DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II

U.T. CHANDIGARH

          Complaint Case No.: 651 of 2009

 Date of Inst: 07.05.2009

                Date of Decision:08.04.2010

1.   Jitender Kumar Joshi.

2.   Miss. Alka Joshi

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

                        ---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.

---Opposite Parties

QUORUM        SHRI LAKSHMAN SHARMA         PRESIDENT

              SHRI ASHOK RAJ BHANDARI      MEMBER

              SMT.MADHU MUTNEJA            MEMBER

PRESENT:      Sh.Rajinder S.Raj, Adv. for complainant

              along with complainant.

Sh.S.M.Wadhera, Adv. for OP-2

None for OP-1.

                            ---

PER LAKSHMAN SHARMA, PRESIDENT

          Sh.Jitender Kumar Joshi and Ms.Alka Joshi  have filed this complaint under section 12 of the Consumer Protection Act, 1986 praying therein that OPs be directed  to :-

i)              Refund a sum of Rs.12,049/- as expenses on treatment of complainant No.2.

ii)         Pay a sum of Rs.15 lacs as compensation for mental agony and harassment and disfigurement of face and neck of complainant No.2.

2.        In brief, the case of the complainants is that 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.  The treatment of the complainant No.2 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. According to the complainants, Dr.Sahni was transferred from General Hospital Panchkula. So OP-2 was engaged on contractual basis by OP-1. OP-2 is a private medical practitioner. According to the complainant No.2, she had to attend another four sittings i.e. on 14.03.08, 21.05.08, 16.07.08 and 17.09.08 for removal of the hair. She was attended by OP2 during these sittings. According to the complainants, after the treatment of OP-2, the condition of the 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. Scars appeared on her neck. As the complainant No.1 was planning to arrange the marriage of her daughter and therefore, under the mental tension and due to disfigurement of face of her daughter, he chose to take the complainant No.2 to the private clinic of OP-2 for her treatment. The complainant No.2 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. According to the complainants seeing no improvement in the condition of complainant No.2, OP-2 advised thyroid test which was also found normal vide test report dated 29.01.2009 (Annexure C-5).  It has further been averred by the complainants 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.

          According to the complainant No.1, the scars on the face of her daughter and neck were caused due to negligence and deficiency in service on the part of OPs.  OPs have also ruined her personality due to which they have suffered mental pain and agony besides financial loss.  In these circumstances, the present complaint has been filed seeking the reliefs mentioned above.

3.        In the reply filed by OP-1, it has been admitted that Dr.Sandeep Singh Sahni was transferred from OP-1 Hospital and Dr.Rohit Bansal (OP-2) was engaged on contract basis.  It has been denied that OP-2 had given treatment to complainant No.2 in four sittings on 14.03.08, 21.05.09, 16.07.08 and 17.09.08 as OP-2 joined the hospital on 13.06.08.  It has been pleaded that last sitting through laser technique was given to the complainant No.2 by OP-2 who is a qualified Dermatologist and Specialist in Hair Removal Laser Treatment having more than 6 years experience.  It has further been pleaded that on the last sitting OP-2 advised the complainant No.2 to follow some instructions and to visit OP-Hospital for follow up treatment on alternative days but she visited the hospital on 27.09.08 after 10 days of the last sitting. According to OP-1, complainant No.2 has failed to follow the instruction like to use of sun screen to avoid the sun exposure, regular use of medicines etc. and therefore, the complainant No.2 was herself negligent.  It has further been 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 has further been pleaded that if the complainants had any complaint against OP-2 they must have made a complaint to the higher authorities of OP-Hospital and the complainants themselves started taking treatment from the private clinic of OP-2. In these circumstances, according to OP-1, there is no deficiency in service on its part and the complaint deserves dismissal.

