STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

1.       Jitender Kumar Joshi.

2.       Miss. Alka Joshi

Both residents of H.No.1030, Sector 16, Panchkula.

……Appellants/Complainants

V e r s u s

1.         General Hospital, Sector 6, Panchkula through its Medical Superintendent.

2.       Dr.Rohit Bansal, MBBS, DVD (MDU), Dr. Bansal’s Skin ‘n’ Laser Centre, SCO No.910, Ist Floor (Near Hotel Solitaire), NAC, Manimajra, UT, Chandigarh.

              ....Respondents

Appeal under Section 15 of the Consumer Protection Act, 1986.

BEFORE:  HON’BLE MR. JUSTICE SHAM SUNDER, PRESIDENT.

                MRS. NEENA SANDHU, MEMBER.

S.  JAGROOP  SINGH   MAHAL, MEMBER.

Argued by:          Sh. R.S. Raj, Adv. for the appellants.

                   Sh. Randhir Singh, Lab Technician/duly authorized representative on behalf of respondent No.1.

                   Sh. Sandeep Bhardwaj, Adv. for respondent No.2.

PER  JAGROOP  SINGH   MAHAL, MEMBER

                   This appeal is directed against the order dated 8.4.2010 rendered by the ld. District Consumer Disputes Redressal Forum-II, UT, Chandigarh (hereinafter referred to as the District Forum) vide which it dismissed the complaint filed by the complainants/appellants.

2.                      The facts, in brief, are that the complainant No.2, who had some unwanted hair on her face and neck, approached OP-1 for permanent removal of the same through laser technology, which was to be done in four sittings i.e. on 13.09.07, 24.10.07, 21.11.07 and 02.01.08 by Dr. Sandeep Singh Sahni. Complainant No.1 paid Rs.1000/- per sitting to Dr. Sahni, who was later on transferred from the General Hospital, Panchkula whereafter OP-2, a private medical practitioner, was engaged on contractual basis by OP-1. It was alleged by the complainants that after treatment by OP-2, the condition of complainant No.2 started deteriorating within a few days after treatment on 17.09.08 when OP-2 used the laser machine at a frequency of 50, as recorded in the out patient card. Her skin was burnt and scars appeared on her neck. It was alleged that complainant No.1 was planning to arrange the marriage of her daughter (complainant No.2) but under mental tension and due to disfigurement of her face, he chose to take her to the private clinic of OP-2 for her treatment. She attended the sitting of OP-2 on 03.12.08, 20.02.09 and 16.03.09 after paying huge fee, but there was no improvement, upon which OP-2 advised thyroid test which was also found to be normal as per the test report dated 29.01.2009.  It was pleaded that when OPs failed to improve the condition of the complainant No.2, they took the treatment from General Hospital, Sector 16, Chandigarh under the supervision of Dr. S.D. Mehta.   It was alleged that the scars on the face and neck of complainant No.2 were caused due to medical negligence and deficiency in service on the part of OPs, which ruined her personality and caused mental pain and agony besides financial loss.  Hence this complaint.

3.                      OP-1, in its reply, admitted that Dr. Sandeep Singh Sahni was transferred from OP-1 Hospital and Dr. Rohit Bansal (OP-2) was engaged on contract basis.  It was denied that OP-2 had given treatment to complainant No.2 in four sittings on 14.03.2008, 21.05.2009, 16.07.2008 and 17.09.2008 as he joined the hospital on 13.06.2008 only.  It was pleaded that the last sitting through laser technique was given to complainant No.2 by OP-2, a qualified Dermatologist and Specialist in Hair Removal Laser Treatment, having more than 6 years experience, and she was advised to follow some instructions and to visit OP-Hospital for follow up treatment on alternate days but she visited the hospital on 27.09.08 after 10 days of the last sitting. It was averred that complainant No.2 failed to follow the instructions like use of sun screen to avoid the sun exposure, regular use of medicines etc. and, thus, complainant No.2 was herself negligent.  It was pleaded that the treatment was given by OP-2 to the complainant No.2 by adopting laser technology and using the laser machine on 50j/Cm² which was recommended in the text book of “Dermatolosurgery and Cosmatology) on page 457.  It was stated that the complainants never made any complaint regarding the treatment given by OP-2 and rather started taking treatment from the private clinic of OP-2. Remaining averments were denied being wrong. Pleading that there was no negligence on its part, prayer for dismissal of the complaint was made.

