The plaintiff, now a 35 year-old legal administrator, had, since adolescence, suffered from deep pockmarks on the cheeks of her face.
The plaintiff saw an advertisement for a laser treatment center that offered treatment for facial conditions similar to her own. After meeting with a representative of the defendant’s, the plaintiff was advised that, by undergoing CO2 laser treatment, she could expect to see significant improvement in her condition. Because the plaintiff was extremely leery of undergoing any form of treatment that involved a risk of further disfigurement, the plaintiff requested and was provided with information addressing the risks associated with CO2 laser treatment. The defendant provided the plaintiff with a document entitled: “Treatment with the CO2 Laser”, which addressed risks. The only listed risk mentioned in the document was the possibility of hyper pigmentation darkening of the skin “that will resolve in a matter of weeks.” No other risks, permanent or temporary, were listed. Based on the alleged assurance by the defendant’s sales representative that the CO2 laser treatment involved no appreciable risk of permanent disfigurement, the plaintiff consented to the treatment and the procedure was scheduled.
On the morning the treatment was scheduled to be performed, and just minutes before the plaintiff was taken into the laser treatment room, the plaintiff was provided with a second document that the plaintiff was asked to sign before the treatment could proceed. The document was labeled “informed consent” and addressed the attendant risks. Believing that the risks listed in the informed consent document were the same risks listed in the informational document previously furnished to the plaintiff when she initially agreed to undergo the treatment, the plaintiff signed the informed consent agreement and underwent CO2 laser treatment by the defendant.
Shortly after undergoing treatment, the plaintiff observed a one square inch patch of hypo-pigmented skin (loss of pigment) in the treated area. The patch of skin was considerably whiter that the adjacent skin and was quite noticeable without makeup.
The plaintiff returned to the office of the defendant with concerns about the permanency of the hypo-pigmentation. While the defendant apparently believed initially that the plaintiff would experience improvement in the appearance of her treated area, the defendant eventually confirmed that the hypo-pigmentation was likely to be permanent. The plaintiff subsequently learned that the informed consent document she had signed before undergoing treatment did include loss of pigment as a potentially permanent consequence of treatment.
The plaintiff commenced an action in U.S. District Court against the defendant and the laser treatment center, alleging failure to obtain informed consent. The plaintiff’s complaint alleged that the defendant’s practice of listing two distinct sets of risked one in the informational document and another in the “informed consent” document was negligent. Further, the complaint contended that the practice constituted an unfair and deceptive business practice in violation of G.L. c. 93A. The plaintiff did not allege that the defendant was negligent in the actual performance of the laser treatment. The plaintiff maintained that had she been apprised of the potential for permanent loss of skin pigment when she initially inquired about the known risks, she would not have undergone the procedure.
The case settled one month before trial.
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