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Entries in Thermage (28)

Friday
May242013

Dr. Jose A. Garcia, Medical Director of Aura Laser Skin Care

Dr. Jose A. Garcia takes part in molding new physicians in cosmetic medicine and surgery. Is he seeing a paradigm shift in medical education?

Name: Jose A. Garcia, MD, FACOG, FACS, FICS, FAACS
Clinic: Aura Laser Skin Care
Location: Kirkland/Bothell, WA
Website: AuraLaser.com

That's interesting: From the inception time of Aura Laser Skin Care back in 2005, we looked at the many technologies that were available and decided to go with the ELOS technology by Syneron. ELOS stands for electro-optical-synergy and combines both radio frequency with light energies to produce safe and effective treatment. Furthermore, for laser hair removal, Syneron uses the 810 diode which is fast and works for all hair color and skin types. We initially looked at the ND Yag by Cutera as well as the Alexandrite. The problem was that the Alex is painful and good for skin types 1 and 2. The ND Yag is best suited for skin types 3,4, and in some cases 5. That meant that we had to purchase 2 lasers or a combo Alex-Yag laser as opposed to only one laser with Syneron.

Click to read more ...

Friday
Apr192013

Brian Buinewicz MD, Plastic Surgeon At Le MedSpa In New Jersey

Juggling tasks at the medspa, at a hospital and at the university is no easy task. Let's see how Dr. Buinewicz handle multiple responsibilities and manage priorities.

Name: Dr. Brian Buinewicz
Clinic: Le MedSpa of Buckingham and Flemington
Location: Doylestown, PA and Flemington, NJ
Website: lemedspabucks.com

Your clinic basically offers a holistic approach in a sense that it covers everything from face, to body and even health and nutrition. How did you grow your business? How is your clinic organized? 

Our practice is a dual physician based practice covering all of the patient’s needs from nutrition, exercise, primary health care, weight management in addition to our full service medical spa and plastic surgery services. The business grew naturally by constantly offering the best and newest treatments for our patients. We evolved over the years to have a “tool chest” full of options to offer our patients, not just surgical intervention, for example. When the only tool you have is a hammer, the whole world becomes a nail.

Click to read more ...

Tuesday
Oct162012

Michael A. Persky, MD, FACS In Encino, CA

Dr. Persky considers his work to be as much an art form rather as a medical procedure.

Name: Dr. Michael A. Persky
Clinic: Persky Sunder Facial Plastic Surgery
Location: Encino, CA
Website: drpersky.com

What IPL or laser technologies are you using? What technologies do you like? Which do you dislike and why?

We have used the complete line of Fraxel lasers since their inception. Initially, many colleagues were skeptical about the results we were seeing, now Fraxel lasers have become the gold standard for laser skin rejuvenation and resurfacing. We do not use IPL in our practice, but feel that our Fraxel Dual laser treats brown spots like “an IPL on steroids”.  We currently are using Ulthera to non-invasively lift and tighten the face, neck, and eyebrows as well as treating fine lines around the mouth and eyes. We find that when combined with Sculptra and other facial fillers, results are quite satisfying for both patient and physician.

Technology companies may tell the physician anything to sell them the item. Physicians must do their “due diligence”, and not believe everything that they are told. Technologies such as Thermage have not lived up to their hype, and others like Zerona are just plain “snake oil”. The latest technology that we are most excited about is Cellulaze, a minimally invasive one time treatment that effectively treats cellulite.

What treatments have you observed to be the most profitable? Have you dropped any treatments?

Surgical treatments are most profitable. Next come non-invasive treatments such as Ulthera, Fraxel, and CoolSculpting. Injectables are profitable as well, including Sculptra, Botox, Dysport, Juvederm, Restylane, and Radiesse. The use of cannulas for injection has revolutionized our use of Radiesse for “quick” facial volumization. We have dropped laser hair removal and radiofrequency skin tightening treatments.

Click to read more ...

Monday
Oct012012

Dr. An Po Chung, Plastic Surgeon Performing Fat Transfer In Taiwan

Dr. An Po Chung Taiwan Plastic Surgeon

Name: An Po Chung M.D., MSC
Location: Taipei, Taiwan
Website: 4flower.com.tw

Dr. An Po Chung is a professional member of Taiwan Surgical Society of Specialist, Taiwan Plastic Surgery Medical Association, Physicians Cosmetic Surgery in Taiwan Medical Association specialist Deputy Secretary-General of facial plastic surgery Medical Association and International Cosmetic Surgery Medical Association.