4.                      OP-2, in his separate written reply, has admitted that he was employed by OP-1 on contract basis in the month of June, 2008, however, it was denied that he examined complainant No.2 on 14.03.2008 and 21.05.2008 because he joined the hospital only on 13.06.2008.  It was admitted that he prescribed laser treatment of 50 frequency after examining the growth of unwanted hair on her face and neck but it was pleaded that the process of laser treatment was to be given by the technician who operated the laser machine in which he had no role.  It was pleaded that every due medical care and caution was observed while prescribing the frequency (50 J/cm2) at which the laser treatment was to be given.  It was further pleaded that as per text Book of Dermatosurgery and Cosmetology by Dr. Satish S. Savant, Head Department of Skin & STD, Nanavati Hospital and Medical Research Centre Mumbai-India, the fluency (frequency) could be given from 10-100 J/Cm2 as mentioned on page No.457 of the said book. It was stated that the frequency of 50J/Cm2 given to complainant No.2 was medium and on very safe side.  It was pleaded that as per medical science, there are certain side effects and complications like pain, discomfort, epidermal damage, textural changes, transient, hypo-or hyper pigmentation, secondary infection, scars etc., which could occur in certain patients due to laser treatment and the same were brought to the notice of complainant No.2 and she was also advised to take certain precautions after treatment, but she failed to do so.  It was denied that after the treatment, scars on the face of the complainant No.2 became darker as alleged in the complaint.  Pleading that there was no negligence on his part, OP-2 also prayed for dismissal of the complaint.

5.                      After hearing the ld. Counsel for the complainant  and OP-2  and on going through the evidence on record, the ld. District Forum dismissed the complaint, as stated above.

6.                      Feeling aggrieved, the instant appeal has been filed by the appellants/complainants.

7.                      We have heard the ld. Counsel for the appellants and respondent No.2, representative of OP-1 and have also gone through the evidence on record of the case carefully. 

8.                The OP No.2 was approved for part time appointment on 29.5.2008 vide Annexure R/E and he  joined the hospital on 13.6.2009 as is clear from Annexure R/F.  There were, therefore, only two sittings given by the OP No.2 i.e. 16.7.2008 and thereafter on 13.9.2008 after a gap of about 2 months.  Earlier to 16.7.2008, Miss Alka Joshi, complainant was treated by the previous doctor and the fluency of 40J  was used.  The fluency was raised to 45J/cm² on 16.7.2008 and to 50J/cm² on 13.9.2008. Annexure R-1 is an extract of page 457 of Text Book of Dermatosurgery and Cosmetology, according to which the fluency of 10 to 100 was normal in such cases and the treatment given by OP No.2 was within the prescribed limits.

9.                The learned counsel for complainants/appellants has argued that according to OP/respondent  No.2 (as mentioned in para 2 of the reply), the process of laser  treatment was given by the technician who operated the laser machine and he had no role in it .  It was argued that the laser treatment should have been given by the doctor himself and could not be left to the technician and the same amounted to deficiency in service.  As against it the learned counsel for the OP/respondent No.2 has argued that as mentioned in the Text Book of Dermatosurgery and Cosmetology (page 457), an extract of which has been produced by the OP as Annexure R-1, the fluency was determined by the respondent and thereafter the laser machine was to be operated by the attendant. Dr. Usha Gupta, Senior Medical Officer In-charge, General Hospital, Sector 6, Panchkula submitted her affidavit dated 12.8.2011 in which, it was mentioned that staff nurse Monika Rana was holding a Diploma in General Nursing and had undergone one month training to operate the laser machine regarding which a certificate was awarded to her. It was mentioned that these machines such as X-Ray, C.T. Scan, Hair removal and ECG etc are to be operated by the staff after proper training. She submitted Annexure R/A, the Diploma in General Nursing issued to Monika by the Punjab Nurses Registration Council and the certificate Annexure R/B issued by N.W. Overseas Medical and Surgical Division with whom one month training was undergone by the said staff nurse.  It was Monika Rana who operated the machine as per fluency given by Dr. Rohit Bansal.  The learned counsel also referred to the minimum standard guidelines of care on requirements for setting up a laser room in which it is mentioned that laser treatment is an office procedure and does not require hospital set up. It is mentioned that many laser machines are simple to use and a nurse or a non-physician operator may be allowed to perform the laser after proper training.  An instance has been given  that in California, only nurses and doctors can perform laser treatment, whereas in New York there are no state regulations, so anyone can perform the treatment. The fact that the laser machine was operated on the instructions of OP No.2 by the staff nurse who had been given/provided training to operate the machine cannot be said to be deficient in rendering service.

