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    Can he be an expert witness against a non-physician?

    Dr. Expert is a well respected laser dermatologist who practices in a jurisdiction where it is perfectly legal for non-physicians to perform cosmetic laser procedures with essentially no physician supervision. Because of these permissive legal rules, many spas in Dr. Expert’s major metropolitan city provide laser and light source treatments. Some spas require direct on-site physician supervision of procedures. Other spas are poorly supervised.

    RELATED: Am I liable for my covering physician's alleged negligence

    At one such poorly supervised spa, a state-licensed esthetician performed laser hair removal on an African American woman with a laser that was ideally used for lighter skinned individuals. Unfortunately the woman suffered both permanent scarring and pigmentary changes. Dr. Expert has been asked to serve as an expert for the suing plaintiff. Dr. Expert is uncomfortable in this role and has never served as a plaintiff’s expert. However he has become disgusted with lack of strict guidelines as to who can perform laser treatments. It is not that he has difficulty with non-physicians performing cosmetic laser treatments. He himself is a strong advocate of this practice as long as there is on-site direct physician supervision. He accepts his role as plaintiff’s expert witness because he is certain the case will be straightforward. It is not!

    Motion to exclude testimony

    Legal council for the defendant esthetician, upon finding out that Dr. Expert will testify, files a motion to exclude his testimony. The defendant’s attorney is fully cognizant that his esthetician client will be held to the same standard as a dermatologist performing laser hair removal. The motion, attempting to bar Dr. Expert’s testimony, is based on the premise that Dr. Expert is not a state-licensed esthetician and therefore should not be allowed to testify against an esthetician—even if both the physician and esthetician are ultimately held to the same standard, The defendant’s attorney has taken this stand under the assumption that it will be hard for the aggrieved plaintiff to get an esthetician to testify against another esthetician.   

    What will the court decide?

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    David J. Goldberg, M.D., J.D.
    Dr. Goldberg is Director of Skin Laser & Surgery Specialists of New York and New Jersey, Director of Mohs Surgery and laser research, ...


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