Can you tell us what is it like practicing cosmetic surgery in Taiwan in comparison with what you see in other countries?

From my experience of attending several international conferences, I noticed that cosmetic surgery in Taiwan is not so different from the other countries. However, the patients in Taiwan prefer minimal invasive cosmetic surgery. Some of them have unrealistic high expectations of non-invasive treatment such as filler and Botox.

Click to read more ...

Monday
Sep102012

Nick Carr MD, FRCSC, Canadian Plastic Surgeon & Educator

Dr. Nick Carr shares his thoughts on the medical education system in Canada as a plastic surgeon and eductor.

Name: Dr. Nick Carr 
Location: Vancouver, Canada
Website: skinworks.ca

That's interesting: Dr. Nick Carr is a Royal College Examiner in Plastic Surgery.

Click to read more ...

Saturday
Jul282012

Pioneer Of Non-Surgical Rhinoplasty, Dr. Alexander Rivkin In LA

Dr. Alexander Rivkin is an international authority on non-surgical cosmetic treatments who provides non-invasive and non-ablative treatments in Southern California.

Name: Alexander Rivkin, MD
Clinic: Westside Aesthetics
Location: Los Angeles, CA 
Website: Westside Aesthetics

That's Interesting: After several years of being an Allergan Clinical Educator, Dr. Rivkin was recently honored with Diamond level status: recognition that he is among the top 1% of Botox providers in the nation

He is a prominent member of the national teaching faculties for Allergan, Contura, Johnson and Johnson, Medicis and Bioform. He is also a member of the physician advisory board for Contura and serves on the boards of a number of charities including the Lynne Cohen Foundation for Breast and Ovarian Cancer Research.

I first met Dr. Rivkin somewhere around 2002 when I was attending a "medical spa conference" and Westside Aesthetics was on the tour. At the time, Westside Aesthetics was located above a salon but now Westside Medical Spa is tucked away on Gayley Avenue near UCLA. 

Dr. Rivkin is renowned for non-surgical alternatives to commonly performed cosmetic procedures. He was the first physician in the country to offer the Non-Surgical Nose Job, his signature method for non-invasive correction of cosmetic nasal irregularities.

Click to read more ...

Thursday
May102012

Wilfred Brown, MD, FACS: Plastic Surgeon In Connecticut & New York

Dr. Wilfred Brown has a medical spa and plastic surgery practice in Middlebury, Connecticut and belongs to New York Aesthetic Consultants, a group practice in Manhattan's Upper East Side.


Splitting time between two practices in different states poses some challenges.

Name: Dr. Wilfred Brown
Location: Middlebury. CT and New York, NY
Website: thenyac.com; drwilfredbrown.com

That's Interesting: Dr. Brown completed his medical training at the University of Witwatersrand in Johannesburg, South Africa then six years of General Surgery training through Yale University, followed by a fellowship in Plastic and Reconstructive Surgery and Pennsylvania State University.

Click to read more ...

Monday
Apr092012

Warren Seiler MD, A Laser Center & Medical Spa In Alabama

Warren B. Seiler III, MD, A Board Certified Cosmetic Laser Surgeon in Alabama

Dr. Seiler is a speaker, preceptor and physician trainer for Lumenis Laser Company and injection trainer for Allergan (manufacturer of Botox & Juvederm).

Birmingham Alabama is home to Seiler Skin, Cosmetic Laser Center & Medical Spa, a single-physician clinic run by Dr. Warren Seiler and his wife. We sat down with Dr. Seiler to find out what he thinks of the current crop of cosmetic lasers, how he runs his clinic, and hear what advice he has for other physcians.

Name: Dr. Warren B. Seiler III
Location: Homewood, AL
Website: seilerskin.com

That's interesting: Dr. Seiler is a Board Examiner and the Executive Director of the American Board of Laser Surgery and co-author of the ABLS examination text book and board certification exam.

As a single physician owner, how does your clinic operate?

