E-Alert Case Updates

Court of Special Appeals Affirms That Laser Hair Removal Is the Practice of Medicine

Mesbahi v. Md. State Bd. of Physicians
(Md. App. Sep. 30, 2011)
by Kevin M. Cox, Associate
Semmes, Bowen & Semmes (www.semmes.com)

Kathy Mesbahi, M.D. (“Dr. Mesbahi”) has been licensed to practice medicine in Maryland since 1982 and is board-certified in obstetrics and gynecology. In 1999, she purchased her first laser machine and began to perform laser hair removal in her Rockville office. Dr. Mesbahi purchased another hair removal laser in June 2003 and signed a written sales quote certifying that:

[T]he [laser] medical device will be purchased by or on the order of a licensed practitioner, and used only by either a licensed physician or a licensed practitioner as defined by applicable state law. The regulations defining who can own and use a medical device vary from state to state and are subject to change. It is the buyer’s responsibility to ensure that all applicable state laws are followed.

Dr. Mesbahi later signed a sales contract and initialed the page of the contract which contained the following provision:

Seller may provide educational sessions on the system… provided, however, that the Buyer is solely responsible for the use and operation of the device in accordance with all applicable law and regulations, and for confirmation of all user qualifications. Buyer acknowledges improper use of the product carries a risk of injury to patients. Buyer represents and warrants that he, she, or it is in compliance with any and all applicable Federal, state, and local laws and regulations.

Both of Dr. Mesbahi’s sisters worked in her Rockville office, Mina Nazemzadeh (“Ms. Nazemzadeh”) as the business manager and Aghdas Rahmati (“Ms. Rahmati”) as the office receptionist. Neither sister was licensed as a physician, nurse practitioner, or physician’s assistant. However, in 2002, both sisters were trained by the laser machine manufacturer’s representative and certified competent to perform laser hair removal procedures. Between early 2003 and August of 2005, Ms. Nazemzadeh performed approximately four to eight laser hair removal procedures a day, and Ms. Rahmati performed one to two laser hair removal procedures per day during the summer of 2004 and August of 2005.

Dr. Mesbahi and her sisters received notice of charges filed against them by the Maryland Board of Physicians (“The Board”). Among other things, the Board alleged that Dr. Mesbahi aided unauthorized persons in the practice of medicine by inappropriately and unlawfully delegating laser hair removal procedures. The Board alleged that Ms. Nazemzadeh and Ms. Rahmati practiced medicine without a license by performing laser hair removal services. The Board relied upon Declaratory Ruling 00-1 (“DR 00-1”) in concluding that laser hair removal is a surgical act constituting the practice of medicine.

DR 00-1 was issued by the Board on October 30, 2002, in response to a petition from the Board of Electrologists, to address whether physicians may delegate laser hair removal to nonphysicians. In DR 00-1, the Board ruled that “[t]he use of lasers for hair removal is a surgical act. Only physicians, certified nurse practitioners, registered nurses pursuant to Board of Nursing Declaratory Ruling 97-1, and physician assistants may use lasers for hair removal.”

The Board concluded that Dr. Mesbahi and her sisters were guilty of the charges against them. The Circuit Court for Montgomery County affirmed the Board’s ruling, in part, and remanded the case as to penalties. On appeal, the Court of Special Appeals was asked to decide whether the Board erroneously relied on Declaratory Ruling 00-1 in concluding that laser hair removal is a surgical act constituting the practice of medicine.

Initially, the court held that the Board was bound by DR 00-1. According to the court, DR 00-1 clearly holds that laser hair removal constitutes the practice of medicine, and the Board was not free to ignore DR 00-1. Additionally, the court held that the Board’s reliance on DR 00-1 did not give it the force of a regulation. Rather, the Board properly treated DR 00-1 as binding precedent, not a regulation. Further, the court rejected the contention that DR 00-1 was void because the Board failed to follow its own regulations in issuing the ruling; though, only because the issue was not preserved for appellate review. Finally, in addressing the argument that the Board’s decision that laser hair removal constitutes the practice of medicine was erroneous, the court avoided ruling on the matter and decided the issue on procedural grounds – namely, the time for appealing DR 00-1 has long since expired.

In DR 00-1, the Board adopted the Board of Nursing’s definition of an “ablative surgical procedure” as “a surgical procedure designed to destroy or excise by use of a laser.” Regarding laser hair removal, the Board concluded that “since the goal of the procedure is designed to destroy or damage the hair follicle . . . it is clear that the use of lasers for hair removal is an ablative procedure.” Based upon this, the court held that it was reasonable for the Board to find that laser hair removal was a surgical act, encompassed in the statutory definition of the practice of medicine. Moreover, Dr. Mesbahi and her sisters were unable to cite any authority supporting the proposition that Maryland law permits a layman, unlicensed in any health profession, to perform laser hair removal without any supervision. The court, therefore, agreed with the Board’s legal conclusions.