State Consumer Disputes Redressal Commission
Veena Sethi(Deceased) vs Dr. J.B. Ratti, on 4 November, 2008
IN THE STATE COMMISSION : DELHI IN THE STATE COMMISSION : DELHI (Constituted under Section 9 clause (b) of the Consumer Protection Act, 1986 ) Date of Decision: 04-11-2008 Complaint No.C-270/98. Ms. Veena Sethi(Deceased) -Complainant Through legal Representative, Through Ms. Kiran Sethi, Mr. Mohammad Faraz, R/o A-184, Defence Colony, Advocate. New Delhi. Versus 1. Dr. J.B. Ratti, -Opposite Party No.1 Proprietor, In person. M/s Vital weight Clinic, L-3 (GF), South Ext.2, (Near NIIT) New Delhi-110049. 2. Dr. J.K. Jain, -Opposite Party No. 2 C/o M/s Jain Medical Centre, Through A-39, New Delhi South Extension-II, Mr. J.C. Jetli, (N.D.S.E-II) Advocate. New Delhi-110049. 3. Dr.(Mrs) Ragini Jain, -Opposite Party No.3 W/o Dr. J.K. Jain, Through A-39, New Delhi South Extension-II, Mr. J.C. Jetli, (N.D.S.E-II) Advocate. New Delhi-110049 4. Dr. Jain Clinic (P) Ltd., -Opposite Party No.4 A-39, New Delhi South Extension-II, Through (N.D.S.E-II) Mr. J.C. Jetli, New Delhi-110049. Advocate. (Through Dr. J.K. Jain) Managing Director) CORAM: Mr. Justice J.D.Kapoor President Ms Rumnita Mittal Member
1. Whether reporters of local newspapers be allowed to see the judgment?
2. To be referred to the Reporter or not?
JUSTICE J.D. KAPOOR, PRESIDENT (ORAL) Alleging deficiency in service on the part of the OPs causing irreparable loss, permanent disability and disfigurement to the complainant, the complainant has through this complaint sought the following reliefs:-
(i) OPs No. 1to 4 be directed to pay to the complainant a sum of Rs.20,000/- towards refund of fees for the operation and interest from the date of operation upto the date of filing this complaint amounting to Rs.6,800/-.
(ii) OPs No. 1 to 4 be directed to pay a sum of Rs.50,000/- to the complainant towards expenses incurred on her treatment after the operation.
(iii) OPs No.1 to 4 be directed to pay a sum of Rs.10,00,000/-towards damages for mental trauma and agony.
(iv) OPs No. 1to 4 be directed to pay a sum of Rs.50,000/- towards the cost of transportation to hospital, doctors etc. and to pay to the complainant a sum of Rs.30,000/- towards legal expenses of complainant with interest @ 24% per annum till the realization of the aforesaid amount.
2. Allegations of the complainant, in brief, are that she was working as a Principal with Vidya Bhawan, Girls Senior Secondary School, New Rajinder Nagar, New Delhi. She was heavy weight had excessive fat on her body. The OP No.1 runs the Vital weight Clinic at L-3, (GF) South Extension Part-II (Near NIIT), New Delhi and OP No.2 and 3 are a unit of purported company Jain Clinic (P) Ltd. OP No.4. The complainant came across an advertisement dated 05.01.1997 in the Hindustan Times daily newspaper, captioned Body shaping by Liposuction.
3. Allured by the aforesaid advertisement, the complainant alongwith her friend Smt. Archana Tuli visited Vital Weight Clinic run by the OP No.1 on 05.03.1997 and met OP No.1 and inquired about the details of liposuction technique as advertised in the newspaper the Hindustan Times. OP No.1 assured her that an opening of only 4 to 4 mm diameter would be made on a hidden part of the body to remove the fat and that she could go back on the same day and attend to her daily routine without discomfort. On the said representation and inducement she was induced to pay Rs.5,000/- as an advance to OP No.1 for which no receipt was issued by him at that time. She was asked to come for Liposuction on Friday i.e. 07.03.1997 at 9.a.m. As instructed by OP No.1, the complainant along with her colleague and friend Smt. Archana Tuli, went to OP No.4 (Jain Medical Centre) at 8.a.m. in the morning of 07.03.97, located at A-39, New Delhi South Extension part-II, New Delhi.