My practice, Seiler Skin Cosmetic Laser Center, is a single physician driven cosmetic practice. I personally perform the laser and injectable procedures. I have a very good medical aesthetician working directly under me who helps patients with skincare programs, Hydrafacial, chemical peels, and laser hair removal. My wife is our marketing and website director and she is co-owner with me in the practice. We run the practice together, but we have an office manager that helps.  I perform fractional CO2, Fraxel, Thermage, Laser Hair Removal, Laser Spider Vein treatments, IPL, and others. Botox and Juvederm are the only injectables, although I have tried many others, I feel they are the best. Our practice is really the only one in Birmingham in which the physician specializes entirely in cosmetic laser procedures and nothing else, which really helps to offer the experience that I provide.  

Click to read more ...

Wednesday
Apr042012

Dr. Shervin Naderi, Rhinoplasty, Botox, & Injectables In Virginia & Maryland

Shervin Naderi MD focuses on Rhinoplasy and injectibles at the Naderi Center for Rhinoplasyt & Cosmetic Surgery in Herndon, Virginia and Chevy Chase, Maryland.

With his emphasis on Rhinoplasty, Botox, Dysport and filler injections, Dr. Maderi has other plastic surgeons referring patients to his clinics in Virginia and Maryland. We thought we should sit down and learn from Dr. Naderi what he thinks about running a cosmetic practice.

Name: Shervin Naderi, MD, FACS
Location: Herndon, VA and Chevy Chase, MD
Website: VirginiaFacialPlasticSurgery.com

That's interesting: Dr. Shervin Naderi is Board Certified Facial Plastic & Reconstructive Surgeon and ultra specialized in Rhinoplasty and minimally invasive facial injections.  Hes' also a Board Examiner for the American Board of Facial Plastics & Reconstructive Surgery and a consultant and instructor for Allergan and Medicis, teaching Botox, Dysport and facial dermal filler injections to other physicians and nurse injectors.

Click to read more ...

Wednesday
Mar072012

Interview: Lila Bratani MD, Plastic Surgeon In Germany

AA look at plastic surgery in Germany with Dr. Lila Bratani.

Physician:  Dr. Lila Bratani
Location: Karlsruhe, Germany
Website: www.drbratani.com, http://www.estheticon.de/chirurgen/dr-lila-bratani

That's interesting: Dr. Lila Bratani is recognized as a member of Stanford's Who's Who for having demonstrated outstanding leadership and achievement in her field.

How did your cosmetic medicine training kick off?

Back when I was a teenager, I was attracted to aesthetic medicine and of course beauty and anti-aging. My first step in Plastic Surgery was when I got a good training by my teacher, Prof. Muehlbauer, one of the leading aesthetic surgeons in Germany and recognized worldwide. I also completed a fellowship in advanced aesthetic medicine and got trained in cadaver courses in Brazil (Sao Paulo and in Brasilia). I was working with great colleagues and I am still learning a lot of new techniques in the aesthetic medicine field. The art of this profession gives the ultimate satisfaction.

Can you tell us more about your surgical clinic and how it's organized?

I’m the chief of the Plastic and Aesthetic Department in a private clinic. The owners are dermatologists and it works perfectly. We offer plastic surgery, hand surgery as well as non invasive treatments such as laser. We also have 3 cosmeticians in our skin cosmetic center. The clinic consists of: 1 plastic surgeon (me), 6 dermatologists, 3 cosmeticians, 1 practice manager, 1 PR and clinic manager, 1 OR nurse, 3 frontdesk assistants and 8 physician assistants. We serve to a mix of private and state health care patients.

The requirements for hiring staff in our plastic and aesthetic surgery clinic are very high. PA’s and nurses have to understand that they need to have this extra “service” for extraordinary plastic surgery patients. We like them to have a corporate identity that represents our clinic well and of course a fabulous attitude and behavior.

We use commission on the cosmetic sales.

What laser technologies are you using? What are your thoughts about the technologies you’re using now?

We don’t use IPL, but we are using Alexandrite, Ruby, NdYag laser and Fraxel, CO2-Laser. I like most of the Fraxel  and new devices of Radiofrequency (Thermage and BodyTite). I have a lot of experience on the smooth liposuction with radiofrequency using the BodyTite device and so far, I'm seeing great results with skin tightening.

Where do you spend money on advertising? What works best for your practice?

We have websites, social media as Facebook, publications on newspapers and  journals such as Vogue. We also distribute e-newsletters for existing patients via email. In the waiting rooms, we showcase programs with different techniques of aesthetic procedures. This kind of advertising works much better than handing out external flyers or ads. 

