IN THE DISTRICT COURT OF OKLAHOMA COUNTY
STATE OF OKLAHOMA
KELLY BROWN, an individual )
) Plaintiff,
v. )
)
DANIELLE MCCAIN, RN, SLATE AESTHETIC LOUNGE, LLC, JENNIFER RAELENE ROBINSON, APRN, and DR. ALEXANDER R. RAINES, M.D. )
) Defendants.
PETITION
Plaintiff Kelly Brown by and through their counsel of record and for her claims against Defendants Danielle McCain, Slate Aesthetic Lounge, LLC., Jennifer Raelene Robinson, and Alexander Raines, M.D., states and alleges as follows:
PARTIES
1. Plaintiff is a citizen of Oklahoma County, State of Oklahoma, and was a citizen at all relevant.
2. Defendant Danielle McCain, RN, ("McCain") is a registered nurse licensed to practice in the State of Oklahoma, and in Oklahoma County.
3. Defendant Slate Aesthetic Lounge, LLC ("Slate") is a Medical Spa and Aesthetic Lounge company which operates in Oklahoma County, State of Oklahoma at all relevant times.
4. Defendant Jennifer Raelene Robinson, ("Robinson") a Nurse Practitioner, licensed to practice in the State of Connecticut, submitted a prescription to a pharmacy located in Choctaw, Oklahoma, and in Oklahoma County.
5. At all relevant times, Slate held itself out to the general public as a "Medical Spa" performing cosmetic medical services, including but not limited to the use of Botox, Semaglutide compounds, microneedling, hormone replacement therapy, vitamin injections, dermal filler, as well as formulating and administering Platelet-Rich Plasma injections, and Exosomes (which are derived from stem cells and not FDA approved) and using medical devices regulated by the United State Food and Drug Administration ("FDA").
6. Defendant Alexander R. Raines, M.D., ("Raines") is a physician licensed to practice medicine in the State of Oklahoma, and practices medicine in Oklahoma County, State of Oklahoma.
JURISDICTION & VENUE
7. All medical treatment at issue in this medical negligence lawsuit occurred in Oklahoma County, State of Oklahoma.
8. This Court has jurisdiction over the subject matter and the parties hereto and venue is proper in the District Court of Oklahoma County, State of Oklahoma, because the acts and omissions from which this action arises occurred in Oklahoma County, State of Oklahoma.
9. Slate entered into an agreement with Plaintiff to perform cosmetic and medical spa services in exchange for Plaintiff taking professional pictures for Slate. The agreement was formed and took place in Oklahoma County.
FACTUAL BACKGROUND
10. On or about February 11, 2024, Plaintiff, reached out to Defendant, McCain inquiring about a professional exchange of cosmetic procedures at Slate in exchange for professional photographs after a recommendation from a mutual friend.
11. On or about September 9, 2024, Plaintiff provided photography services to Slate as requested by McCain.
12. On or about September 16, 2024, Plaintiff attended her appointment with Defendant Danielle McCain regarding a Platelet-Rich Plasma ("PRP") injection treatment. During this appointment, Defendant McCain unilaterally decided to treat Plaintiff with an exosome injection (Pro-Xo Premium Skin Exosomes), touting it as the superior procedure and treatment. While Defendant McCain had unilaterally changed the treatment of Plaintiff, she continued to call and refer to the new treatment as PRP. McCain gave no insight or information as to how the two treatments differed, nor did McCain discuss Plaintiff's medical history, allergies, disclose any risks associated with the procedure, or obtain Plaintiff's informed consent to perform this or any procedure.
13. Although McCain communicated to Plaintiff that the substance being injected was derived from "umbilical cords" McCain never explained that because exosomes are not derived from the patient's own blood, but are a stem-cell derived product, they are not a PRP treatment. McCain only communicated how the exosomes were supposed to be superior, and never communicated the increased risk. There is no FDA approval for exosome products to be used on humans, much less the injection of exosomes under the eyes.
14. McCain, at all relevant times, was unsupervised and at no time before the injections was there any consultation with Dr. Alexander R. Raines, or any other physician.
15. When Plaintiff reached out to McCain within a few hours after the procedure regarding swelling and excruciating pain she was experiencing, she was told her reaction and
swelling was, “totally normal”1 to “take a Benadryl,”2 and to “…ice it.”3 McCain, then advised Plaintiff that “I’ll call steroids in.”4 even though McCain had no license to prescribe medications. Records will show that McCain had Robinson, a Nurse Practitioner, not licensed in Oklahoma, but a fellow medical spa owner in Connecticut, call in a prescription of steroids – without any consultation or conversation with Plaintiff.
