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For those about to get a tattoo

Posted Saturday, April 9, 2016 by John S. Palmer

Tattoo recipients may have no recourse if harmed by contaminated ink. On April 7 the Court of Appeals issued a ruling in Chester v. Deep Roots Alderwood, LLC, which states:

Anna Chester suffered an adverse reaction after being tattooed with ink that appears to have been contaminated with bacteria when the tattoo artist received it from the distributor. Chester brought negligence claims against the tattoo artist and the tattoo parlor, arguing that they had a duty to use sterile ink. The trial court dismissed her claims on summary judgment and Chester appeals. We affirm, because neither the regulations governing the tattoo industry nor the common law impose a duty to use sterile ink.

The opinion states that the ink caused minor skin irritations for most customers on whom it was applied, but Chester’s kidney function declined rapidly and she needed dialysis. Her doctor believed she had chronic kidney disease that was aggravated by a bacterial infection caused by contaminated ink.

Tattooing is regulated by the Washington Department of Health. The Court of Appeals noted that that state law requires the Secretary of Health to adopt regulations “in accordance with nationally recognized professional standards, for precautions against the spread of disease, including the sterilization of needles and other instruments” used by tattoo artists. The specific regulation that has been adopted, WAC 246-145-060, requires single-use, pre-sterilized disposable needles, and the cleaning and sterilization of instruments between clients. However, the Court of Appeals concluded:

There is no regulation that, by its plain language, creates a duty to use sterile ink. The regulatory scheme as a whole indicates that the secretary carefully considered sterilization as it applies to the tattoo industry. Considering the detail of the regulatory scheme, the specific requirements concerning sterilization, and the attention given to tattoo ink, it is not reasonable to conclude that the secretary intended to require the use of sterile ink but couched that duty within the requirement to use sterile instruments and aseptic technique. We conclude that the plain language of the regulation is not ambiguous and the legislative intent is clear. There is not a regulatory requirement to use sterile ink.

Chester also claimed that the defendants were negligent per se because RCW 70.54.330 defines “tattooing” to involve the use of “nontoxic” dyes or pigments, but the Court of Appeals disagreed, stating that RCW 5.40.050 only establishes negligence per se when a tattoo artist breaches a statute or regulation intended to be “a precaution against the spread of disease.”

Finally, the court said Chester had failed to show that the defendants had breached the common law duty to use reasonable care. To establish what duty of care is owed, courts use a cost-benefit analysis to determine if the cost of imposing a duty is justified by the likelihood and severity of the harm that would otherwise result. Chester argued the defendants breached their duty of care by failing to use sterile ink. In response, the court said she failed to address “the burden of using sterile ink” and “has not shown that sterile ink was widely available at the time in question, that claims of sterility were reliable, or that tattoo artists had the means to test ink for contamination and sterilize it on site.”

The implications of this ruling are that, absent a change in the law, tattoo recipients in Washington assume the risk that the ink used may be contaminated.

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Law Office of John S. Palmer11911 NE 1st St, Ste. B204,Bellevue, WA 98005-3056