(Sponsored: See Frontdesk waiting room videos for plastic surgeons and dermatologists.)

What are the in demand treatments in your clinic? Are you planning to add something new?

All kind of aesthetic surgery procedures like breast augmentation, facelifts, liposuction and face skin rejuvenation with radiofrequency as well the small procedures as fillers such as Botulinum toxin therapy.  I will be adding more fat grafting and liposculpturing techniques soon.

What have you learned about practicing cosmetic medicine? What stories can you tell?

I have learned to offer what I think is good for the patients and not to please the unrealistic demands of someone. Sometimes patients bring their own drawings of unrealistic body parts. I’m aware of dysmorphophobic patients and refuse to do anything on those. 

What advice would you give to other physicians based upon your experiences?

Working hand in hand with other colleagues is a benefit for starting into aesthetic medicine. You may share the cosmetic lasers and IPLs (which are very expensive) when starting your own clinic. Never underestimate the non-invasive procedures, even we plastic surgeons love it than being in the operating room with the scalpel in the hand.  Set your own “branding” so that patients will be pleased with your work and aura and will bring you more patients via word of mouth, which is also a great marketing tool.

About: Dr. Lila Bratani completed her Craniofacial and Plastic Surgery fellowship in Nova Southeastern University. With over 10 years of experience in Plastic, Aesthetic, Reconstructive, Laser and Hand Surgery, she is a university lecturer, medical manager and an esteemed health care consultant in New York,USA. She specializes in burn surgery and tissue engineering. Other than that, she is an active member of the Society of Plastic Surgeons of Germany DGPRAEC, WOSAAM (World Society of Anti Aging Medicine), IPRAS (International Society of Plastic Reconstructive and Aesthetic Surgeons) and DGBT (German Society for Aesthetic Botulinum Toxin Therapy.

This interview is part of a series of interviews of physicians running medical spas, laser clinics and cosmetic surgery centers. If you'd like to be interviewed, just contact us.

Friday
Jul022010

Thermage Repetitive Motion Lawsuit

Thermage has been sued by a Dr. Supriya Goyal Bellew on for negligence, strict products liability, and breach of implied warranties.

To be honest this looks somewhat bogus, with a physician claiming that the design of the Thermage handpeice caused recurring pain and that Thermage was negligent. You'll want to read the entire finding though. It's interesting stuff; especially the findings that preclude summary judgement.

GOYAL v. THERMAGE, INC.

SUPRIYA GOYAL, Plaintiff,
v.
THERMAGE, INC., Defendant.

Civil No. WDQ-08-0020.

United States District Court, D. Maryland, Northern Division.

July 1, 2010.

MEMORANDUM OPINION

WILLIAM D. QUARLES Jr., District Judge.

Dr. Supriya Goyal Bellew[ 1 ] sued Thermage, Inc. ("Thermage") for negligence, strict products liability, and breach of implied warranties. For the following reasons, Thermage's motion for summary judgment will be granted in part and denied in part, and Bellew's motion to strike will be denied.

I. Background[ 2 ]

On September 1, 2004, Bellew began working at the Maryland Laser, Skin, and Vein Institute ("MLSVI") as a cosmetic dermatology research fellow. Bellew Dep. 90:17-91:3. Within her first month at MLSVI, Bellew began treating patients using the ThermaCool device developed by Thermage to reduce the signs of aging in skin. Id. 124:3-16.[ 3 ] Dr. Robert Weiss[ 4 ] and his wife Dr. Margaret Weiss—both physicians at MLSVI—taught Bellew how to use the device. Id. 130:9-10; Margaret Weiss Dep. 174:2-8.[ 5 ]

The ThermaCool device has a handheld component (the "ThermaCool handpiece"), which the operator holds to the patient's skin while pressing a manual button or a foot pedal to deliver radio frequency pulses. Pl.'s Dep. 111:8-112:5, 135:4-7. After instructing Bellew on its proper use, Robert Weiss observed her using the ThermaCool handpiece and told her that she "was doing everything properly and appropriately and delivering treatments the way that they were supposed to be done." Id. 131:21-132:6. The design of the handpiece required Bellew to hold her wrist and arm "in a bent, flexed position at a very odd angle for the entire treatment," id. 112:7-10,[ 6 ] and several physicians at MLSVI, including Bellew and Robert Weiss, commented that the device was "awkward" to use, id. 134:9-20.

