Professional Negligence: Burns When Trying to Remove Tattoo

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Professional Negligence: Burns When Trying to Remove Tattoo

The case we want to highlight in this article is not uncommon. We refer to the damages, usually burns, that occur on the skin when applying laser treatment where there is a tattoo that one wants to remove. Our main advice in this case, before putting yourself in the hands of any center that advertises itself, is to have the center’s qualification and experience in the practice of said method accredited. Although it may seem unnecessary, it is indeed necessary due to the damage that improper laser application can cause to the human body. Thus, the application of this method requires a minimum knowledge of the use of the equipment.

The Specific Case

In the specific case we analyze, our client went to an aesthetic clinic. Suddenly, a phototherapy treatment was performed on her using an IPL/E-light device to remove a tattoo from her arm. Our client was attended by an employee of the center who carried out this method. However, a few hours later, she began to feel discomfort. As the pain increased, she had to go to the hospital two days later. Not only did the pain persist, but the arm seemed increasingly burned.

As a result of emergency care, she was diagnosed with cellulitis on the skin after laser treatment to remove the tattoo. Also, she had suppuration and cellulitis about 8 centimeters in diameter. In other words, a severe burn.

Informed Consent

The informed consent she signed included possible complications inherent in the use of pulsed light and E-light technology. These include: redness, slight changes in pigmentation, mild erythema, blistering of the skin, and mild internal tingling.

The main diagnosis was an infection of a skin wound caused by a burn in the laser treatment area. This had nothing to do with the possible complications mentioned in the informed consent. The patient’s condition went far beyond the complications mentioned in the informed consent.

Informed consent is an essential element of lex artis. Its importance is such that it is part of the medical practice, as our Supreme Court has repeatedly declared. It is an ethical and legally required obligation for doctors.

As in the present case, jurisprudence has established that information must be much more demanding in cases of voluntary medicine, as in this case. In voluntary medicine, the patient has more freedom to opt for rejection due to the lack of necessity or urgency, which is not the case in emergency care.

To such an extent, the effects arising from the lack of information in voluntary or satisfying medicine in these cases make it essential for the medical professional to prove that there has been no negligence on their part, which is much more difficult in these cases of obvious damages.

Greater rigor is required in forming informed consent in cases of voluntary medicine.

Medical Liability

Medical liability is subjective or due to fault, not objective or due to risk. The patient must prove the causal link between action or omission and the harmful result. It must be fully proven in the process that the medical or surgical act in question was performed with a breach of or non-adherence to the medical or scientific techniques required for it.

The medical professional’s liability is of means, and as such, cannot guarantee a specific result. The obligation of practitioners in both voluntary or satisfying medicine and necessary or curative medicine is of means and not results.

It is the expert opinion of a medical expert in the field that can shed light on whether the medical civil liability claimed by the patient exists. The Judge or Court will be the one to assess these expert opinions and justify the judgment based on how it understands whether or not medical civil liability existed.

Disproportionate Damage

Another cause of imputation we consider is the existence of disproportionate damage. It is understood as such when the damage is neither foreseen nor explainable in the sphere of professional medical action. In this case, a coherent explanation is required as to why there is a significant discrepancy between the initial risk involved in the medical activity and the resulting consequence. The absence or omission of an explanation can determine imputation, creating or giving rise to a presumption of negligence.

In this case, we could almost say it affects the causal attribution to the doctor and a blameworthy reproach, altering the general rules on medical civil liability concerning the burden of proof. Disproportionate damage is that which is neither foreseen nor explainable in the sphere of professional activity and requires the medical professional to prove the circumstances under which it occurred due to the principle of ease and proximity of proof.

After several months of medical assistance and treatment, she still has many discomforts and the burn remains on her arm. Sessions for skin regeneration may be needed in the future.

Clinic’s Liability: Contractual Liability

When the case was brought to us by our client, the first thing we did was refer her to an expert who unequivocally established the existence of malpractice. The clinic was requested to assume the repair of the damage, but there has been no response. This left us no choice but to claim damages of a contractual nature for the high amount.

Regarding the action to be taken, there are always several options in cases of professional negligence. In this firm, based on experience, we do not promote lawsuits against all participants or all possible responsible parties, as this brings many complications to the judicial process.

We always adhere to the primary responsibility, and in this case, we have chosen the primary responsibility of the clinic and its responsible party. Our client did not go to a professional but to a clinic, and it was to this clinic that she paid her fees. This is without prejudice to the person within the clinic who performed the work, as this was not the main factor, but the clinic itself.

As a consequence, we have opted for contractual liability with the consequences for both the claimant and the defendant that this entails. The clinic’s liability is determined by Article 1903 of the Civil Code. This establishes the liability of the owners of an establishment or business for the damages caused by their employees in the service or on the occasion of their duties.

Conclusions on Professional Negligence

In our opinion, there are several reasons why our claim should succeed and the clinic and its responsible party should be held liable:

Firstly, in the informed consent, it was never mentioned that there was a risk of burns like the ones she has. This is evident because the appearance of these burns cannot be an abnormal consequence of the medical procedure performed.
Secondly, based on the above, it is evident that with such significant damage as burns, the result of the care provided has been disproportionate. As we have reasoned in the previous points of this article.
Lastly, even if it is non-curative medicine, it is evident that although results cannot be guaranteed, what cannot happen is the production of such significant medical damages as in this case. A burn is not foreseen as a normal consequence of this practice.

Therefore, we expect a condemnatory judgment. The professional negligence of the center we are suing through the person who provided the care is evident. We deeply regret that no one from the clinic has wanted to address the issue with us. It is a very clear case where they should assume the compensation for the existence of medical malpractice without any problem.