MEDICAL CLAIM. DAMAGES FOR TATTOO REMOVAL.
Among the liabilities arising from healthcare, we find the contractual liability of those who, through a dermatological or aesthetic medicine clinic, commit to delivering a specific result.
We are talking about what is known as "satisfactory" healthcare. In contrast to "curative" healthcare, we have "satisfactory" healthcare.
VOLUNTARY OR SATISFACTORY MEDICINE VERSUS NECESSARY MEDICINE.
The distinction between so-called voluntary or palliative medicine and necessary or therapeutic medicine has implications for the physician’s obligation arising from the provision of lex artis ad hoc, to obtain informed consent from their patients.
In this regard, case law has established stricter standards for cases involving elective or cosmetic medical procedures. These include procedures such as cosmetic enhancements, birth control, the insertion of contraceptive devices, dental treatments, and hair transplants, among others.
This contrasts with necessary, palliative, or therapeutic medicine, which focuses on maintaining or restoring the health of a sick body. The goal is to prevent economic interests from taking precedence through the exaggeration of expectations and the downplaying of the risks associated with any invasive procedure.
CONSTRUCTION CONTRACT
In these cases, the person enters into a contract with the clinic itself, not with any doctor or healthcare professional working at the clinic, thereby establishing a contractual relationship for the provision of services under which the clinic guarantees a specific outcome.
Under Article 1,544 of the Civil Code, in a contract for the performance of work, the doctor or clinic would commit to the client to perform a task or service in exchange for payment; thus, the achievement of an expected result is required. (…) Liability arises when the agreed-upon result is not achieved, since a contract for work is a bilateral contract with reciprocal obligations in which, in exchange for the client’s payment of the price, there is a corresponding obligation to deliver the work.
STATEMENT OF THE CASE
In the case at hand, our client hired a clinic in Alicante to perform an advanced cosmetic procedure involving the removal, using intense pulsed light (IPL) technology, of a tattoo she had had on her arm for some time.
This is a technique widely used in dermatological or aesthetic medicine clinics for skin treatments, including the treatment of pigmented lesions and other conditions.
It should be noted that this person had been going to another clinic where they had already received several successful sessions, but since they couldn’t afford it, they decided to search online for another clinic, found this one, and reached an agreement that they would receive one session for a small fee—all so they could verify the clinic’s quality of care—and, once satisfied, book more sessions at a better price.
After the first session, our client began to experience discomfort that same day, which worsened the following day—she even developed a fever and pain—so after 48 hours, she went to the health center, where she was diagnosed with a second-degree burn, although it was later determined to be a third-degree burn.
Given the severity of the burn, he was instructed to go to the hospital the next day so that the burn could be treated in the emergency room and he could receive the necessary care for 10 days.
She has been receiving medical care for 78 days and has stabilized, though she has been left with aftereffects—specifically, scarring—that cause significant cosmetic damage.
Currently, she has a complication that she will not be able to avoid; instead, she will undergo regenerative treatment to alleviate her condition, since the damage is significant due to the location on her affected arm—the area where the injury is located is very visible.
This case may seem of little relevance to the reader, since, unfortunately, damages resulting from medical malpractice are not uncommon. However, we wish to include it on our website to inform readers and emphasize that the fundamental basis of our legal claim is the inadequate information provided to our client. Furthermore, the informed consent she received clearly demonstrated this lack of information. Most importantly, these injuries were never considered as possible consequences of that action.
THE DUTY TO DISCLOSE INFORMATION
With regard to the duty to inform—which is the essential premise of informed consent—we will outline some legal points due to their importance.
Article 4 of Law 41/2002, of November 14, the basic law governing patient autonomy and rights and obligations regarding clinical information and documentation, establishes that the duty to inform is a prerequisite for informed consent. This article states that «patients have the right to know, in connection with any medical procedure, all available information regarding that procedure, except in cases expressly provided for by law.».
With regard to compensatory medicine, given its unique nature, legal doctrine has held that greater rigor is required in the provision of information.
