Date: 09-16-2015

Case Style: Jennifer Bettenhausen v. Looks By Malissa, Inc. d/b/a BA Med Spa & Weight Loss Center

Case Number: CJ-2013-5357

Judge: Jefferson D. Sellers

Court: District Court, Tulsa County, Oklahoma

Plaintiff's Attorney: Victor Robert Wandres

Defendant's Attorney: Rachel Mathis and Jill Walker-Abdoveis

Description: Tulsa, OK - Jennifer Bettenhausen sued Looks By Malissa, Inc. d/b/a BA Med Spa & Weight Loss Center on a negligence theory claiming:

This is a case of gross negligence and fraud by a self-described “Medical Spa and Weight Loss Center”) and one of its technician employees. The BA Med Spa actively advertises and solicit patients for a business venture known as “BA Med Spa and Weight Loss Center” The BA Med Spa does not inform the public that the laser hair removal procedures offered are dangerous, unsupervised and performed by individuals with minimal training This is an aggravated case involving a Plaintiff who was severely burned by one of an inexpenenced technician, the Defendant, Jane Doe (name currently unknown).
PARTIES, JURISDICTION AND VENUE
1. The Plaintiff, Jennifer Bettenhausen, is a resident of Tulsa County, State of Oklahoma.
2. The Defendant, Looks by Malissa, Inc. dba BA Med Spa and Weight Loss Center is a corporation organized under the laws of the State of Oklahoma with its principal place of business in Tulsa County, State of Oklahoma.
3. The Defendant, Jane Doe, is a technician who was employed by the BA Med Spa at the time that Plaintiff suffered her injuries. Plaintiff does not know Jane Doe’s real name, current employment or whereabouts.
4. The acts and omissions complained of herein occurred in Tulsa County, State of Oklahoma. This court has jurisdiction and venue is proper herein.
BACKGROUND AND GENERAL ALLEGATIONS
6. Defendant Looks by Malissa, Inc. operates a facility known as “BA Med Spa and Weight Loss Center” located at 500 South Elm Place, Broken Arrow, Oklahoma. Defendant Jane Doe was, during the relevant period, a technician employed by the BA Med Spa.
7. Defendant Looks by Malissa, Inc. holds itself out to the public, including Plaintiff, as employing experts in several medical areas, including laser hair removal. The BA Med Spa actively advertises its services on the internet stating that “Laser Services” include “Painless Hair Removal” which is “Safe and Effective” offered by a “Medical Director.” The BA Med Spa has advertised that Dr. Campbell and his Medical Spa’s treatments are “virtually pain-free, with no medication required,”“recovery-free, so you can return to normal activities immediately,” and are “perfect for any area of the body.”
8. Defendant Looks by Malissa, Inc. also lures patients to its medical spa by discount coupons and introductory or new patient packages such as Groupons with deceptive low introductory prices, especially when negligently-performed procedures cause their patients to seek additional medical advice and to incur additional medical expenses such as Ms. Bettenhausen’s case.
9. After purchasing a “Groupon” for a set of laser hair removal treatments, Plaintiff Jennifer Bettenhausen made an appointment with the BA Med Spa for the purpose of having the laser hair removal procedure performed on her legs.
10. On or around September 7, 2011, Plaintiff Jennifer Bettenhausen visited the BA Med Spa for her first laser hair removal treatment. Over the course of several months, Plaintiff received 4 laser hair removal treatments performed by BA Med Spa technician Olga Strickland without incident. None of the treatments were supervised by a physician.
11. However, on or around March 13, 2012, Plaintiff appeared for her scheduled appointment but technician Olga Strickland was not available at the BA Medical Spa. Instead, Plaintiff was treated by two technician employees that Plaintiff had never seen before, including defendant Jane Doe. Jane Doe appeared to be receiving training from another technician during the hair laser removal procedure. Neither Defendant Jane Doe nor the other technician had performed the procedure on Plaintiff previously.
12. During the hair removal procedure, the first technician left the room after demonstrating to Jane Doe the hair removal procedure on Plaintiffs right leg. Jane Doe then began performing hair removal procedure on Plaintiff’s left leg. As the procedure continued however, Plaintiff noticed an increased level of discomfort on at the site of her tattoo on her lower right leg.
13. Jane Doe discontinued with the procedure after Plaintiff stated the pain level was too intense to continue. After the procedure, after Plaintiff complained about the pain, Jane Doe stated that Plaintiff’s legs should feel like a sunburn and that the bumps would go away after a while. A doctor was never summoned and never appeared.
