Charles Stevens, Program Division Manager, for Marine Agency Corporation, of Maplewood, N.J. offers some key suggestions as an overview to spa/salon product and equipment manufacturers. Many of these ideas could be carried over to anyone in business where products and equipment are being developed.
- Batch numbering – products should be numbered by production line and date. The batch numbering should also be tied to sales information in order to facilitate an expedient recall if necessary.
- Product labels and instructions for use – should be periodically reviewed by legal counsel to ensure accuracy, FDA compliance, and ease of understanding (for the consumers).
- Insurance from suppliers – obtain evidence of product liability insurance from all suppliers. David Suzuki, President of Bio-Therapeutic, Inc. states, “Evidence of product liability is standard practice for reputable manufacturers. Furthermore, you should inquire about ISO (International Organization for Standardization) and CSA (Canadian Standard Association) certifications. These prestigious certifications ensure you are dealing with a company who takes safety, consistency, and quality seriously.”
- Independent testing – quality control is a critical issue for all manufacturers and distributors. Where possible, periodic independent testing/certification is a great idea.
Purchase the following types of insurance coverage:
- General liability including product liability coverage – covers against lawsuits arising out of the operations of a business
- Property coverage for buildings (if owned) and contents including furnishings/fixtures, supplies, and inventory
- Business interruption and extra expense coverage – covers loss of income following a covered loss (like a fire)
- Workers’ compensation – covers on the job injuries and disease
Sleepers or hidden risk management issues:
- Product recalls can be very expensive and are not automatically covered under a general liability/product liability policy. Separate coverage may be available.
- Employment practice suits (sexual harassment, wrongful termination, hostile work environment, etc.) usually come without warning. Defending a single suit (even if groundless) can cost $25,000 or more in legal fees. Separate coverage called Employment Practices Liability Insurance (EPL or EPLI) is available to protect employers from employees’ claims.
- Crisis management and disaster recovery plan - should be included in overall risk management plans. Businesses should plan ahead for all possible contingencies including everything from incidents of workplace violence, product recalls, and temporary locations (and emergency supplies/inventory) following a property loss.
Risk Management for Writers…
Risk management for authors and writers begins with using accepted scholarly conventions when writing articles, books, marketing materials, and other documents. Having your work registered as copyrighted material is essential in protecting your work as an author. Legal.com defines a copyright as, “A form of protection provided by the laws of the United States to authors of original works of authorship. This includes literary, dramatic, musical, artistic, and certain other intellectual works.” This protection is available to both published and unpublished works. Washington State, contract and patent attorney, Todd Hathaway, recommends registering your writing/text, artwork, video, and photos, in addition to the copyright that it is given once it is published, as routine practice for the following three reasons:
1. Registration increases the perception that there are greater rights to the work.
2. Registering your work is a prerequisite to filing suit for copyright infringement.
3. Registering work allows statutory damages to be paid, if you can show an infringement on your work. This may not be true if the work is just copyrighted.
Conversely, if you use another person's work and do not attribute that work to the author, including copying text verbatim, paraphrasing a phrase or summarizing an idea, you are essentially committing plagiarism. Plagiarism usually occurs when a writer fails to:
- cite quotes or ideas written by another author
- enclose direct text in quotes (must be exact text while quoting)
- put summaries and/or paraphrases in his or her own words (rework idea or concept in your own language, then cite source at the end of the article or book)
To summarize, the author has a right to their intellectual property. This includes copyright, trademark, or registered names, logo, or other written materials. Plagiarism is illegal and if it can be proven, the plagiarist may have to pay the copyright owner of the plagiarized works the amount he or she actually lost because of the infringement, in addition to paying attorney's fees. This can be extremely expensive on many levels, including risk to a good reputation.
Risk Management in Marketing
Janet D'Angelo, President of J.Angel Communications, a marketing and public relations company based in Scituate, Mass., is the author of Spa Business Strategies: A Plan for Success, Milady Publishing. D’Angelo has many useful tips for new and existing businesses engaging in the practice of marketing and advertising. She states, “When it comes to marketing, creating a name and logo is the first order of business in branding a salon or spa’s identity. This is a task that most spa owners take great pride in, but it is important for small business owners to understand the legalities involved. This generally includes registering your business name at both the state and local levels. You should also check with the U.S. Patent and Trademark office to be sure you are not infringing upon the trademark rights of another business. Unwittingly copying the design or name of another business can get you into trouble even if that other business has not registered a trademark. All of this can be confusing to the new business owner, so it is always best to seek expert legal advice in these matters.”