In October or November 2004,[ 7 ] Bellew began to have soreness and pain, which she associated with her use of the ThermaCool device. Id. 208:13-20. At first, she experienced temporary soreness in her right hand, arm, shoulder, and neck, but her symptoms progressed to intermittent "shooting pain" and "clawing up of [her] ring and pinky fingers" for up to a few days after she performed a Thermage treatment. Id. 206:14-21, 208:13-20. Bellew mentioned these symptoms to the Weisses, who told her that they experienced similar pain and that it was "normal and not anything unusual." Id. 152:16-21. Upon the Weisses' advice, Bellew took over-the-counter pain medications and rested her arm, which completely relieved her symptoms. Id. 151:17-20, 153:8-11. Because the pain was transient and manageable with Advil, Bellew attributed her discomfort to use of new muscle groups that she had not previously used and "did [not] really worry about it." Id. 151:3-20.

On January 4, 2005, Bellew delivered almost 1200 pulses during two Thermage treatments, id. 170:6-8, 209:3-5, and developed pain that was different and more severe than her previous pains, id. 213:18-214:4.[ 8 ] That evening, Bellew wrote to the Weisses to explain that she had "shooting pains and muscle spasms in [her] right hand and wrist," which she attributed to the ThermaCool handpiece. Def.'s Ex. 7 (Jan. 4, 2005 e-mail from Bellew).[ 9 ] On January 5, 2005, Bellew wrote again to say that she was "concerned about nerve damage," planned to schedule an orthopedics appointment, and would not be able to perform Thermage treatments until her hand had healed. Def.'s Ex. 6.[ 10 ]

On January 18, 2005, Dr. Thomas Brushart diagnosed Bellew with "irritation [of her] right ulnar nerve secondary to repetitive motion," which "appear[ed] directly related to her use of the Thermage machine." Pl.'s Ex. 8 at GOYAL:JHH:0010. Although Bellew never again used the Thermage device, her ulnar neuropathy and a resulting chronic pain syndrome have persisted. Pl.'s Dep. 51:13-20, 52:8-17, 209:15-16.

On January 2, 2008, Bellew sued Thermage for negligence, strict products liability, and breach of the implied warranties of merchantability and fitness for its ordinary purpose. Paper No. 1. On March 20, 2008, Thermage moved to dismiss the breach of warranty claims, Paper No. 5, and answered the other claims, Paper No. 6. On June 5, 2008, Judge Andre M. Davis denied the motion to dismiss and ordered Thermage to file an amended answer by June 19, 2008. Paper No. 12.[ 11 ] On October 31, 2008, Judge Davis granted Thermage's motion to amend its answer to include several new affirmative defenses. Paper No. 32. On November 18, 2009, Thermage moved for summary judgment. Paper No. 55. On February 23, 2010, Bellew moved to strike the statute of limitations defense to the implied warranty claims from the motion for summary judgment. Paper No. 66.

II. Analysis

A. Standard of Review

Under Rule 56(c), summary judgment "should be rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). In considering a motion for summary judgment, "the judge's function is not . . . to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). A dispute about a material fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. at 248. The Court must "view the evidence in the light most favorable to . . . the nonmovant, and draw all reasonable inferences in h[is] favor," Dennis v. Columbia Colleton Med. Ctr., Inc., 290 F.3d 639, 645 (4th Cir. 2002), but the Court also "must abide by the affirmative obligation of the trial judge to prevent factually unsupported claims and defenses from proceeding to trial," Bouchat v. Baltimore Ravens Football Club, Inc., 346 F.3d 514, 526 (4th Cir. 2003).

B. Statute of Limitations for Breach of Warranty Claims

Thermage argues that Bellew's breach of warranty claims are barred by the four-year statute of limitations. Def.'s Summ. J. Mot. 10-11. Bellew moved to strike this affirmative defense from the motion for summary judgment, arguing that Thermage waived this defense by not timely raising it. Paper No. 66 at 6-12.[ 12 ]

Generally, a defendant waives the statute of limitations by failing to raise that defense in its answer or a pre-answer motion. See Fed. R. Civ. P. 8(c) & 12(b); Erline Co. S.A. v. Johnson, 440 F.3d 648, 653-54 (4th Cir. 2006). However, the court will "freely give leave" to amend pleadings "when justice so requires." Fed. R. Civ. P. 15(a)(2). The Court previously considered and rejected Bellew's argument that Thermage waived the statute of limitations defense by failing to raise it in the original answer and allowed amendment of the answer to include that defense. See Paper No. 28 at 13-14; Paper No. 32. Because Thermage asserted the statutes of limitations as an affirmative defense in its amended answer, see Paper No. 24, Ex. 2 at 10,[ 13 ] that defense was not waived and may be raised on summary judgment. Accordingly, her motion to strike the breach of implied warranties claims will be denied.