14. After the hair removal process was completed, the first technician returned and both she and Jane Doe re-examined Plaintiff’s legs and stated that the results were what was expected and sent Mrs. Bettenhausen on her way. Notably, Plaintiff’s chart is silent regarding the laser burn.
15. A few days later, Plaintiff noticed that the area around her tattoo began to swell
and blister.
16. Plaintiff sought treatment for the burn from a dermatologist who gave her instructions on how to care for the wound caused by the laser hair treatment and prescribed her medication and treatment at the site of the burn.
17. Defendant has seen several medical doctors since the date of the burn and has been told that the burn has caused permanent nerve damage to her leg. She now unable to stand for periods of time which affects her ability to work and normal activities.
18. All injuries caused by Jane Doe, using Medical Spa machinery, were in the course of and scope of her employment for the Defendant.
19. The BA Med Spa made no attempt to call Plaintiff to make inquiry about her burns even after Plaintiff failed to return the next month to complete her purchased treatments. The money Plaintiff paid to the Medical Spa for the remaining sessions has not been refunded to Plaintiff.
20. In addition to the pain and suffering and the permanent scarring on her body, Plaintiff has experienced permanent nerve damage as a result of Defendants’ negligence. Additionally, Plaintiff may have permanent hypopigmentation or hyperpigmentation. Plaintiff may have an increased risk of sunburn, an increased risk of skin cancer, and an increased likelihood of dermatitis and ulceration. Furthermore, Plaintiff may have permanent muscle or ligament injury in addition to the nerve injury. This harm was directly and proximately caused by Defendants.
CLAIMS FOR RELIEF
First Claim
(Ne21ience against all Defendants)
21. Paragraphs 1 through 20 are incorporated by reference.
22. The injuries sustained by Plaintiff occurred as a direct and proximate result of the negligence, careless disregard and recklessness of the Defendants Looks By Malissa, Inc. and Jane Doe. The conduct when viewed in its totality and compared with reasonably accepted standards must be characterized as unacceptably deficient and grossly negligent. The acts and omissions complained of herein include, but are not limited to, the following:
(a) The Defendants failed to disclose to Plaintiff that the dangerous medical procedure would be performed by an unsupervised and ill-trained technician rather than a medical doctor.
(b) The Defendants failed to employ proper medical techniques in their treatment of Plaintiff and used untested and/or defective equipment;
(c) The Defendants failed to adequately monitor Plaintiffs status both during and after the procedure;
(d) The Defendants failed to timely recognize and treat the injuries caused by poor medical technique resulting in irreversible injury to Plaintiff;
(e) The Defendants failed to timely act to obtain professionals who could render appropriate medical and surgical treatment for Plaintiff
(f) The Defendants failed to timely act in diagnosing and treating their patient when they knew or reasonably should have known that their actions and omissions would expose her to severe injury as a direct result of the course and method of treatment they provided;
(g) Defendants failed to supervise a dangerous medical procedure performed by a technician with minimal training.
23. As a direct result of such negligence, Plaintiff has been damaged in an amount in excess of $10,000.00.
Second Claim
(Ne1igent Supervision against Looks By Malissag Inc.)
24. Paragraphs 1 through 23 are incorporated by reference.
25. In addition to the negligence and other acts and omissions referred to above,
Looks By Malissa, Inc. was negligent because it failed to have a medical doctor supervise a
dangerous medical procedure performed by a technician. Apparently, all responsibility was
abdicated to a technician whose incompetence and negligence contributed to the injury and
damage to Plaintiff.
26. Not only did the Defendant fail to supervise the procedure performed by Jane
Doe, it failed to properly instruct and train Jane Doe and other technicians in the use of
dangerous equipment.
27. As a direct result of the Defendant’s negligent supervision, Plaintiff has been
damaged in an amount in excess of $10,000.00.
Third Claim
(Actual Fraud aamst Looks By Malissag Inc.)
28. Paragraphs 1 through 27 are incorporated by reference.
29. As more particularly described above, the representations made by Looks By
Malissa, Inc. regarding the safety and painlessness of the laser hair removal procedure were false
or were made with reckless disregard as to their truth or falsity. The misrepresentations were
made with the intent that Plaintiff rely upon them and Plaintiff relied, reasonably and justifiably,
upon those misrepresentations to her detriment. Looks By Malissa, Inc. omitted from its
advertisements and literature critical information about the risk and danger of the equipment