16. Approximately six hours after the injections, Plaintiff continued to experience severe swelling and asked McCain, “Are you 1000% I don’t need to go like an ER?”5 McCain advises Plaintiff she is “on phone the doc,”6 and “He doesn’t think so but let’s see how you are in an hour.”7 McCain further advises Plaintiff, “Not much er they can do besides steroids which is what I called in.”8 Instead of advising Plaintiff to get medical treatment from physicians and medical professionals at a hospital, McCain attempted to dissuade Plaintiff from getting any treatment outside of the medical professionals that McCain had contacted and described what McCain believed had happened to Plaintiff. Plaintiff believes this was done in an effort to hide what McCain had done and, in an attempt, to protect herself and her business. Defendants Raines and Robinson were complicit in this egregious cover up by prescribing medications and advice without any contact or patient relationship with Plaintiff. It is unknown if McCain advised Robinson and Raines what she had the other prescribe for Plaintiff. However, Robinson and Raines each had a duty to establish a relationship and evaluate the Plaintiff prior to submitting prescriptions and advice to Plaintiff.
1 Text messages from McCain to Plaintiff on September 16, 2024
2 Text messages from McCain to Plaintiff on September 16, 2024.
3 Text messages from McCain to Plaintiff on September 16, 2024.
4 Text messages from McCain to Plaintiff on September 16, 2024.
5 Text message from Plaintiff to McCain on September 16, 2024; 4:56 p.m.
6 Text message from McCain to Plaintiff on September 16, 2024.
7 Text messages from McCain to Plaintiff on September 16, 2024.
8 Text messages from McCain to Plaintiff on September 16, 2024.
17. An hour after taking the steroids prescribed by Robinson, Plaintiff advises McCain that it “feels like it’s getting worse,”9 and that she was going to the emergency room. Plaintiff asked McCain exactly what the injections were called that she received so she could advise the emergency room doctors. McCain doesn’t respond like a health care professional that has provided a treatment which has resulted in a severe allergic reaction, McCain instead requests Plaintiff call her “sales rep” and another employee of Slate, Ashlee King while waiting to be treated at the hospital. Desperate to get help and answers, Plaintiff attempts several times to call the people McCain requests but is unable to reach the rep or Ashlee King. McCain does not facilitate the information needed by Plaintiff, McCain instead gives directions like, “call her again,” multiple times while Plaintiff is frightened in the emergency room seeking treatment.
18. Finally, McCain informed Plaintiff that it only contains, “HA and stem cells that is it,”10. McCain follows this text with two more reflecting that her concern does not lie with her patient or what Plaintiff is suffering from as a result of McCain’s actions, when she texts, “WTF,”11 and “Don’t fucking tag slate or anything.”12
19. On or about September 21, 2024, Plaintiff was still experiencing swelling and tingling under her eyes, at the injection sites. McCain responds that this is a ‘freak accident.’13
20. On or about September 26, 2024, McCain responded to Plaintiff’s attempts to learn about what happened to her telling McCain, “I’m just really scared now.” McCain responds with, “Scared of what?” and “don’t get scared….I am on top of this…and this is an anomaly...BUT I’m
9 Text messages from Plaintiff to McCain on September 16, 2024.
10 Text messages from McCain to Plaintiff on September 16, 2024.
11 Text messages from McCain to Plaintiff on September 16, 2024.
12 Text messages from McCain to Plaintiff on September 16, 2024.
13 Text messages from McCain to Plaintiff on September 21, 2024.
not in any way crazy concerned."14 Plaintiff again requests more information regarding what exactly was in the injections. McCain responds, "It is literally HA serum and stem cells." 15
21. Plaintiff informs McCain that she is going to another doctor the following day due to the swelling becoming so extreme that her left eye is swollen shut and as a result had to cancel her photo shoot she had scheduled. McCain ignores the fact she is going to see a medical professional and responds by telling Plaintiff that she is calling in a stronger steroid with a longer duration and would like to see her so she can, "video with MD while I evaluate you."
22. On September 27, 2024, "Danielle" calls in a prescription for Plaintiff of Prednisone on behalf of Dr. Raines for Plaintiff.
23. Plaintiff expresses to McCain that when she spoke to McCain's "friend" the day before, she was advised that she had already had too many steroids. McCain dismissed Plaintiff's concern and stated that was her "FNP for Slate," and that she spoke with "the Doctor" who advised Plaintiff was on the "bare minimum" and that with her "reaction like this we need stronger dose and for a longer duration to be able to suppress your immune system….and with you last yesterday am, your body started to have a delayed allergic reaction."
