The composition of tattoos varies widely. Even when tattoo removal is done correctly, tattoo pigment may not respond predictably to laser treatment.1 The type of laser to use, the power setting, the number of treatment sessions and other issues vary from patient to patient based on a variety of patient and tattoo characteristics. The following are some of the patient/tattoo characteristics that should be evaluated: Fitzpatrick skin type, tattoo ink colors, whether the tattoo was done by a professional or amateur, and the location and age of the tattoo. Ensuring realistic expectations through proper patient education and informed consent is a critical aspect of tattoo removal — one retrospective study showed that less than two percent of tattoos could be entirely cleared.2
Allegation
Negligent laser tattoo removal resulted in extensive burning and permanent scarring.
Case File
In May 2014, a family physician (FP) evaluated a 35-year-old male for removal of a tattoo of his former girlfriend’s name on the left side of his chest. During the initial consultation, the patient expressed his desire to have the tattoo removed as quickly as possible, because he had just proposed to a different woman, and they planned to be married in six months. He had chosen the FP based on the FP’s Internet site, which touted his 10 years of experience with laser tattoo removal and contained a variety of photographs showing excellent tattoo-removal results.
During the consultation, the FP discussed the cost, the number of treatments needed and the time involved. He assumed the removal would not be complicated, because it was a nonprofessional, black-blue tattoo. In his opinion, black-blue pigment was relatively easy to remove; and nonprofessional tattoos tended to be less deeply injected than professional tattoos, thus more easily removed. The FP stated during litigation that it was his practice to describe the risks of tattoo removal as infection, skin pigmentation changes, swelling, blistering, pain, scarring that fades with time, permanent scars such as keloid formation, and lack of tattoo removal. However, the conversation was not documented in the patient’s record, and the risks listed on the consent form and on the FP’s website did not include burning and scarring.
In addition to his family practice, the FP owned a medical spa, where he performed various laser procedures, including tattoo removal. The FP was not board certified in dermatology or plastic surgery. In 1997, he had purchased a KTP-532 laser system and was trained on it by the manufacturer over the course of a week. He used this laser for all of the procedures in his practice. He estimated that he had performed approximately 1,000 procedures since purchasing the laser.
In June 2014, the patient returned for his first treatment. The FP set the laser system at 50 joules for 50-milliseconds at 2-pps (pulses per second). The treatment was not complicated. The FP gave the patient post-treatment instructions, and applied antibiotic ointment and a gauze dressing. He instructed the patient to call if he had any difficulties and to return in one month for his next treatment. When the patient returned, the FP noted that the patient was starting to form a keloid scar. The FP increased the power settings, but was careful to avoid the scarred area. He again gave post-treatment instructions and told the patient to return in six weeks, but the patient never returned.
Two weeks after the second treatment, the patient became distressed about the scars covering the tattoo. He consulted a dermatologist whose practice included tattoo removal. The dermatologist made negative remarks about the patient’s results and referred the patient to a burn specialist. The burn specialist, who was also critical of the FP’s treatment, proposed an aggressive treatment plan that would essentially excise the burned skin and stretch the surrounding skin over the burned area. This would leave the patient with a long scar on his chest, but the patient felt that was preferable to raised scars over the tattoo.
The patient filed a lawsuit alleging the FP failed to disclose the potential risks of the treatments, continued to perform treatments despite the keloid scar formation, failed to adequately acknowledge or take into consideration concerns about potential scarring, and inflicted third-degree burns. The patient stated he would not have undergone the treatment had he known he would be left with disfiguring scars.