being utilized in the laser hair removal process.
30. As a result of the fraudulent misrepresentations and omissions of Looks By
Malissa, Inc., Plaintiff has been damaged in an amount in excess of $10,000.00.
Fourth Claim
(Constructive Fraud against Looks By Malissag Inc.)
31. Paragraphs 1 through 30 are incorporated by reference.
32. As more particularly described above, the conduct of Looks By Malissa, Inc. constituted constructive fraud pursuant to the provisions of 15 Okia. Stat. § 59. Looks By Malissa, Inc. owed Plaintiff a duty to use reasonable medical care in performing the treatment. The representations made by Looks By Malissa, Inc. concerning the laser hair removal procedure were false. Even if those representations did not constitute actual fraud under applicable state and common law (which they do), they were, at the very least, designed to gain an unfair advantage over Plaintiff for the purpose of obtaining compensation for the hair removal procedure.
33. Looks By Malissa, Inc. misrepresented to Plaintiff certain facts and omitted from disclosure to Plaintiff other material facts, all as set forth herein. Those misrepresentations and omissions were material and Plaintiff had an absolute right to be correctly informed about all facts, including those with respect to the equipment used during her procedure and the personnel using that machinery. Plaintiff reasonably relied upon the misrepresentations of Looks By Malissa, Inc. who had the duty to act with care in conveying to or concealing facts and other information from Plaintiff.
34. As a result of those negligent misrepresentations and omissions, Plaintiff has been damaged in an amount in excess of $10,000.00.
Fifth Claim
(Prima Facie Tort against all Defendants)
35. Paragraphs 1 through 34 are incorporated by reference.
36. The conduct of each Defendant, as described herein, was wrongful, intentional
and unexcused. Under applicable Oklahoma law, including the provisions of 76 Okia. Stat. § 1, each Defendant is bound to abstain from causing injury to Plaintiff. The acts and omissions of each Defendant, as described herein, constitute a prima facie tort against Plaintiff under applicable law.
37. As a direct result of the acts and omissions of each Defendant, Plaintiff has been damaged in an amount in excess of $10,000.00.
Sixth Claim
(Punitive and Exemplary Damages against all Defendants)
38. Paragraphs 1 through 37 are incorporated by reference.
39. The conduct of each Defendant, as set forth above, rises to the level of willful, wanton, oppressive or reckless conduct for which each Defendant should be punished by an award to Plaintiff of exemplary and punitive damages in an amount sufficient, taking into consideration the assets and net worth of each Defendant, to render the consequences of such conduct an example tO themselves and others, and, in any event, in an amount at least equal to the damages awarded under the foregoing claims.
Seventh Claim
(Agency. Joint Venture, and Conspiracy - Joint and Several Liability)
40. Paragraphs 1 through 39 are incorporated by reference.
41. At all relevant times discussed herein, each Defendant acted as a joint venturer or in another agency relationship with the others, making each a principal of the others and therefore liable for the acts of the others as agents, regardless of whether any of them authorized, directed or had knowledge of such acts of the others.
42. Each Defendant also combined and conspired to commit the acts as alleged herein and to prohibit Plaintiff from learning all relevant facts regarding the medical procedure
performed on her body. As co-conspirators, each of them is responsible for all conduct undertaken in furtherance of the conspiracy, regardless of whether he, she, or it authorized, directed or had knowledge of such acts of the others.
DEMAND FOR RELIEF
WHEREFORE, Plaintiff Jennifer Bettenhausen prays for judgment against Looks By Malissa, Inc. dba BA Med Spa and Weight Loss Center, and Jane Doe, respectively, and jointly and severally, as the case may be, as follows:
a. With respect to the First, Second, Third, Fourth and Fifth Claims, actual damages in an amount in excess of $10,000.00 for each such claim;
b. An award to Plaintiff under the Sixth Claim against each Defendant of exemplary and punitive damages in an amount sufficient, taking into consideration his, her or its assets and net worth, to render the consequences of such conduct an example to himself, herself, itself, and others, and, in any event, in an amount at least equal to the damages awarded;
c. An award of all cost incurred by Plaintiff in bringing and prosecuting these claims; and
d. Such other relief to which Plaintiff is entitled at law or in equity.

Defendant denied fault.

Outcome: Settled for an undisclosed sum and dismissed with prejudice.

Plaintiff's Experts:

Defendant's Experts:

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