10.               The next argument of the learned Counsel for the complainant/appellant is that the fluency of 50J/cm² given to the complainant was on the higher side due to which scars appeared on her neck causing disfiguration.  The record produced by the General Hospital, Sector 6, Panchkula on the instructions of this Commission shows that initially the fluency of 40J/cm² was prescribed for the sittings on 13.9.2007, 21.11.2007, 5.3.2008  and 21.5.2008 and thereafter the fluency was increased to 45J/cm² on 16.7.2008 and then to 50 J/cm² on 13.9.2008.  The record further shows that she was not the only person who was being treated at this fluency of 45J/cm². Mrs. Neha on 5.3.2008, Yogesh Rani on 16.7.2008, Dr. Leza and Neelam Rani on 13.8.2008, Sandhya on 18.8.2008, Virender and Mamta on 20.8.2008, Yogesh Rani on 9.9.2008, Dr. Liza and Neelam Rani on 10.9.2008 and Dr. Himani on 13.9.2008 were also treated at the fluency of 45J/cm².  As regards the fluency of 50J/cm², Meenakshi and Anju had been treated with fluency on 27.8.2008.  The learned counsel argued that the fluency is to be determined by the doctor keeping in view the requirement for the removal of the hair by laser treatment and the skin of the patient.  The complainants have not produced any expert evidence to prove that the fluency of 50J/cm² was not required and the scars were caused due to that reason.  In act the fluency was raised systematically to treat the unwanted hair. Annexure R-1 is an extract of page 457 from the Text Book of Dermatosurgery  and Cosmetology, in which it was mentioned that fluency of 10 to 100 J/cm²  can be provided in case of long pulsed ND:YAG: Collglide, (Excel Altus).  The frequency prescribed by the doctor was within the set limits. Thus there was no negligence of the doctor in that respect. 

11.               The complainant has not produced any expert evidence to prove firstly that there are scars on the neck of the complainant, which are permanent in nature, and secondly that there was any negligence on the part of the OP No.2 in treating the complainant.  In the absence of expert evidence the complaint could not have been allowed by the learned District Forum.

12.               It is further argued by the learned counsel for the OP/respondent No.2 that the complainant herself was negligent in taking medicines, when the same were prescribed and if the pigmentation has occurred it was due to her negligence and not that of OP. Annexure C-2 shows that the complainant No.2 was last seen in the hospital on 27.9.2008 and thereafter she appeared in the private clinic of OP No.2 on 3.12.2008 for which Annexure C-3 was issued. The complainant therefore, did not get any treatment for about 67 days and did not take any medicine for the said period when it was necessary for her to take medicines.  The complainant appeared in the Govt. Multi Specialist Hospital, Sector 16, Chandigarh on 21.3.2009 when three medicines were prescribed by the doctor.  She however, purchased only one medicine vide Annexure C-20 and not the other two.  She again appeared on 11.4.2009 on which day  the previous three medicines were again repeated and a 4^th one was also prescribed.  The complainant purchased the said medicines vide Annexure C-21.  If there had been any such problem with the complainant as alleged by her she would not have been careless in taking proper treatment/medicines as and when prescribed by the doctor for her treatment. It therefore, shows that the pigmentation, if any, occurred due to her own fault in not appearing before the doctor as required and in not taking medicines prescribed for her treatment.

13.               It may be mentioned for the sake of repetition that there is no expert evidence produced by the complainant to prove that the scars are permanent in nature.  The complainant appeared before the Commission and was examined by one of the Members of the Commission on 6.4.2011 when very mild scars were noticed on her neck.  The complainants/appellants produced Annexure A-2, which relates to laser hair removal side effects. It is mentioned that laser scars has been known to happen in the past particularly in patients with tanned skin but these days the new laser machinery has all but eliminated this side effect. It was further provided that lightening of the demis, or hypo  pigmentation, can occur particularly in tanned skin types and where there are multiple exposure to laser procedures.  According to the literature, it normally does not last long, permanent, hypo pigmentation is hardly ever seen. It therefore, shows that the suspicion of the complainants/appellants having developed scars is not well founded and it is only hypo pigmentation which would fade away with the passage of time.  What we noticed on the examination of the complainant is that it has already faded away and only mild scars are now visible which are also likely to fade  away with the passage of time.  Since this is a known side effect of the laser hair removal, the OPs could not be held liable for it and the complainants were expected to have known the same and undertook the treatment with an open mind that this hypo pigmentation is likely to occur. There is, therefore, no deficiency in service on the part of the OPs in this respect.         

14.               In view of the above discussion, we are of the opinion that the complainants/appellants have failed to prove if there was any medical negligence or deficiency in service on the part of the OPs.  The complaint was, therefore, rightly dismissed by the learned District Forum and we do not find any merit in this appeal.  The appeal is accordingly dismissed leaving the parties to bear their own costs.

                   Copies of this order be sent to the parties free of charge.

Pronounced.

13^th September, 2011

        Sd/-

[JUSTICE SHAM SUNDER]

PRESIDENT

Sd/-

[NEENA SANDHU]

MEMBER

Sd/-

[JAGROOP SINGH MAHAL]

MEMBER

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