24. After Plaintiff's appointment with a physician at urgent care, she advises McCain on the information from the physician. Plaintiff was warned that Plaintiff could go blind from the reaction to the exosome injections. McCain responds to Plaintiff that, "that lady should be fired." Again, McCain inserts herself in Plaintiff's medical care above physicians authorized to practice medicine in the State of Oklahoma.
25. On September 30th Plaintiff advises McCain that it is not getting any better and that she is going to have to make an appointment with a plastic surgeon and a dermatologist. Instead
of being supportive or advocating for Plaintiff to see medical professionals that can assist her, McCain responds with advising Plaintiff to, “give this some time...you will start getting all different opinions.”
26. Plaintiff responds to McCain that she would feel better if she could see the surgeon McCain has been consulting with in person and McCain responds with, “send me pics,” so she can send them to a plastic surgeon and an, ”MD.”
27. Nearly one month after the procedure performed by McCain, Plaintiff contacts Jeremy Tan, MD, with Dean McGee Eye Institute who informs Plaintiff she made need reconstructive surgery. When Plaintiff passes this information along to McCain, her response is, “I absolutely do not recommend surgery..this is crazy...”
28. Even after Plaintiff began treatment with Dr. Tan, McCain continued to attempt to insert herself in her medical care, including requesting copies of Plaintiff’s chart.
CAUSES OF ACTION
I. NEGLIGENCE/NEGLIGENCE PER SE
29. Plaintiff incorporates by reference the foregoing paragraphs as thought fully alleged herein.
30. Plaintiff suffered serious, permanent, and ongoing injuries as a result of the medical care and treatment which were rendered below the standard of care by Defendants, and by and through each of Defendants’ agents, servants, and/or employees.
31. Alexander R. Raines, M.D. is a physician practicing medicine in the State of Oklahoma, who represented to the public at large he was a duly licensed, competent medical doctor at all relevant times.
32. Jennifer Raelene Robinson is a Certified Nurse Practitioner, previously licensed in Oklahoma, and currently licensed in Connecticut, who represented to the public at large she was a duly licensed, competent nurse practitioner at all relevant times.
33. Alexander R. Raines, M.D., had a duty to act with ordinary and reasonable care and to use an accepted level of professional expertise in his practice as a physician in Oklahoma County, Oklahoma, or similar medical community, regarding Plaintiff’s treatment at all relevant times.
34. Robinson had a duty to act with ordinary and reasonable care and to use an accepted level of professional expertise in her practice as a nurse practitioner and not exceed or practice outside of licensed authority regarding Plaintiff’s treatment at all relevant times.
35. McCain is a Registered Nurse practicing in the State of Oklahoma, who represented to the Plaintiff and the public at large she was duly licensed, competent registered nurse at all relevant times.
36. McCain had a duty to act with ordinary and reasonable care and to use an accepted level of professional expertise in her practice as a Registered Nurse in Oklahoma County, Oklahoma, or similar medical community, regarding Plaintiff’s treatment at all relevant times.
37. At all relevant times, Defendant Slate Aesthetic Lounge, LLC was a medical spa licensed by the Oklahoma State Department of Health and represented to Plaintiff, and the public at large it was competently staffed medical facility and would provide appropriate health care and treatment to Plaintiff, and to the public at large by and through its members, associates, employees, representatives, agents, and/or ostensible agents.
38. At all relevant times, Defendant Slate Aesthetic Lounge, LLC held itself out as competent to provide various medical services including those hereinafter described, and expressly
or impliedly warrants persons to whom it has granted privileges and/or allows to perform surgical procedures are fully competent, qualified, and trained to provide the services they offer.
39. Defendants individually, and acting by and through their agents and employees, owed a duty to the Plaintiff to exercise ordinary care and attention required under all circumstances which was appropriate to Plaintiff’s mental and physical condition, and to supervise the care rendered to Plaintiff and ensure such care was consistent with established and recognized medical practice standards within the community and minimum professional standards of care.
40. Defendants individually, and acting by and through their agents and employees, breached the duties owed to Plaintiff of ordinary care and diligence exercised by reasonably prudent medical providers in the same or similar circumstances and were negligent in on or more particulars in connection with Plaintiff’s medical treatment. Such negligent acts and/or omissions of substandard care, taken separately or collectively, constitute a direct and proximate cause of Plaintiff’s injuries and damages.
41. McCain, Robinson, and Raines were employees and/or agents of Slate Aesthetic Lounge, LLC acting within the course and scope of their employment and/or contract with Slate Aesthetic Lounge.
42. Slate Aesthetic Lounge, LLC, Robinson, and Raines, are vicariously liable for McCains’ acts and omission under a respondeat superior theory.