4.        In its written statement filed by OP-2, it has been admitted that he was employed by OP-1 on contract basis in the month of June, 2008. It has been denied that he examined complainant No.2 on 14.03.08 and 21.05.08 as he joined the hospital on 13.06.08.  It has been pleaded by OP-2 that he prescribed laser treatment of 50 frequency after examining the growth of unwanted hair on her face and neck and the process of laser treatment was given by technician who operates the laser machine and OP-2 has no role and every due medical care and caution was observed by OP-2 while prescribing the frequency (50j/cm2) at which the laser treatment was to be given.  It has further been 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. According to OP-2, in the present case, it was given only 50J/Cm2 fluency which is medium and on very safe side.  It has further been pleaded that as per medical science, there are certain side effects and complications which may occur in certain patients due to laser treatment such like pain, discomfort, epidermal damage, textural changes, transient, hypo-or hyper pigmentation, secondary infection, scars etc. and the same were brought to the notice of complainant No.2 and she was advised to take certain precautions after treatment which she failed to do so.  It has been denied that after the treatment, scars on the face of the complainant No.2 became darker as alleged in the complaint. In these circumstances, according to OP-2, there is no deficiency in service and negligence on his part and the complaint deserves to be dismissed.

5.        We have heard the complainant in person, learned counsel for the parties and have gone through the entire record including documents, annexures, affidavits etc and the written submissions filed on behalf of OP-2.

6.        In the Law of Torts written by Ratan Lal and Dhirajlal (Twenty-fourth Edition 2009), the term “medical negligence” has been defined as under:_

“Negligence is the breach of a duty caused by the omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do. Actionable negligence consists in the neglect of the use of ordinary care or skill towards a person to whom the defendant owes the duty of observing ordinary care and skill, by which neglect the plaintiff has suffered injury to his person or property...

7.        The above said definition involves three constituents which are as under:-

(1) A legal duty to exercise due care on the part of the party complained of towards the party complaining the former’s conduct within the scope of the duty;

(2) breach of the said duty; and

(3) consequential damage. Cause of action for negligence arises only when damage occurs; for, damage is a necessary ingredient of this tort.”

8.        In case titled as Jacob Mathew (Dr.) Vs. State of Punjab reported in III(2005) CPJ-9(SC), the Hon’ble Supreme Court has held as under:-

19.       In the law of negligence, professionals such as lawyers, doctors, architects and others are included in the category of persons professing some special skill or skilled persons generally. Any task which is required to be performed with a special skill would generally be admitted or undertaken to be performed only if the person possesses the requisite skill for performing that task. Any reasonable man entering into a profession which requires a particular level of learning to be called a professional of that branch, impliedly assures the person dealing with him that the skill which he professes to possess shall be exercised and exercised with reasonable degree of care and caution. He does not assure his client of the result. A lawyer does not tell his client that the client shall win the case in all circumstances. A physician would not assure the patient of full recovery in every case. A surgeon cannot and does not guarantee that the result of surgery would invariably be beneficial, much less to the extent of 100% for the person operated on. The only assurance which such a professional can give or can be understood to have given by implication is that he is possessed of the requisite skill in that branch of profession which he is practising and while undertaking the performance of the task entrusted to him he would be exercising his skill with reasonable competence. This is all what the person approaching the professional can expect. Judged by this standard, a professional may be held liable for negligence on one of two findings: either he was not possessed of the requisite skill which he professed to have possessed, or, he did not exercise, with reasonable competence in the given case, the skill which he did possess. The standard to be applied for judging, whether the person charged has been negligent or not, would be that of an ordinary competent person exercising ordinary skill in that profession. It is not necessary for every professional to possess the highest level of expertise in that branch which he practices. In Michael Hyde and Associates v. J.D. Williams & Co. Ltd., (2001) P.N.L.R. 233, CA, Sedley L.J. said that where a profession embraces a range of views as to what is an acceptable standard of conduct, the competence of the defendant is to be judged by the lowest standard that would be regarded as acceptable. (Charlesworth & Percy, ibid, Para 8.03)

20.  Oft’quoted passage defining negligence by professionals, generally and not necessarily confined to doctors, is to be found in the opinion of McNair J. in Bolam v. Friern Hospital Management Committee, (1957) 1 WLR 582, 586 in the following words:

“Where you get a situation which involves the use of some special skill or competence, then the test as to whether there has been negligence or not is not the test of the man on the top of a Clapham omnibus, because he has not got this special skill. The test is the standard of the ordinary skilled man exercising and professing to have that special skill . . . A man need not possess the highest expert skill; it is well established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art.”