Under Maryland law, "[a]n action for breach of any contract for sale must be commenced within four years after the cause of action has accrued." Md. Code Ann., Com. Law § 2-725(1). Generally, a cause of action for breach of warranty accrues "when tender of delivery is made." Id. § 2-725(2). But if "a warranty explicitly extends to future performance of the goods and discovery of the breach must await the time of such performance [then] the cause of action accrues when the breach is or should have been discovered." Id.

Here, no explicit warranty extended the implied warranties to future performance of the Thermage device. Thus, a timely filing would have required Bellew to have been injured by a device delivered between January 2, 2004[ 14 ] and January 4, 2005.[ 15 ] Shipment records indicate that Thermage delivered a ThermaCool system to MLSVI in 2002; no Therma-Cool system handpieces were delivered to Dr. Robert Weiss or MLSVI from January 1, 2004 to January 5, 2005. Julie Hill Aff. ¶¶ 3-6, Nov. 16, 2009. Because Bellew did not bring her breach of warranty claims within four years of the ThermaCool handpiece's delivery, those claims are barred by the statute of limitations.

C. Statute of Limitations for Tort Claims

Thermage argues that Bellew's tort claims are barred by the three-year statute of limitations. Def.'s Mot. Summ. J. 11-18. Bellew argues that this issue cannot be decided on summary judgment because there is a question of fact about when the limitations period began. Pl.'s Summ. J. Opp. 8-33.

Under Maryland law, "[a] civil action at law shall be filed within three years from the date it accrues" unless otherwise provided by another Code provision. Md. Code Ann., Cts. & Jud. Proc. § 5-101.[ 16 ] To determine when a cause of action "accrues," Maryland follows the "discovery rule," which starts the limitations period when the plaintiff had notice of a claim. Pennwalt Corp. v. Nasios, 314 Md. 433, 550 A.2d 1155, 1165 (Md. 1988). Notice requires actual knowledge, either express or implied, of the facts underlying the cause of action. Id. at 1160, 1165-66.[ 17 ] Accordingly, in a products liability tort action, "the statute of limitations [does] not begin to run until the plaintiff knows or through the exercise of due diligence should know of injury, its probable cause, and either manufacturer wrongdoing or product defect." Id.

"[T]he party raising a statute of limitations defense has the burden of proving that the cause of action accrued prior to the statutory time limit for filing the suit." Newell v. Richards, 323 Md. 717, 594 A.2d 1152, 1156 (Md. 1991). To show that a plaintiff was on inquiry notice of her potential claim, the defendant must prove that "(1) the plaintiff[] knew of facts sufficient to cause a reasonable person to investigate further, and (2) a diligent investigation would have revealed that the plaintiff[]" suffered injury probably caused by the defendant's wrongdoing. Pennwalt, 550 A.2d at 1163-64; Quillin v. C.B. Fleet Holding Co., No. CCB-07-00503, 2007 WL 3103903, at *3 (D. Md. Oct. 11, 2007). "[Q]uestions of fact on which a limitations defense will turn are to be decided by the jury or, when sitting as a jury, by the court." O'Hara v. Kovens, 305 Md. 280, 503 A.2d 1313, 1323 (Md. 1986).[ 18 ]

Because Bellew filed this suit on January 2, 2008, her tort claims must have accrued on or after January 2, 2005 to be within the limitations period. The parties dispute when Bellew knew or should have known that she was injured and had a potential claim against Thermage.

