- July 15, 2015
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Damages for negligently performed laser tattoo removal where a person has signed a consent form identifying the very harm he suffered as a possible known consequence
I recently concluded a claim for my client WB who had laser tattoo removal performed at a private clinic based on the premises of a well-known general hospital. He had gone to the clinic for the removal of the remnants of an old tattoo on his right arm.
The treatment was performed without any kind of patch test being carried out beforehand. The treatment was performed using a Lambda Q-switched Ruby Laser. The treatment records obtained from the clinic note the energy level used was 40 J/CM². During the course of the case I wrote to the clinic asking them to confirm that this was indeed the level used and received written confirmation that it was.
My client told me that his skin was “sparking” during the treatment, but the technician simply wiped his skin and carried on. She said to him that she had turned the power on full in order to eliminate the tattoo in one sitting. Afterwards he noticed that he was suffering from painful blistering.
I was very pleased to learn that this clinic had public liability insurance. I have written before about the lack of experience (and lack of insurance) of some of these ‘technicians’.
The clinic’s records contained a consent form, signed by my client and entitled “Ruby Laser Consent Form”. The form warned of complications including ‘blistering after treatment, depigmentation, permanent scarring’. It also said that treatment would only go ahead if the client and the technician were both satisfied with the results of the patch test.
I instructed a consultant dermatologist and laser specialist to review the records and to prepare report. The expert confirmed that whilst the Ruby laser was the correct equipment to use for laser tattoo removal the power used should have been in the region of 6-10 J/cm² and that if indeed the treatment had been performed at 40 J/cm², the patient would suffer from blistering and persistent pigmentation (as indeed WB had).
He further explained that it would not necessarily be essential to undertake a patch test in all cases but of course if the patch test had been done at the same level at which the treatment was performed it is likely that the blistering and hyperpigmentation would have been noted there and then.
I obtained a further report from a consultant plastic surgeon who examined my client and prepared a report looking at his current condition and future prognosis. He noted an extensive area of altered skin colour along the lines of the treated tattoo and the adjacent skin. The areas were in the shape of overlapping circles, consistent with the spot pattern of treatment from a laser. There was no palpable scarring but residual black pigmentation from the original tattoo.
Armed with this expert evidence I drafted a formal letter of claim to the clinic setting out the allegations of negligence and detailing not only the pain and suffering my client had endured but also the further treatment he needed as a result of the negligent treatment.
No formal response to the letter of claim was ever received. After some time the clinic’s insurers made an offer to my client to settle his claim for the sum of £2,500 – this offer was specified to include all of his legal costs, experts’ fees and a sum to compensate him!
I discussed the clinic’s ridiculously low offer with my client and we decided to return to the insurers with a counter-proposal. I continued to chase for a formal letter of response but this was never forthcoming.
Just as I was advising my client to issue and serve court proceedings to progress the matter the clinic’s insurers had a change of case handler – the new case handler, it seemed to me, had a much better understanding of the potential value of the claim and very quickly made a much more sensible offer that my client was pleased to accept.
When my client first discussed his case with me he was very concerned that his claim would not be successful because he had signed a consent form detailing the potential risks and that some of those recognised risks were exactly the injury he had suffered.
I explained to him that by virtue of section 2 of the Unfair Contract Terms Act 1977.
(1) A person cannot by reference to any contract term or to a notice given to persons generally or to particular persons exclude or restrict his liability for death or personal injury resulting from negligence.
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