Expert Testimony
Plastic surgery experts did not support the FP’s treatment of the patient for a variety of reasons, but mostly because of the laser used. Although the KTP laser was FDA-approved for tattoo removal, it did not represent the latest technology for tattoo removal and was not an ideal fit for the patient’s type of tattoo. Experts felt that a Quality-switched laser (Q-switched laser) should have been used because it releases laser pulses in much shorter durations (nanoseconds rather than milliseconds), resulting in less damage to the skin. Also, the KTP laser would not be the laser of choice for this patient because the tattoo was primarily black-blue, a color ideally removed with a neodymium YAG laser. With the KTP laser, the risk of scarring was increased because the number of joules used would have to be relatively high. Experts also felt the informed consent documentation was inadequate, as there was no mention of the risk of burning or scarring.
Discussion
Unfortunately, many cosmetic procedure patients confuse unexpected results (e.g., known complications of the procedure) and disappointment in an outcome with medical malpractice. Therefore, informed consent is important. Patients need to understand that removing a tattoo with a laser is not like erasing a pencil mark. They also need to understand that the removal process is likely going to cost significantly more than the tattoo; that it may take multiple treatments over many months to achieve an optimal result; and that failing to follow physician recommendations during treatment can result in such problems as infection and permanent scarring.3
Informed consent plays a significant role in most cosmetic procedure cases, and certainly in tattoo removal. In this case, however, the main problem was that the FP had not kept up with laser technology, had assumed it was appropriate to use a single type of laser for all procedures and had used questionable settings. Due to lack of standard of care support, the physician in question ultimately agreed the case should be settled.
Medical Liability Risk Management Recommendations
- Stay abreast of advances in laser technology. If you do not have an appropriate laser for a procedure, consider renting one. If you do not employ the newest or most effective technology, you may expose yourself to the allegation of negligence. Also, the patient is entitled to know his or her alternatives, such as more effective treatment modalities.
- Take baseline photographs.
- Consider whether the patient is an appropriate candidate for the procedure and whether the patient’s expectations are realistic. (In this case, it was unlikely the patient’s tattoo removal would be completed by his wedding.)
- Establish and follow specific patient selection protocols.
- Spend as much time as necessary with a patient to ensure that he or she fully understands the risks and possible outcomes of the procedure.
- Ensure the patient understands how many sessions may be necessary to achieve an optimal result and that the skin needs time to heal between sessions.
- If the patient is expected to pay for the procedure on a session-by-session basis, clarify payment details and requirements.
- Ensure the patient understands the importance of post-treatment-session instructions. If the patient does not follow instructions, reiterate the message and document the patient’s nonadherence.
- Carefully analyze your marketing tools.
- Avoid allegations of false advertising. Unrealistic expectations can be fed by unrealistic before-and-after photographs, as well as the wording used in brochures and on Internet sites.
- Check statutes and regulations to determine whether you must list your area of certification, or whether there are restrictions on advertising your services. In California, for instance, models and touched-up photographs cannot be used in a physician’s advertising without a disclaimer.4
- Document discussions with the patient, particularly regarding risks and alternatives that were covered during the consent discussion.
- Review your consent documents to ensure they adequately cover risks and alternatives.
- Adequately address and manage the patient’s pain. Tattoo removal is usually more painful than tattoo placement.3
Before expanding a practice to include cosmetic services, contact your medical professional liability insurance carrier to determine if there are specific underwriting guidelines and requirements that must be met before the performance of cosmetic services will be approved for coverage under your policy. NORCAL Group policyholders should contact Customer Service at 844.4NORCAL to discuss coverage and to make proper arrangements.
References
1. Beute TC, Miller CH, Timko AL, et al. In vitro spectral analysis of tattoo pigments. Dermatol Surg. 2008 Apr; 34(4):508-15.
2. Jow T, Brown A, Goldberg DJ. Patient compliance as a major determinant of laser tattoo removal success rates: a 10-year retrospective study. J Cosmet Laser Ther. 2010 Aug; 12(4):166-9 (2010 Aug).
3. Bernstein EF. Laser Tattoo Removal Semin Plast Surg. 2007 August; 21(3): 175–192. (accessed 3/27/2017)
4. California Business and Professions Code § 651. (accessed 3/27/2017)