4. At the clinic, OP No.2 and 3 reassured the complainant that she would loose weight in the range of about 50 to 60 kg on the very same day. The complainant was taken to operation threatre on the same day by OP No.1 to 3 with the help of the other staff of the hospital and general anesthesia was given to the complainant by OP No.1 and during operation the OPs took out flesh from complainants right and left arm and she was brought out of the operation threatre at about 5 PM. At that time the complainant was in a semi-conscious state. The above named doctors showed the complainant and her fried Smt. Archana Tuli, two buckets containing blood and pieces of flesh removed from both of her arms. The arms were covered with bandages and she was informed that operation was very successful in the presence of her companion Smt. Archana Tuli, which record that the complainant was made to stay at Jain Medical Centre for one day and on the next day i.e. 08.03.1997 the complainant was discharged. The OP told the complainant to visit the center for one or two times for change of bandage and assured her that the operation had been accomplished according to the literature given to her earlier. As per liposuction technique blood is not supposed to flow and fat is sucked out, but on account of deep wounds rashly and negligently caused by the Op No.1 to 3, blood vessels were severed resulting in excessive and unnatural bleeding.
5. On 10.03.1997, the complainant alongwith her friend Smt. Archana Tuli visited Jain Medical Centre, for dressing when they were shocked to see that there were long cuts/scars on both of her arms. Complainant immediately protested to the doctor that she had not only been cheated but also been injured grievously with deep cuts and scars and suffered severe mental agony as also disfiguring of her body. She was assured by the doctors at the time that these scars would disappear in a few days. She continued visiting the OP No.4 for bandage/dressing but her wounds were not healing. After the lapse of more than 18 months the wounds caused by the operation have not yet healed.
6. The complainant is still unable to perform her day-to-day work, i.e. the ordinary pursuits and still continue to suffer bodily pains and discomfort. The operation has also resulted in permanent disability and disfigurement. The complainant is still in a continuous process of visiting doctors for bandage/ dressings and for further treatment to overcome the complications arising out of faulty and negligent acts and omissions of the above named doctors alongwith other known and unknown persons.
7. As against this the OP vehemently denied that there was any allurement and/or the complainant was allured by the said advertisement. It is vehemently denied that OP No.1 assured the complainant that opening of only 3 to 4 mm would be made on a hidden part of the body to remove the fat. There were series of discussions and meetings and whereupon the correct procedure and process was explained to the complainant. The complainant after understanding the same being an educated lady came forward for the said process and was rightly treated for. However, the corrective measures were to be followed which were not cared for by the complainant and she did not follow the same with OP No.1 who kept on reminding the complainant for the same. The name of the treatment for different patients would remain the same. However, the extent and gravity of the problem can vary the duration of surgery and recovery. Depending upon the requirement different procedures are followed for different persons. A person, who has attained such a heavy weight with accumulation of such excessive fat allover her body with the passage of number of years together, can not be turned into a slim trim girl by any specialized skill, that too within a span of few hours. OP No.1 took extra care in explaining the same operation by way of diagrams as well as by way of illustrations as being provided in various textbooks as the complainant being an educated lady showed keen interest to understand the same. The complainant agreed for Lipoplasty of Arms which is an additional procedure of Liposuction and involves removal of stretched and hanging skin of arms as well. It is vehemently denied that the complainant was induced to pay Rs.5000/- as advance to OP No.1. As no payment was made, no receipt was issued at that time. By this procedure, any area of the body can be brought into shape, which has excess fat deposit in that area. The extracts of well known/ well read and universally accepted as authorities in the field of cosmetic surgery related to Lipoplasty are annexed as Ex.R-2(colly). The procedure of liposuction is part of lipoplasty.
Lipoplasty involves liposuction and excision of extra fat and skin. The complainant had come to the OPs about a week before March 3, 1997 and then again on March 3, 1997 for consultation before the surgery.