43. Plaintiff suffered serious, permanent and ongoing injuries as a result of the negligent medical care and treatment rendered below the standard of care by Defendants, and by and through each of Defendants’ agents, servants, and/or employees thereby violating 59 O.S. §§ 491 and 508.
44. Plaintiff sustained injuries and damages as a result of Defendants’ conduct, which Defendants undertook without regard to the health and safety consequences to patients, including Plaintiff entrusted to Defendants’ care.
45. Such conduct was undertaken by Defendants without regard to the health and safety consequences to their patients, such as Plaintiff, entrusted to their care. Moreover, such conduct evidences such little regard for their duties of care, good faith, and fidelity owed to Plaintiff as to raise a reasonable belief that the acts and omissions by Defendants set forth above were the result of conscious, willful, malicious, and intentional conduct and/or with a reckless disregard for Plaintiff’s rights and welfare for which Plaintiff seeks exemplary or punitive damages in excess of $75,000.00.
II. NEGLIGENCE ENTRUSTMENT
46. Plaintiff incorporates by reference the foregoing paragraphs as though full alleged herein.
47. McCain was an employee and/or agent of Slate Aesthetic Lounge, LLC, Robinson, and/or Raines acting within the course and scope of her employment with Slate Aesthetic Lounge, LLC at all relevant times.
48. Dr. Alexander R. Raines, Jennifer Robinson, and Slate Aesthetic Lounge, LLC., negligently entrusted McCain, their agent and/or employee to inject substances into their patients.
49. Dr. Alexander R. Raines, Jennifer Robinson, and Slate Aesthetic Lounge, LLC allowed McCain to treat Plaintiff with the use of cosmetic procedure devices and or related substances without supervision.
50. Dr. Alexander R. Raines, Jennifer Robinson, Danielle McCain, and Slate knew, or should have known, the medical devices would be used improperly resulting in an unreasonable risk of injuries to patients, including Plaintiff.
51. Dr. Alexander R. Raines, Jennifer Robinson, and Slate knew or should have known due to McCain’s incompetence, inexperience, and lack of proper training, McCain was likely to use Pro-xo Exosomes in a manner involving unreasonable risk of injury to Plaintiff.
52. Plaintiff suffered severe, permanent, and disfiguring injuries and damages as a direct result of Raines, Robinson, and Slate entrusting McCain with non-FDA approved treatments and substances such as exosomes.
III. NEGLIGENCE HIRING, TRAINING, SUPERVISION & RETENTION
53. Plaintiff incorporates by reference the foregoing paragraphs as though fully alleged herein.
54. Raines, McCain, and Robinson were employees and/or agents of Slate and acting within the course and scope of their employment with Slate.
55. Raines, Robinson, and Slate failed to properly train their agent and/or employee, McCain’s use of exosomes.
56. Raines, Robinson, and Slate failed to properly supervise their agent and/or employee, McCain’s use of the exosomes.
57. Plaintiff suffered severe, permanent, and disfiguring injuries and damages as a direct and proximate result of Raines, Robinson, and Slate’s negligent hiring, training, and supervision or McCain.
IV. LACK OF INFORMED CONSENT
58. Plaintiff incorporates by reference the foregoing paragraphs as though fully alleged herein.
59. Defendants had a duty to inform or warn Plaintiff of the material risks associated with the exosome treatment.
60. Raines had a duty as a duly licensed physician to disclose to Plaintiff, all relevant information to enable Plaintiff to make an informed decision on whether to consent to or reject the proposed treatment, including any alternatives to the proposed treatment and the material risks of each.
61. Robinson as a duly licensed nurse practitioner had a duty to disclose to Plaintiff, all relevant information to enable Plaintiff to make an informed decision on whether to consent to or reject the proposed treatment, including any alternatives to the proposed treatment and the material risks of each.
62. Defendants failed to fully inform or warn Plaintiff of the material risks associated with the procedure.
63. Plaintiff was unaware of the nature of the treatment and the material risks involved in undergoing exosome treatment and procedures at the time McCain injected her.
64. Plaintiff would have chosen no treatment, or a different course of treatment had the alternatives and material risks of the procedure been made known to her prior to her receiving the injections. A very important note in the treatment she bartered for, PRP injections, is that they are derived from the patient’s own blood. Exosomes are not derived from the patient’s own blood, and adverse reactions are so common that the FDA has issued a, "MedWatch Adverse Event Reporting Program" on their official website.
65. It was not in Plaintiff's best interest for Defendants to withhold disclosure of the material risks associated with the exosome injections.
66. No emergency existed at the time Defendants performed the injections which required prompt treatment and during which Plaintiff was in no condition to decide for herself or which prevented Plaintiff from consenting to the exosome injections.
