Case Summary | Clinic’s negligence causes scarring on forearms in tattoo removal case

by | May 2, 2022 | Health Blog

On 28 June 2017, the respondent patient (Patient) attended the applicant’s clinic (Clinic) in order to undergo laser treatment to remove tattoos from each of her forearms.  The Patient claimed that the scarring which appeared on her forearms was caused by the Clinic’s negligence in administering that treatment.

The background

Since it was never suggested that the Patient had consented to the risk of being burnt, the resolution of the case turned on what caused the scarring, and, in particular, whether the Patient was burnt by the treatment.

A County Court judge found that the scarring of the Patient’s forearms in the area treated by the Clinic resulted from burns sustained in the course of her treatment on 28 June 2017, during which too high a fluence was applied to her tattoos.  The ‘fluence’ is the measurement of power applied to the skin by the laser machine, measured per centimetre square.

The outcome

The Supreme Court of Victoria (Court of Appeal) refused leave to appeal.

Finding not open on evidence

The Clinic’s primary submission was that his Honour’s finding that the Clinic caused burns to the Patient’s skin was not open on the evidence because:

  • none of the treating doctors confirmed a diagnosis of a burn;
  • Dr Rish’s opinion (that there was a full thickness burn) should be rejected for a number of reasons – it was based upon poor quality undated photographs almost 3 years after the treatment, he did not actually see the Patient, he was not a burns expert (as compared with Mr Holten), he worked backwards from the Patient having scars to a conclusion that the treatment was not appropriate, and that he was not impartial;
  • the capacity of the machine to burn was a hypothesis of Dr Rish, and was speculation;
  • there must have been a supervening event; and
  • the Patient’s credibility was questionable (she had a history of mental illness, she did not mention her skin ‘flickering off’ during treatment to the HCC, she gave inconsistent evidence to that given by Ms Thorn about whether the goggles obscured her vision during the treatment, and she denied that the colourful t-shirt photographs showed a blister) and her evidence that she had no subsequent self-treatment should be rejected on that basis.

The primary judge had the advantage of seeing and hearing the Patient give her evidence over 3 days, and there is no ‘glaring improbability’ about his acceptance of her account.  To the contrary, his findings were consistent with the other evidence in the case, including the clinical records and photographs (as his Honour correctly noted).

The clinical records were consistent with the Patient’s account.  They fit in with the Patient’s reports of pain, and record the appearance of redness and swelling shortly after the treatment. Critical, too, was the absence of any record of subsequent attendance or treatment which would suggest a ‘supervening event.’

In relation to there being no diagnosis of a burn, Dr Shvetsova did not ‘confirm’ the absence of a burn, she merely made no reference to a burn.   Secondly, the records were consistent with the evolving nature of a burn (which occurs below the epidermis).  Finally, and most importantly, the notes contained numerous references to ‘burns’ from as early as 4 July 2017 (as well as on 8 July, 9 July, and 10 July 2017).  The Court found it unlikely that practitioners would make reference to burns solely on the word of the Patient, rather than based on their own professional judgment.

The Clinic’s complaint about the experts was tantamount to a suggestion that the appeal court should prefer the evidence of Mr Holten over that of Dr Rish.  This is not a proper basis for complaint where his Honour’s preference was liable to be affected by his assessment of both experts in the witness box.  In addition, Dr Rish’s views were consistent, he had performed 9,000 such treatments, and his views fitted with the clinical observations and photographs.  This was compared with Mr Holten, who was not impartial, and altered his view about the cause of the scarring.

The intervening event hypothesis (that there was another event that caused the scarring) cannot be accepted given the primary judge found that the Patient had undergone no further treatment after the tattoo removal treatment.

The expert accepted by his Honour, Dr Rish, clearly accepted that the machine was capable of, and did, cause the burn.  While Mr Holten did say that you ‘hardly ever’ see burns with laser machines, this did not mean that the machine could never cause a burn.

Jones v Dunkel inference

The Clinic submitted that the failure to produce medical reports from any of the many available doctors should have resulted in an adverse inference that the doctors’ evidence would not have supported the Patient’s case that she sustained a burn.  The inference is that the evidence would not assist, not that it, in itself, would be adverse or unfavourable to the party’s case.

The primary judge held that the notes were quite clear and consistent with the photographic evidence and the inference was not appropriate.  The appeal court held that there was no error in this approach.

Refusal to accept Ms Clow’s note in evidence

The Clinic submitted that the Courts rejection of Ms Clow’s contemporaneous note was in error.

Although the Clinic opened its case on the basis that Ms Clow would be called, she did not attend court as anticipated. The Clinic did not subpoena Ms Clow, nor request an adjournment in order to call her.

The Court noted that Ms Clow was the only person, other than the Patient, who could give direct evidence about what happened during the laser treatment.  His Honour was entitled to take into account the ‘absence of Ms Clow’ in considering whether to reject the accuracy of her note, and prefer the direct evidence of the Patient (as he did).

There was other evidence which cast doubt over the accuracy and contemporaneity of the note, including whether the setting was entered contemporaneously with the time it was fixed, whether the level of supervision was accurately recorded, and the level of training received by Ms Clow.  These matters provided additional grounds on which his Honour was entitled to reject the note.

The implications

This decision highlights the high standard applied by an appeal court when considering a primary judge’s factual findings that have been affected by impressions of credibility or reliability of witnesses as a result of seeing and hearing them give evidence.   In such a case, there should not be interference unless those findings are ‘glaringly improbable,’ ‘contrary to compelling inferences,’ or demonstrably wrong by reason of ‘incontrovertible facts’.

The Court’s comments in relation to the Jones v Dunkel inference show that, where there is other evidence that is consistent and suggests something inconsistent with an inference of this nature, it will not likely be appropriate to make a Jones v Dunkel inference.

The absence of Ms Clow was a critical factor in the weight the Court gave to her note.  Had she been available to give evidence (and seemingly explain the timing of the note and its relativity to the treatment), this may have been ameliorated.  The decision highlights the importance of strategic decisions during trial in relation the presence or absence of witnesses.  Had the Clinic either subpoenaed Ms Clow or sought an adjournment to call her, this may have changed the outcome in relation to the weight given to her evidence.

To read the decision CDC Clinics v Daemolzekr [2022] VSCA 54 click here.

 

Alice Robinson

Alice Robinson