8. OP No.1 upon her first meeting itself, informed the complainant that she was suffering from Bat-Wings which is a deformity of the upper arms. In such a condition of a patient, large volume of fat hangs down on the upper arm and is covered with thick and stretched skin. Exactly the same was the condition of the complainant when she came to OP NO.1. during detailed discussions held with the complainant, it was clearly mentioned and, explained by OP NO.1 and understood by the complainant as to the type of treatment required for the correction of aforesaid deformity in the upper arms. The complainant was informed that she will need an operation called lipoplasty of Arms. As already submitted above it was clearly informed to her that the lipoplasty involves liposuction and excision of extra fat and skin. The complainant being educated person not only understood the problem she was suffering from but also the type of treatment required, the procedure involved and the general information about the Liposuction as well Lipoplasty through consultation. The complainant also took the information brochure from OP No.1. The availability of the brochure free of cost does not ipsofacto point out that the said procedure is being recommended or is being advised which is contrary to the consultations and advice, given to the complainant. The information with regard to Liposuction is freely available at various places as well with OP NO.1. However, what treatment the patient will be required would depend upon the expert advice with regard to his or her specific need.
9. The complainant after getting the first hand knowledge of her problems about a week before returned on 3rd March 1997. The complainant told OP No.1 that she had clearly thought over the whole procedure/process/surgery/ treatment to be meted out to her and that she was willing to undergo Lipoplasty for shaping her upper arms. OP NO.1 after the said decision of the complainant wrote down on his letter head that the complainant is ready for Lipoplasty on 07th March, 1997.
10. The complainant in fact herself selected the area for treatment i.e. her arms and signed against this selection of operation sought which is duly recorded. It is pertinent to mention here that the complainant is a lady who was very obese and who had huge deposits of fat all over her body. OP NO.1 who has carried out a large number of such cosmetic surgical procedures was conscious of the fact about such false and frivolous complaints to be raised later and as such, OP NO.1 even took the measurement of upper arms and the complainant had put down her signatures against these measurements. There is no ambiguity or doubt of whatsoever nature as to what was advised and agreed to and accepted and signed and acknowledged by the complainant herself i.e. LIPOPLASTY FOR ARMS and nothing else. Complainant, took full four days in giving consent in that regard. There was admission and acceptance on the part of the complainant for the treatment. There was nothing that was not disclosed to her. A consent was obtained from the complainant, whereby informing her that the procedure of Lipoplasty/Liposuction is not for weight reduction.
11. The complainant agreed for Lipoplasty of Arms which is an additional procedure of liposuction and involves removal of stretched and hanging skin of arms as well.
It is incorrect that the complainant was induced to pay Rs.5000/- as advance to OP No.1. As no payment was made, no receipt was issued at that time. It is not denied that the complainant was called for the Lipoplasty procedure on 07th March, 1997.
12. As already explained above, the process was carried under local anesthesia only. After the Lipoplasty was carried out in one arm, the complainant was given rest and then the Lipoplasty was carried out in the second arm. This is a lengthy process and involves time. The complainant was fully aware and in fact requested to see the fat taken out from her arms. The complainant as well her friend not only giggled but also made fun to each other after seeing only the skin and the fat. The complainant on her own stopped coming for taking treatment, which was required in her case. The allegations pertaining to sufferings by the complainant, on account of the operation carried out by the deponent under general anesthesia are all incorrect. The allegations pertaining to irreparable loss, permanent disability and disfigurement to the complainant are all incorrect.
13. We have heard the learned counsel for the parties and accorded careful consideration to the allegations and medical negligence on the part of the OP No.1 who availed infrastructure of OP No.2 for carrying out the liposuction. The complainant has relied upon the following documents in support of her claim:-
(i) Annexure A-is the copy of advertisement in Hindustan Times dated 05-01-1997 which is to the following effect:-
BODY SHAPING BY LIPOSUCTION (Go home the same day) Body contouring and treatment of :
Paunchy belly, Bulging flanks. Lower belly bulge. Blouse bulge or chest rolls, upper thigh side bags, double chin, Male breast, or gynaecomastia. Any other fat spot to give smooth countour to body shape.
IDEAN FOR Hanging belly, fold after deliveries, remaining fatty bludges after losing weight.
VITAL WEIGHT CLINIC L-3(GF), South Ext. 2 (Near NIIT) New Delhi-110049.
Ph: 6484882, 6442333.
(ii) Annexure B is copy of brochure of Vital Weight Clinic explaining the procedure of liposuction, what area the benefits of liposuction and which problems can e treated by liposuction.
(iii) Annexure C is copy of letter dated 03-03-1997 fixing appointment for liposuction.