(Charlesworth & Percy, ibid, Para 8.02)

21.  The water of Bolam test has ever since flown and passed under several bridges, having been cited and dealt with in several judicial pronouncements, one after the other and has continued to be well received by every shore it has touched as neat, clean and well-condensed one. After a review of various authorities Bingham L.J. in his speech in Eckersley v. Binnie, (1988) 18 Con.L.R. 1, 79 summarised the Bolam test in the following words:

“From these general statements it follows that a professional man should command the corpus of knowledge which forms part of the professional equipment of the ordinary member of his profession. He should not lag behind other ordinary assiduous and intelligent members of his profession in knowledge of new advances, discoveries and developments in his field. He should have such an awareness as an ordinarily competent practitioner would have of the deficiencies in his knowledge and the limitations on his skill. He should be alert to the hazards and risks in any professional task he undertakes to the extent that other ordinarily competent members of the profession would be alert. He must bring to any professional task he undertakes no less expertise, skill and care than other ordinarily competent members of his profession would bring, but need bring no more. The standard is that of the reasonable average. The law does not require of a professional man that he be a paragon combining the qualities of polymath and prophet.”

(Charlesworth & Percy, ibid, Para 8.04)

22.  The degree of skill and care required by a medical practitioner is so stated in Halsbury’s Laws of England (Fourth Edition, Vol. 30, Para 35):

“The practitioner must bring to his task a reasonable degree of skill and knowledge, and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence, judged in the light of the particular circumstances of each case, is what the law requires, and a person is not liable in negligence because someone else of greater skill and knowledge would have prescribed different treatment or operated in a different way; nor is he guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art, even though a body of adverse opinion also existed among medical men.

Deviation from normal practice is not necessarily evidence of negligence. To establish liability on that basis it must be shown (1) that there is a usual and normal practice; (2) that the defendant has not adopted it; and (3) that the course in fact adopted is one no professional man of ordinary skill would have taken had he been acting with ordinary care.”

Above said three tests have also been stated as determinative of negligence in professional practice by Charlesworth & Percy in their celebrated work on Negligence (ibid, para 8.110)

23.  In the opinion of Lord Denning, as expressed in Hucks v. Cole, (1968) 118 New LJ 469, a medical practitioner was not to be held liable simply because things went wrong from mischance or misadventure or through an error of judgment in choosing one reasonable course of treatment in preference of another. A medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field.

9.        The case of the complainant is that frequency used by Dr.Rohit Bansal(OP-2)  for removal of unwanted hair on neck and face was on higher side which resulted in burning of her skin as a result of which the skin became conspicuously dark.

10.       No opinion from any expert doctor has been placed on record in support of the above said contention. Admittedly, Dr.Rohit Bansal (OP-2) is a qualified Dermatologist and Specialist in Hair Removal Laser Treatment and he has undergone specialized training in hair removal by laser treatment. The learned counsel for the OP-2 has placed on record the extract from the text Book of Dermatosurgery and Cosmetology by Dr.Satish S.Savant, Head Department of Skin & STD, Nanavati Hospital and Medical Research Centre Mumbai-India. As per this text book as mentioned on page No.457, the fluency (frequency) could be given from 10-100 j/Cm2.  Thus, merely because the things went wrong due to mischance or misadventure, OP-2 cannot be held liable for negligence or deficiency in service. 

11.       In these circumstances, the complainants have failed to prove any deficiency in service on the part of OPs. Therefore, the complaint deserves dismissal. Hence, this complaint is dismissed leaving the parties to bear their own costs.

12.       Certified copy of this order be communicated to the parties, free of charge. After compliance file be consigned to record room.

Announced

08.04.2010

Sd/-

(LAKSHMAN SHARMA)

PRESIDENT

cm

sd/-

(ASHOK RAJ BHANDARI)

MEMBER0

Sd/-

(MADHU MUTNEJA)

MEMBER