2/16/2017
Tort for Tattoo

Tort for Tattoo

Exposures may have artists seeing red

By S. Karen Bamberger , Roger DeKraker

It is hard to walk down the street (in Seattle, anyway) or watch any kind of professional sporting event without seeing arms and other body parts covered in tattoo ink. There also are persons who use permanent makeup for cosmetic reasons or as a part of a reconstructive process after surgery. Each of these applications of ink under the skin presents a possible tort exposure if the tattoo or makeup becomes infected. 

Tattoo artists or manufacturers of any of the products associated with this type of body art run the risk that, if the products are tainted or if proper procedures are not followed in applying tattoos or permanent makeup, lawsuits may follow, causing these insureds to see only one color at the end of a trial—red. These lawsuits can implicate not only product liability claims for the manufacturers and suppliers of ink and other equipment used in the body art business, but also failure to warn or deceptive practices claims as well as garden-variety negligence claims for the artists. To that end, practitioners need to be well versed in how to handle a product recall should that type of situation arise.

Although tattooing has been around for over 5,000 years, the art of tattooing only recently appears to be burgeoning and, with it, the possibility of litigation. For now, the federal government has delegated the regulation of body art to the states, so take care to familiarize yourself with your jurisdiction’s regulations and statutes. In tattoo-crazy Washington, for example, regulations were only enacted in 2010, and there are 24 steps that a tattoo artist must take when applying a tattoo, including abiding by “universal precautions.”

In a recently litigated a case in Washington, Chester v. Deep Roots Alderwood LLC, et al., a tattoo artist unknowingly used allegedly contaminated ink in a tattoo that she applied to a 23-year-old woman. The plaintiff claimed that, as a result of the contaminated ink, she contracted an infection, had to undergo kidney dialysis, and eventually will need a kidney transplant. In the course of this litigation, the defense was surprised to learn that, although ink used in intradermal tattoos (including permanent makeup) is considered a “cosmetic,” the Food and Drug Administration (FDA) does not require that ink used in such applications to be sterile. This is still the case, although there have been several outbreaks of infections associated with the use of tattoo ink. For example, in 2012, there was an outbreak that resulted in a product recall and market withdrawal of a particular ink. 

Containing Contaminants

There are many steps along the way where contamination can occur, beginning, of course, with the ink itself. If you represent a manufacturer or supplier of ink, then be sure that your client is well aware of the regulations pertaining to these products and that the products are being advertised correctly. For example, in the Chester case, there were allegations that the ink in question was advertised as “sterile” when, in fact, it apparently was not. There also were allegations that the tattoo artist was negligent in failing to use ink that had been gamma irradiated, even though there are no regulations requiring the use of ink to be treated in this way. When insuring and representing ink manufacturing clients, learn what steps, if any, they take to ensure that the ink they sell is as advertised and that they maintain appropriate records that confirm what steps were taken and from which (hopefully, reputable) laboratories the results were obtained. There are studies that indicate even gamma-irradiated ink can contain bacteria. 

Additionally, ensure that what your clients are selling as tattoo ink is, actually, tattoo ink. The FDA reports that a variety of substances are used in tattoos, including printer’s ink and automobile paint. If anyone wants a compelling argument to use against their teenage children, tell them that the FDA does not currently approve any color additive for injection into the skin, even though a number of color additives are approved for use in cosmetics. Not to mention, as occurred in the Chester case, infections can occur from contaminated ink even when the tattoo artist follows hygienic procedures. 

Counsel representing manufacturers or suppliers of ink also should be sure that their clients have some sort of process in place to notify buyers if and when the presence of bacteria is found in any of the ink they sold. If a tattoo artist does not know, and cannot know, that a particular brand of ink has been associated with an outbreak, then the artist can assert righteously that she had no knowledge that she was using an ink that was suspect in any way. When infections occur that are related to contaminated ink, MedWatch alerts are generated. Counsel should caution their clients to keep current on such notifications. 

While the practice of tattooing is here to stay, tattoos need not. Removal of tattoos can lead to scarring, including keloid scarring and the development of granulomas. There are potential issues with the use of magnetic resonance imaging of persons who have tattoos or permanent makeup, as well. The cautious body art practitioner will use a well-crafted release that warns the customer of the potential risks of infection and allergic reactions to the tattoo when it is applied, as well as of the potential consequences if and when the tattoo is removed. Counsel and insurers would serve their clients well by reviewing any of the release forms being used to ensure that they are valid and enforceable.

You are now armed with more information about the world of body art—whether or not your arm sports some “ink.” Help your clients by educating yourself on specific regulations related to potentially affected jurisdictions. Your knowledge will help them ensure that the ink is being properly manufactured and advertised and that the tattoo artist is complying with all appropriate hygiene measures.



S. Karen Bamberger is a shareholder with Betts, Patterson & Mines P.S. She can be reached at kbamberger@bpmlaw.com.

Roger DeKraker is a claims analyst at Nationwide E&S/Specialty. He can be reached at dekrakr@nationwide.com.

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