(iv) Annexure D is copy of medical reports of complainant before the operation.
(v) Annexure is copy of bills and receipts.
(vi) Annexure F is copy of bacteriology/mycology report of the complainant after the operation.
(vii) Annexure G is certificate of Dr. Mrs. P. Kohli, which is as under This is to certify that Ms. Veena Sethi ahd Liposuction of both arms on 7th March 1997.
By the end of April she still had gaping wound 3 x 4 in size C Induration & Scarring of right arm and Induration & Scarring of Left arm. She was referred to plastic surgeon. Who advised skin grafting of right arm or dressing of wound C Sofrqa Tuley (approximate healing time 6-8 wks.) She could not perform active movements of Rt. Arm after 2 months, she still had discharge from the wound c and collection of fluid at multiple sites of scars c swelling. She was again referred to the plastic surgeon for needful. She also had disfigurement of both arms.
(viii) Annexure K is copy of MLC No. CS-1083830-97 given by Dr. R.K. Sharma & Dr. Dr. Lal Rozama, which is to the following effect:-
As per the request of I/O following facts may be noted-(1)
Weight of patient 103 kg.(2)
Old healed scar present on the inner side of right arm with contracture on medical aspect or right arm on lower aspect.
Total are 15 x 15 cm.(3)
Old healed scar present on the left arm on medical aspect 15 x 4 cam. The scar is about 9-10 months old. Oozing from the scars are present at places. Restriction of movements of both arms present.(4)
The injury present on the both arms is grevious in nature as it may result in permanent loss of movement of both arms to some extent. It has caused disfiguration of the body.(5)
Liposuction should not invariably produce such scars.
(ix) Annexure S is photographs.
14. On the concept of medical negligence we have culled out certain criteria from the ratio of large number of judgments starting from Bolams case followed by various judgments of the Supreme Court, some of which are as under :-
(a) Bolams case reported in (1957) 2 AII ER 118, 121 D-F
(b) Sidway V. Bethlem Royal Hospital Governors and Others 643 All England Law Reprots (1985) 1 All ER.
(c) Maynard V. West Midlands Regional Health Authority 635 All England Law Reports (1985) 1 All ER.
(d) Whitehouse V. Jordan and Another 650 All England Law Reports (1980) 1 All ER.
(e) Indian Medical Association Vs. V.P. Shantha & Others (1995) 6 SCC 651
(f) Jacob Matthew Vs. State of Punjab and Another (2005) SCC (Crl.) 1369
15. The conclusions are as under :-
(i) Whether the treating doctor had the ordinary skill and not the skill of the highest degree that he professed and exercised, as everybody is not supposed to possess the highest or perfect level of expertise or skills in the branch he practices?
(ii) Whether the guilty doctor had done something or failed to do something which in the given facts and circumstances no medical professional would do when in ordinary senses and prudence?
(iii) Whether the risk involved in the procedure or line of treatment was such that injury or death was imminent or risk involved was upto the percentage of failures?
(iv) Whether there was error of judgment in adopting a particular line of treatment?
If so what was the level of error?
Was it so overboard that result could have been fatal or near fatal or at lowest mortality rate?
(v) Whether the negligence was so manifest and demonstrative that no professional or skilled person in his ordinary senses and prudence could have indulged in?
(vi) Everything being in place, what was the main cause of injury or death. Whether the cause was the direct result of the deficiency in the treatment and medication?
(vii) Whether the injury or death was the result of administrative deficiency or post-operative or condition environment-oriented deficiency?
16. As is apparent from the contention of the counsel for the complainant, complainant was allured by the advertisement as well as brochure that fat may be on any part of the body would be reduced considerably through the process of liposuction and she never agreed for lipoplasty for removal of hanging skin and it appears that when the wounds could not heal for long and lipoplastgy left long cuts and scars on both of her arms she felt concerned.
17. Let us assume for the sake of arguments that the complainant who was very obese went to the OPs for weight reduction and gave consent for lipoplasty. Now we have to see whether there was any lack or deficiency in conducting the operation of lipoplasty or any lack of post operative care.
18. In our view whenever any person undergoes for weight reduction or weight removal of hanging skin or for body shaping, he or she goes by the advice of the expert in the field and if weight at some particular area can be reduced by liposuction, the said process may be resorted to. Liposuction surgery is commonly performed for taking fat from different parts of the body and medical literature in this regard shows that by this procedure any area of the body can be brought into shape.