Along the same lines, Article 2.6 of the same Law 41/2002, dated November 14, establishes as a basic principle that every healthcare professional involved in the provision of care is obligated not only to perform their procedures correctly, but also to fulfill their duties regarding patient information and clinical documentation, and to respect the decisions made freely and voluntarily by the patient.
INFORMED CONSENT
The duty to inform is a prerequisite for informed consent, which stems from the principle of the patient’s autonomy of will—understood as the patient’s right to determine the treatments that affect their life and physical integrity, which are personal decisions that belong exclusively to them.
Only when the patient, having been provided with sufficient information and possessing an adequate capacity for understanding, freely makes a decision regarding a medical procedure can it be concluded that the patient wants the treatment that is to be provided.
In short, the withholding of information amounts to the denial of the right to consent.
The very Law 41/2002 This is confirmed both in Article 2.2—which states that consent, which must be obtained after the patient receives information, must be given in writing—and in Article 2.3, which states that the patient or user has the right to decide freely, after receiving adequate information, among the available clinical options. With regard to the right to free choice, the patient must therefore be made aware of each and every risk and consequence associated with the surgical procedure about which information is being requested.
Therefore, in satisfactory medical care, the factual content of the information must be objective, truthful, complete, and accessible. This includes the possibility of the intervention failing—that is, the prognosis regarding the likelihood of the outcome. Furthermore, it must cover any sequelae, risks, complications, or adverse outcomes that may occur—whether permanent or temporary—regardless of their frequency. This conclusion has been repeatedly upheld by our case law.
Therefore, patients must be warned of the possibility of such events, even if they are remote, unlikely, or occur only exceptionally—and this is all the more important if the foreseeable event is not the failure to achieve the desired result but rather a severe complication or a deterioration in the aesthetic outcome.
Information about foreseeable risks is independent of their probability—or percentage of cases—and the only risks excluded are those unknown to medical science at the time of the procedure. The importance of the duty to inform lies, in turn, in informed consent; thus, consent cannot be given without this information.
DISPROPORTIONATE DAMAGES
A medical professional's liability is one of means, and as such, he or she cannot guarantee a specific outcome..
The opposite would entail setting aside the subjective concept of fault—which is inherent to our system—in order to impose a form of objective liability derived solely from the outcome of the medical procedure. This would be done regardless of any other assessment of fault and causation, and regardless of proof that the medical treatment was in accordance with the lex artis. It must be borne in mind that it is scientifically recognized that a guaranteed outcome is not possible, since not all individuals react in the same way.
The theory of harm disproportionate or enormous (disproportionate harm is harm that is neither foreseeable nor explainable within the scope of the medical professional’s practice and that requires the medical professional to prove the circumstances under which it occurred, based on the principle of ease and proximity of proof). The medical professional is required to provide a coherent explanation for the significant discrepancy between the initial risk inherent in the medical procedure and the resulting outcome; thus, the absence or failure to provide such an explanation may lead to liability, giving rise to a presumption of negligence.
An unintended or unsatisfactory outcome that falls within the scope of the typical risks associated with cosmetic surgery—risks that were duly explained to the patient and to which she gave her informed consent—cannot be classified as disproportionate harm.
It is clear that this scenario does not apply in the present case; therefore, we consider that the outcome—far from being understood as the result of a therapeutic or curative act—appears rather to be a harmful and damaging act resulting from negligence.
Carlos Baño Law Firm
We have obtained an expert report that establishes a cause-and-effect relationship between the treatment performed at the clinic and the severe burns on our client’s arm, where the treatment was administered.
Another basis for liability in this case—which complements the previous one—stems from the existence of disproportionate damages, which could never be justified by the practice of medicine; this alone would constitute sufficient grounds for the clinic’s liability.
Finally, we also consider that the contract with the clinic is a contract for work and not a contract for the provision of services—a contract under which our client was guaranteed a specific result and for which she paid the amount requested, and since the result obtained is not what was agreed upon, there would also be a clear breach of contract by the clinic under this agreement.
Consequently, we believe there are three areas in which the clinic bears liability; one of them, as we have stated, is breach of contract; a second is the failure to provide adequate information and, consequently, the absence of informed consent; and finally, the existence of disproportionate harm that is medically unjustifiable, which must inevitably be identified as medical malpractice.
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