Medical Malpractice: Burns Sustained While Attempting to Remove a Tattoo
The case we want to discuss in this article is not uncommon. We are referring to the damage, usually burns, that occur on the skin when laser treatment is applied to a tattoo that is to be removed. Our main advice in this case, before entrusting yourself to any clinic that advertises its services, is to verify that the clinic is certified and has experience in performing this procedure. Although it might not seem necessary, it is essential given the damage that improper laser application can cause to the human body. That is why using this method requires a basic understanding of how to operate the equipment.
The Specific Case
In the specific case we are analyzing, our client visited a cosmetic clinic. Right off the bat, the clinic agreed to perform a phototherapy treatment using IPL/E-light equipment to remove a tattoo from her arm. Our client entrusted herself to a staff member at the clinic who performed the treatment, but a few hours later, she began to experience discomfort. As the pain worsened, she had to go to the hospital two days later. Not only did the pain persist, but her arm appeared to be increasingly burned.
As a result of her visit to the emergency room, she was diagnosed with cellulitis following laser treatment to remove a tattoo. She also had an oozing wound and cellulitis measuring about 8 centimeters in diameter. In other words, a severe burn.
Informed Consent
The informed consent form you were asked to sign outlined possible complications associated with the use of pulsed light and E-light technology. We listed these very briefly as follows: redness, minor changes in pigmentation, mild erythema, the appearance of blisters on the skin, and a mild internal tingling sensation.
The primary diagnosis was a skin wound infection caused by a burn in the area treated with laser therapy. This has nothing to do with the possible complications listed in the informed consent form. The patient’s condition goes far beyond the complications mentioned in the informed consent form.
Informed consent is an essential element of lex artis. Its importance is such that it forms part of the provision of medical care, as our Supreme Court has repeatedly held. It constitutes an ethical and legally binding requirement for physicians.
As in the present case, case law has established that the obligation to provide information must be much stricter in cases of voluntary medical treatment, such as this one. In elective medical procedures, the patient has greater freedom to choose to refuse treatment, given the lack of necessity or urgency, which is not the case in emergency care.
Given the extent of the consequences resulting from a lack of information in elective or elective-type medical procedures in these situations, it is essential that the medical professional be able to prove that there was no negligence on their part, which is much more difficult in these cases of obvious harm.
Greater rigor is required in the process of obtaining informed consent in cases of voluntary medical treatment.
Medical Liability
Medical liability is subjective (based on fault) rather than objective (based on risk). It is up to the patient to prove the causal link between the act or omission and the harmful result. It must be fully established during the proceedings that the medical or surgical procedure in question was performed in violation of, or without adherence to, the medical or scientific standards required for such a procedure.
A medical professional’s responsibility is one of means, and as such, he or she cannot guarantee a specific outcome. The obligation of physicians—whether in so-called voluntary or palliative medicine, or in necessary or curative medicine—is one of means, not of results.
It is the expert testimony of a medical expert in the field that can shed light on whether the medical malpractice alleged by the patient has occurred. The judge or court must evaluate this expert testimony and base the ruling on its determination of whether or not medical malpractice occurred.
Disproportionate Damage
Another basis for liability that we consider is the existence of disproportionate harm. This is understood to mean harm that is neither foreseeable nor explainable within the scope of professional medical practice. In this scenario, a coherent explanation is required as to why there is a significant discrepancy between the initial risk inherent in the medical procedure and the resulting outcome. The absence or omission of such an explanation may lead to liability, giving rise to a presumption of negligence.
In this scenario, we could almost say that it affects the attribution of causation to the physician and the attribution of fault, thereby altering the general rules on medical malpractice regarding the burden of proof. Disproportionate harm is harm that is neither foreseeable nor explainable within the scope of the physician’s professional practice. It requires the physician to prove the circumstances under which it occurred, based on the principle of ease and proximity of proof.
After several months of medical care and treatment, he is still experiencing significant discomfort and the burn on his arm remains. It is anticipated that skin regeneration sessions may be necessary in the future.
Clinic Liability: Contractual Liability
When our client brought this case to our attention, the first thing we did was refer her to an expert witness. The expert established, beyond a shadow of a doubt, that malpractice had occurred. Although we demanded that the clinic compensate her for the damages, we have received no response. Given the substantial amount involved, we have had no choice but to file a claim for contractual damages.
When it comes to professional negligence cases, there are always several options for how to proceed. Based on our experience, this firm does not file lawsuits against all parties involved or against all potentially liable parties, as this leads to many complications in the legal proceedings.
We always focus on primary liability, and in this case, we have determined that the primary liability lies with the clinic and its director. Our client did not go to a professional but to a clinic, and it was to the clinic that she paid her fees. This is without prejudice to the person within the clinic who performed the work, as that person was not the primary factor; rather, it was the clinic.
Consequently, we have opted for contractual liability, with all the implications that entails for both the plaintiff and the defendant. The clinic’s liability is determined by Article 1903 of the Civil Code. This article establishes the liability of the owners of an establishment or business for damages caused by their employees in the course of their duties or while performing their functions.
Conclusions on Professional Negligence
In our view, there are several grounds on which our claim could be successful and the clinic and its manager could be held liable:
- First of all, the informed consent form never mentioned that there was a risk of burns like the ones you have. This is evident because the occurrence of these burns cannot be an abnormal consequence of the medical procedure performed.
- Second, and based on the foregoing, it is clear that, given the serious nature of the burns, the outcome of the medical care provided was disproportionate. As we have argued in the previous sections of this article.
- On the other hand, and finally, even though this is a form of non-curative medicine, it is clear that while results cannot be guaranteed, it is certainly not possible to cause medical harm as severe as that seen in this case. A burn is not considered a normal consequence of this practice.
Therefore, we expect a guilty verdict. The professional negligence of the clinic we are suing—as represented by the person who provided said care—is evident. We deeply regret that no one from that clinic has been willing to discuss the matter with us. This is a very clear-cut case, and they should have no problem accepting liability for compensation due to medical malpractice.
Carlos Baño Law Firm
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