Can I Sue for My Tattoo Removal Injury?
Laser tattoo removal is expensive and painful. When you agree to have a tattoo removed, you do so under the impression that the tattoo will be removed by a professional with sufficient training and skill and that they will carry out the process safely. Unfortunately, this is not always the case. If the tattoo removal you received did not conform to strict health and safety guidelines, and you were injured as a result, you may be entitled to compensation for your injury. Successful tattoo removal injury claims possess three essential components: liability, damages, and collectability.
Liability
Liability means that whoever performed the tattoo removal owed you a duty of care, breached their duty of care, and that you were injured as a result. A duty of care is a legal duty to protect others from the unreasonable risk of harm. Tattoo removal providers have a duty to screen and diagnose any pre-existing medical conditions, such as skin cancer or skin infections, which would make laser tattoo removal a health risk. Failing to identify whether a patient’s medical condition makes laser tattoo removal risky endangers the patient’s health and therefore makes the provider liable.
People without professional medical licensing should not perform laser tattoo removal under any circumstances. Laser tattoo removal may only be performed by a doctor, or by a registered nurse or physician’s assistant under a doctor’s supervision. Professional medical skills are necessary because in some cases there are skin conditions, such as tumors, which must be evaluated before treatment. Performing tattoo removal without sufficient medical training constitutes unlicensed practice of medicine and makes the tattoo removal provider liable for any injuries which occur as a result.
Tattoo removal providers have a duty to operate the laser properly. Even with professional medical training, it is still possible for the operator to use the laser improperly. The wrong choice of settings can cause skin damage and long-term side effects. Settings that work well on one patient may not work well on another patient. Treating a tattoo with too much intensity on any one occasion can cause permanent damage, such as scarring. It is also possible to cause cumulative damage, such as by scheduling repeated treatments before the skin has healed.
They also have a duty to provide proper aftercare instructions. The person who performs the tattoo removal should instruct patients on how to treat the skin afterwards, and warn patients about potential health risks after the tattoo removal procedure. Failing to warn patients of health risks after the tattoo removal puts them in danger of developing serious skin infections and side effects.
Failing to diagnose pre-existing medical conditions, using the laser incorrectly, and failing to provide proper aftercare instructions are all breaches of duty which give rise to liability for tattoo removal providers.
James S. Iagmin Esq.
Damages
Damages are the measure of harm you suffered as a result of the failed tattoo removal. Tattoo removal injuries often include burns (including 2nd and 3rd degree burns), destruction of tissues beneath the skin, discoloration of skin, scars, blistering, bruising, crusting and bleeding. Other common tattoo removal injuries include allergic reactions, eye injuries (when lasers are used improperly near the eyes), and complications from excessive application of anesthesia. These conditions are typically painful and can result in serious infections if left untreated. Burn injuries are among the most painful injuries humans can sustain. Seek medical treatment immediately if you were injured during a laser tattoo removal, and continue medical treatment as advised by your doctor. You may be entitled to compensation for your pain and suffering, past and future medical expenses, emotional distress, lost earnings and other damages.
Collectability
Collectability means that whoever who performed the failed tattoo removal has sufficient insurance or other assets to cover your damages. If you have the procedure performed by a doctor, such as a licensed dermatologist or cosmetic surgeon, then any injuries that occur are likely covered by the doctor or clinic’s medical malpractice insurance. If you were not treated by a doctor, your injuries still may be covered by the business operator’s general liability insurance.
It is best to talk to an experienced personal injury lawyer before you talk to an insurance company. The insurance company’s goal is not to offer you a fair settlement. Their goal is to settle your case as quickly as possible, for as little money as possible. Insurance companies will do everything in their power to limit or deny coverage. From our experience, you will need an experienced lawyer to receive anything close to the full value of your case. If you have already talked to an insurance company, it is not too late to talk to an experienced personal injury lawyer.
Unlicensed Practice of Medicine is a Crime
California has strict laws about who can perform laser tattoo removal. Unlicensed practice of medicine is a crime. An unlicensed person who performs laser tattoo removal may be charged for the crime of unlicensed practice of medicine and face jail time.
Who Can Perform Laser Tattoo Removal?
Laser tattoo removal may only be done by a licensed physician. Physician assistants and registered nurses may perform laser tattoo removal, but only under a physician’s supervision. Unlicensed medical assistants, licensed vocational nurses, cosmetologists, electrologists, or estheticians may not legally perform laser tattoo removal under any circumstances.
If a licensed physician helps an unlicensed person perform a laser tattoo removal, the physician could face a number of sanctions including losing their license and facing criminal prosecution. Physicians are not permitted to delegate laser services to unlicensed employees.
Nonetheless, many laser centers allow lasers to be fired by unlicensed persons such as cosmetologists, estheticians and laser technicians. One study found that 40% of laser procedures which resulted in a lawsuit were performed by non-physicians.
Who Can Own a Laser Treatment Facility?
To offer laser tattoo removal services, the treatment facility must be owned by a physician. This means the business must be a physician-owned medical practice or a professional medical corporation with a physician being the majority shareholder.
Layperson owned “medi-spas” may not offer laser tattoo removal services, and doing so constitutes the unlicensed practice of medicine. A physician may not serve as a ”medical director” for such a business, and doing so constitutes aiding and abetting the unlicensed practice of medicine. Only businesses owned and controlled by doctors may perform laser tattoo removal. A partnership between a layperson and a physician to own a laser tattoo removal business is illegal.
Many tattoo shops and medical spas offer laser tattoo removal that is not performed or supervised by a physician. This practice is illegal and constitutes the unlicensed practice of medicine in California.
What To Do Next
If you were injured during a tattoo removal, seek medical attention for your injuries and document your injuries with photographs. Get your paperwork together, including receipts, names of witnesses, medical records, photos prior to injury, and detailed facts about the incident. Contact an experienced personal injury lawyer without delay. Your claim must be filed within a certain time after the date of injury or it will be barred by the statute of limitations. In California, medical malpractice claims have a different statute of limitations than negligence claims. The statute of limitations for negligence claims is two years from the date of the injury. However, medical malpractice claims must be filed within one year of the patient discovering the injury or within three years of the date of the injury – whichever comes first. These are relatively short time frames. As such, we suggest contacting a proven personal injury lawyer as soon as possible after the incident.
Sources
Judicial Council of California Civil Jury Instructions – CACI No. 401. Basic Standard of Care
Medical Board of California – Frequently Asked Questions
James S. Iagmin Practice Areas – Burn Injuries
California Legislative Information – Business and Professions Code Section 2052
California Legislative Information – Code of Civil Procedure Section 340.5
California Legislative Information – Code of Civil Procedure Section 335.1