67. The material risks associated with the injections are not known to the general public and were not known by Plaintiff at the time the procedures were performed.
68. Plaintiff suffered severe, permanent, and disfiguring injuries and damages as a direct and proximate cause of Defendants’ non-disclosure of the material risks associated with the injections.
V. INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS
69. Plaintiff incorporates by reference the foregoing paragraphs as though fully alleged herein.
70. Defendants’ actions described herein were so extreme and outrageous as to go beyond all possible bounds of decency and would be considered atrocious and utterly intolerable in a civilized society.
71. Defendants intentionally or recklessly caused severe emotional distress to Plaintiff, beyond that which a reasonable person could be expected to endure.
72. Plaintiff suffered severe, permanent, and disfiguring injuries as a direct result of Defendants’ actions.
VI. FALSE REPRESENTATION
73. Plaintiff incorporates by reference the foregoing paragraphs as though fully alleged herein.
74. Defendants, by and through their employee/agent, McCain, made a material misrepresentation to Plaintiff, they knew was false by alleging the exosome treatment was safe to be injected in the skin.
75. Defendants knew the material representation was false and made it with the intention Plaintiff would act by agreeing to the procedure.
76. Plaintiff acted in reliance upon Defendants’ material misrepresentation.
77. Plaintiff suffered severe, permanent, and disfiguring injuries as a direct result of Defendants’ material misrepresentation.
VII. RES IPSA LOQUITOR
78. Plaintiff incorporates by reference the foregoing paragraphs as though fully alleged herein.
79. Plaintiff suffered severe and disfiguring injuries and damages, including permanent scarring, and disfigurement, as a result of the injections.
80. Plaintiff’s injuries and damages, including scarring, and disfigurement, were directly caused by the injection of exosomes which was solely within the control of the Defendants.
81. Plaintiff’s injuries are of a nature which do not ordinarily occur under the circumstances in the absence of negligence on the part of Defendants.
VIII. BATTERY
82. Plaintiff incorporates by reference the foregoing paragraphs as though fully alleged herein.
83. Defendants, acted with the intent of making a harmful and offensive contact with her person without the consent of Plaintiff.
84. Defendant’s actions resulted in harmful and offensive contact with Plaintiff, which were directly caused by the exosome injections which were both solely within the control of Defendants.
85. Plaintiff suffered severe, permanent, and disfiguring injuries as a direct result of Defendants’ actions.
DAMAGES
86. Plaintiff incorporates by reference the foregoing paragraphs as though fully alleged herein.
87. As a direct and proximate result of the wrongful conduct of the Defendants, Plaintiff sustained injuries and damages in excess of $75,000.00.
88. Plaintiff suffered the following damages as a proximate and direct result of Defendants’ acts and omissions alleged herein:
a. Medical expenses, past and future;
b. Physical pain and suffering, past and future;
c. Mental pain and suffering, past and future;
d. Permanent impairment;
e. Disfigurement; and
f. Other damages to be set forth after discovery is concluded.
Defendants’ conduct was undertaken with such little regard for their duties of care, good faith, and fidelity owed to Plaintiff as to raise a reasonable belief Defendants’ act and omissions were the result of conscious, willful, malicious, and intentional conduct and/or with a reckless disregard for Plaintiff’s rights and welfare for which Plaintiff seeks exemplary or punitive damages in excess of $75,000.00.
WHEREFORE, premises considered, Plaintiff pray for an award of actual and punitive damages in excess of $75,000.00 against Defendants Slate, McCain, Robinson, and Raines, costs, attorneys fees, interest and other relief this Court deems just and proper.
Respectfully submitted,
[handwritten signature]
Shawn D. Fulkerson, OBA #14484
Mace M. Robinson, OBA #35724
Fulkerson & Fulkerson, PC
10444 Greenbrier Place, Suite A
Oklahoma City, Oklahoma 73159
Telephone: (405) 691-4949
Facsimile: (405) 691-4595
[email protected]
Attorneys for Plaintiff
ATTORNEY LIEN CLAIMED
JURY TRIAL DEMANDED
VERIFICATION
STATE OF OKLAHOMA )
COUNTY OF CLEVELAND ) ss.
I, Kelly Brown, being of lawful age and first duly sworn, upon oath do state:
That I have read the above and foregoing Petition, that I am familiar with the contents thereof, and that the statements contained therein are true and correct to the best of my knowledge and belief.
Kelly Brown
Subscribed and sworn to before me this 12th day of December, 2024.
Notary Public
My commission expires:
_____________________
My commission number:
_____________________
