Appeal court upholds tattoo removal claim due too much laser

Tattoo removal is a billion-dollar industry and will grow bigger as a result of the wide availability of laser removal sparks an uptick in tattoo regret syndrome.

The painful treatment for removal has remained largely the same for decades and has varying degrees of success.

In June 2017, Zeinab Daemolzekr attended a Cosmetic Skin Doctors (CDC) clinic for treatment to remove tattoos from each of her forearms.

She had an initial consultation with Dr Galina Shvetsova – who recommended six treatment sessions – and explained the process to her patient.

The ink in a tattoo is located in the dermis – under the outer layer of the skin or epidermis – and consists of particles too large for white blood to remove naturally, making a tattoo permanent.

Laser treatment aims to remove the ink from the dermis without damaging the epidermis by causing the ink particles to become smaller so that the body’s macrophages (white blood cells) can remove them.

After “numbing cream” was applied a local anaesthetic was injected at numerous points of both tattoos before the laser treatment was administered in a separate room by one of the clinics several nurses, Nurse Nicola Clow.

The treatment was however far more painful than what Daemolzekr had experienced during an earlier session at another clinic.

Nurse Clow responded pain by administering a Lignocaine injection for anaesthetic relief and said – according to Daemolzekr – “we will turn it up so that there will be less sessions” needed to remove the tattoo.

After the treatment, the nurse bandaged her arms. Once the anaesthetic started to wear off they felt like they were “on fire” and she was in a lot of pain.

Daemolzekr returned to the clinic and to her GP over the next week complaining of inflammation and infection to the wound.

General Practitioner Sidra Akhtar recorded that she had ‘second degree burns post tattoo removal with laser’, and ‘should see a plastic surgeon’. She was admitted to the Monash Medical Centre where good quality photographs were taken of the burns.

Due to financial constraints she did not consult a plastic surgeon until February 2019 when it was noted that “severe scarring as a result of the laser as a result of the laser tattoo removal”.

In the inevitable injury compensation contest, Daemolzekr recruited cosmetic and laser medicine specialist Adam Rish whose testimony was that the scarring and full thickness burns to the forearms were a result of “inappropriately high fluence”.

He explained that laser treatment applied at too high a fluence – ie energy applied per cm of skin surface – causes particles to flicker off, leaving a visible hole or holes in the treated area.

“The very fact of a burn speaks of excessive fluence,” he observed. “The Hertz will make the laser faster but will not necessarily damage the dermis. The excessive fluence is really the reason for damage”.

Evidence was led on behalf of the clinic that the laser machine was set for a “fluence” of 4.2 joules/cm².

According to Dr Rish the laser at that setting “would be highly unlikely to have caused burns or scarring” as it in fact did.

Asked why there was no sign of a full thickness burn when she returned to the CDC clinic three days after her treatment, Dr Rish explained: “It’s evolving. It’s underneath the skin. There is still an intact layer of dead tissue on top of the wound, so it hasn’t sloughed off yet”.

One of the features of Daemolzekr’s post-procedure presentation was that the ink had disappeared.

While Rish explained that was a consequence of the damage to the dermis caused by the too high fluence, his colleague Ian Holten thought that – and the scarring – could only have been the result of subsequent laser treatment or a separate trauma.

The appeal judges upheld the primary judge’s preference for the analysis provided by Dr Rish given his experience in having conducted 6000 or so of such procedures himself and the logic of his conclusions.

Dr Holton on the other hand was “not an impartial expert” and “appeared to assume it was his function to attribute legal responsibility”.

“His Honour’s findings were clearly open to his Honour, and certainly not glaringly improbable,” observed their Honours in a joint judgement.

They refused to leave to appeal and Ms Daemolzekr get to keep the damages assessed in the County Court.

CDC Clinics v Daemolzekr [2022] VSCA 54 Niall, Kennedy and Macaulay JJA, 7 April 2022

source https://cartercapner.com.au/blog/appeal-court-upholds-tattoo-removal-claim-due-too-much-laser/