D’Angelo has more advice for spa owners, “Spa owners should also be aware of any restrictions or requirements when it comes to advertising name brand products and patented techniques. Most manufacturers and developers are eager to showcase their products and are often happy to support you in your efforts; however, when it comes to representing their wares they may require the use of certain trademark symbols and/or language. Marketing professionals take extra care to research these facts before placing them in media outlets. If you are creating your own advertising materials or relying on media personnel to create a design, be sure to investigate these important items yourself. While media reps are often happy to assist you in creating an ad, the ultimate responsibility for content is yours.”
Seek Good Council
As skin care specialists, it is important to have a diverse and comprehensive support team composed of professional members with whom “relentless study” is a common theme. We need people around us who are current on rules and regulations, laws, procedures, education, and those with whom you may have a confidential discussion.
Some topics are better shared in the offices of paid professionals, rather than in a discussion with a friend, delivered in a panic over a martini. Make certain that you have the best resource in front of you for conversations involving a potential liability. Debbie Higdon, of Associated Skin Care Professionals, of Evergreen, Colo., serves in risk management and offers, "I'm often the first person a skin care professional talks with if a claim is made, and I can hear the anxiety in their voice, even if they don’t believe the claim has merit. Having someone to turn to is so important to them. They are always so relieved to have the matter settled."
There is nothing like having a calm, well-trained professional at the other end of the phone when you need them. Additionally, when reviewing your insurance policies, they can appear to be confusing. It's always a good idea to have a qualified insurance agent/broker or attorney assist you with the review.
Having an emotional safety net in place for support is invaluable with the busy lives that we lead today. It is imperative that we have people around us who care for and support us as individuals. If you feel at risk personally, it is vital to enlist the help of a good therapist or mental health specialist to work through difficult issues. Risk management issues can crop up around people having a loss of confidence. Perhaps a domestic issue, or another personal problem maybe affecting the way we are functioning on the job, thus lowering our ability to concentrate or perform well. Knowing yourself and when to reach for help is good business.
Every skin therapist knows the life-beat of their practice revolves around the caring of their clients. Examined closely, we develop relationships with clients and to our work, which supports us on many levels. It is rare that we incur problems; however we must anticipate unforeseen events by being stewards not only to ourselves, but to our profession. Once risk management systems are in place, and are re-evaluated on a continual basis, it becomes more an issue of practice management. That, we understand.
Armitage, Katie. (April 2008). California Stylist & Salon, “Insure Your Work, Improve Skills, Reduce Your Risk.”
Crouhy, Michel, Galai, Dan, Mark, Robert. (2006). The Essentials of Risk Management. New York, NY: McGraw Hill, NY, NY
D’Angelo, Janet, (2007). Spa Business Strategies: A Plan for Success, Clifton Park, NY: Milady Publishing
Deitz, Sallie, (2004). Milady’s The Clinical Esthetician, An Insider’s Guide to Succeeding in a Medical Office, Clifton Park, NY: Milady Publishing
Foster, Tim (2007). Business Today. Article: “Build Long term Relationships Your Employees.”
Kwon, W. J., Skipper, Harold. (2007). Risk Management and Insurance: Perspectives in a Global Economy. Malden, MA: Blackwell Publishing LTD.
Sadgrove, Kit. (2005). The Complete Guide to Business Risk Management. 2nd Ed., Burlington, VT: Gower Publishing LTD.
Schlossberg, Brandi. (February 2008) Massage Magazine, “Be Ready for Risks.”
Sallie Deitz serves in education and product development with Bio Therapeutic, Inc., and the Bio Therapeutic Institute of Technology, in Seattle, Wash. Deitz has been a licensed aesthetician for 25 years, has 12 years of clinical experience, and is the author of The Clinical Esthetician, An Insider’s Guide to Succeeding in a Medical Office (2004), Milady Publishing; and Amazing Skin, A Girl’s Guide to Naturally Beautiful Skin (2005), Drummond Publishing Group. Sallie Deitz is a contributing author on Milady’s Standard Comprehensive Training for Estheticians (2004), and Milady’s Standard Esthetics: Fundamentals, 10th ed. (2008). She is an editorial advisory board member for Plastic Surgery Products, Los Angeles, Calif., and serves as a committee member in test development for NIC (National Interstate Council of State Boards of Cosmetology - Esthetics Division).