Bellew argues that she was not on notice of her injury until January 4, 2005. In support of that position, she has produced an affidavit and deposition from one of her treating neurologists at Johns Hopkins, Dr. Beth Murinson. See Pl.'s Ex. 2 & 3. In her deposition, Murinson explained that neuropathic nerve injury can be difficult to diagnose and requires a "correlation of medical history with . . . diagnostic testing." Beth Murinson Dep. 113:9-13, 115:5-17, Jan. 13, 2010.[ 19 ] Murinson has testified that the symptoms Bellew experienced in 2004 may have "indicat[ed] that [her] ulnar nerve was being temporarily compressed" but that such "[m]inor temporary compression of the ulnar nerve does not ordinarily result in clinically significant injury to the nerve." Beth Murinson Aff. ¶ 7, Jan. 13, 2010. She further explained that "[t]here is no medical evidence . . . to prove . . . with certainty, that [Bellew] suffered a clinically significant, permanent injury during the initial period of months when she first used the Thermage device." Id. ¶ 7; Murinson Dep. 200:21-202:17, 205:2-14. By contrast, the severe and unabating pain that Bellew experienced on and after January 4, 2005, was indicative of a "clinically significant injury." Murinson Aff. ¶ 8; Murinson Dep. 111:16-113:6.

Consistent with Murinson's testimony, Bellew stated that, until January 4, 2005, she attributed her symptoms to normal pain associated with exercising new muscle groups. Her conversations with Thermage-experienced physicians, the transient nature of her symptoms, and her ability to gain relief using over-the-counter pain medications further reinforced her belief that the pain was "normal" and nothing to worry about. Although she may have known that the Thermage device was "conducive to developing a repetitive use injury" before January 4, 2005, Bellew did not suspect that she had suffered such an injury until that date.

Given this evidence, a reasonable jury could conclude that Bellew did not have notice of her injury until after January 2, 2005; accordingly, summary judgment must be denied.

D. Assumption of the Risk

Thermage argues that Bellew assumed the risk of injury because she recognized that the ThermaCool handpiece might cause a repetitive use injury and experienced symptoms of such an injury but continued to use the device until January 4, 2005. Def.'s Summ. J. Mot. 18-19.

To establish the assumption of the risk defense in a products liability action, the defendant must show that the plaintiff (1) knew of and appreciated the risk of danger, (2) voluntarily confronted that risk, and (3) was unreasonable in her decision to encounter the known risk. Ellsworth v. Sherne Lingerie, Inc., 303 Md. 581, 495 A.2d 348, 356 (Md. 1984).[ 20 ] The test of whether the plaintiff knew of, appreciated, and voluntarily confronted "the risk involved in a particular situation is an objective one . . . and ordinarily is a question to be resolved by the jury." Morgan State Univ. v. Walker, 397 Md. 509, 919 A.2d 21, 24, 26-27 (Md. 2007)(internal citations omitted). But, "when it is clear that a person of normal intelligence in the position of the plaintiff must have understood the danger, the issue is for the court." Schroyer v. McNeal, 323 Md. 275, 592 A.2d 1119, 1123 (Md. 1991).[ 21 ] If established, assumption of the risk is "a complete bar to recovery because `it is a previous abandonment of the right to complain if an accident occurs.'" ADM P'ship, 702 A.2d at 734 (quoting Warner v. Markoe, 171 Md. 351, 189 A. 260, 264 (Md. 1937)).

Here, the parties dispute, inter alia, whether Bellew appreciated the risk of danger and was unreasonable in her choice to continue delivering Thermage treatments until January 4, 2005. To support her argument that she did not fully appreciate the risk, Bellew has offered evidence that she (1) had limited experience with Thermage prior to her fellowship at MLSVI, (2) relied on the Weisses' assurance that her pains were "normal," (3) associated her symptoms in 2004 with new muscle use, and (4) used the device for only a few months before her injury occurred. Bellew also argues that, even if she appreciated the risk of danger, she has shown that her choice to continue delivering Thermage was reasonable because the Weisses had experienced similar pain without long-lasting injury and over-the-counter pain medication alleviated her pain entirely. Because a reasonable jury could find that Bellew did not assume the risk of her injury, summary judgment based on this defense must be denied.

III. Conclusion

For the reasons stated above, Thermage's motion for summary judgment will be granted as to the claims for breach of implied warranty and denied as to the negligence and strict liability claims.

The Thermage sumary judgement is here

Friday
Oct022009

Solta illumiNATION Tour: Thermage & Fraxel

Solta is taking it's show on the road with the illumiNATION tour. (Perhaps the Illuminati for Fraxel & Thermage?)

You can see if it's passed you by yet or you still have a shot at getting some finger food and a demo.

You can see the site detailing the tour here.

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