19. Liposuction is mainly for body shaping for a specific area and may be partly for weight reduction and lipoplasty necessarily involves excision of extra fat and skin which may be an additional procedure. In this regard reference of Ex. R.2 may be made, which is as under:-
BRACHIOPLASTY Markings Excision is planned so that the final scars are on the medical aspect of the arm and are not visible from behind when the arms are at the side. The patient is marked standing with arms held up at right angles form the body.
A reference line indicating the position of final closure is drawn along the brachial groove running from the medical epicondyle to the apex of the axilla.
The planned excision is drawn as an eccentric ellipse with the brachial groove as its central axis. The length and width of the ellipse depend on the planned excision and are determined by pinching the skin to ascertain the degree of laxity. Most often the proximal end of the ellipse begins at the axilla and extends as far down the arm as necessary, usually ending proximal to the medical epicondyle. Transverse lines drawn along the ellipse assist in alignment of skin during closure.
OPERATIVE TECHNIQUE Anesthesia, positioning, and draping are identical to that for brachial liposuction.
The skin is divided along the superior line of the ellipse, and an electrocautery is used to raise an inferiorly based flap. The plane of dissection is through the superficial fat. The deep fat is left undisturbed to protect the basilica vein and accompanying lymphatics and to preserve maximal skin sensibility.
The flap is undermined as far as the preoperative estimate of the extent of resection. Additional dissection is neither necessary nor desirable. The flat is then pulled in an upward direction, and the contour of the lower border of the arm is observed to estimate the correct level of excision. The effect should be one of smooth diminution of size with no central constriction.
Excessive tension on the flat will constrict the central third of the arm. If an area of constriction is present, flat tension is decreased. The excess is cut away in a segmental fasion. Deep tissues are closed with 0 chromic sutures. The skin is closed with running subcuticular 3-0 polydioxanone sutures (PDS). If necessary, a Z-plasty in or near the axilla can be used to prevent contracture and further reduce the transverse dimension of the upper arm.
20. In the instant case complainant had come to the OP No.1 for weight reduction that may also necessarily involved body shaping.
There is no medical literature before us that the kind of fat or skin the complainant was having on her arms could have been brought into shape or could have been removed only through the procedure of liposuction. Large volumes of fat was hanging down on the upper arm and was covered with skin.
21. What kind of treatment will be required for a particular problem is the decision of an expert and in the instant case OP No.1 is skilled person and expert in the line of treatment of liposuction and lipoplasty. However, it is explained to us by OP No.1 that a cut is made at a place which are hidden and not openly visible on the arms and therefore question of disfigurement or permanent disability does not arise nor does it cause restriction of any movement of arms.
22. It appears to us that the complainant agreed for the lipoplasty on the representation that the operation will be conducted with 3-4 mm cut on a hidden part and the complainant could go back the same day and perform her regular work thereafter without any discomfort.
It was at later stage that she saw that she had long cuts on both the arms and she had to stay at Jain Medical Centre for one night and suffered subsequent pain, agony and scars which partly amounted to disfigurement and she had to incur huge expenses for after care treatment. This was due to false representation on the part of OP No.1 as the entire procedure, after effects and subsequent treatment for removal of scars or rectification of the disfigurement were not explained. In the process the complainant had suffered some kind of partial disfigurement due to either the misrepresentation or due to lack of some post operative care.
23. Since the services of OP No.1 alone were availed by the complainant and OP No.2 provided only the facilities, the OP No.1 alone can be held guilty for not explaining the process of lipoplasty properly and also its after effects and negligence in not taking proper post-operative care and causing mental agony and partial disfigurement due to which the complainant had to incur huge expenses.
24. In the result we hold OP No.1 liable and dismiss the complaint against the remaining OPs.
25. Taking over all view of the facts of case as well as the nature of deficiency we deem that lump sum compensation of Rs. 50,000/- shall meet the ends of justice.
26. Payment shall be made within one month from the date of receipt of this order.
27. A copy of the order as per statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to Record Room.
28. Announced on 4th November 2008.
(Justice J.D. Kapoor) President (Rumnita Mittal) Member jj