State Consumer Disputes Redressal Commission
Dr. Bhramaramba S.A.V. vs Tln Anusha on 24 August, 2017
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL FORUM Telangana First Appeal No. A/91/2015 (Arisen out of Order Dated 23/04/2015 in Case No. cc/661/2013 of District Hyderabad-III) 1. Dr. Bhramaramba S.A.V. Consultant Dermatologist, Cosmetologist and Laser Specialist, Director, Mediderma Super Specialty Skin and Laser Clinic 203 and 204, Ameer Estate, Ameerpet, S.R.Nagar Road, Next to ICICI Bank Hyderabad 500038 ...........Appellant(s) Versus 1. TLN Anusha C/o. D.Sunil, Aged 32 years, Business Analyst, H.No.5-13-152, Indiranagar, APHB Colony, Moulali Hyderabad 500040 ...........Respondent(s) BEFORE: HON'BLE MR. JUSTICE B. N. RAO NALLA PRESIDENT HON'BLE MR. Sri. PATIL VITHAL RAO JUDICIAL MEMBER For the Appellant: For the Respondent: Dated : 24 Aug 2017 Final Order / Judgement BEFORE THE TELANGANA STATE CONSUMER DISPUTES REDRESSAL COMMISSION: AT HYDERABAD F.A.No. 91 OF 2015 AGAINST C.C.NO.661 OF 2013 DISTRICT CONSUMER FORUM-III HYDERABAD Between Dr.Bhramaramba SAV Consultant Dermatologist, Cosmetologist And Laser Specialist, Director Mediderma Super Speciality Skin & Laser Clinic #203 & 204, Ameer Estate, Ameerpet -SR Nagar Road Next to ICICI Bank, Hyderabad-500038 Appellant/opposite party A N D TLN Anusha C/o D.Sunil Aged 32 years, Business Analyst Old Add: H.No.5-13-152, Indiranagar APHB Colony, Moulali, Hyderabad-500040 New Address: H.No.1-1-721,Street No.12 Near Narmada Hospital, Gandhi Nagar Hyderabad-500080. Respondent/complainant Counsel for the Appellant M/s K.Chidambaram Counsel for the Respondent Party in person QUORUM : HON'BLE SRI JUSTICE B.N.RAO NALLA, PRESIDENT & SRI PATIL VITHAL RAO, MEMBER
THURSDAY THE TWENTY FOURTH DAY OF AUGUST TWO THOUSAND SEVENTEEN Oral Order : (per Hon'ble Sri Justice B.N.Rao Nalla, Hon'ble President) *** This is an appeal filed by the opposite party aggrieved by the orders of the District Consumer Forum-III dated 23.04.2015 made in CC No.661 of 2013 directing the opposite party to refund Rs.33,250/- towards treatment together with compensation Rs.65,000/- and costs of Rs.2,000/- within four weeks failing which the said amount of Rs.1,00,250/- will carry interest @ 9% p.a. from 01.06.2015 till realization.
2. For the sake of convenience, the parties are referred to as arrayed in the complaint.
3. The case of the complainant, in brief, is that she consulted Dr.Brahmaramba, Dermatologist, cosmetologist and Laser Specialist for the purpose of laser hair removal treatment for her chin and upper lip. She was informed that 10-12 sittings are required for permanent hair reduction and there would be no side effects in the treatment and to that effect she was required to pay Rs.33,250/- for 13 sittings. While so on the 11th sitting on 13-02-2012, the Opposite Party used high energy for longer duration than usual resulting in blisters and severe swelling which totally deformed the Complainant's face beyond recognition. The Opposite Party prescribed some medication for the reduction of swelling and assured her that the skin would restore to normalcy in a month. The blisters on the face turned into keloids and the complainant submitted photographs of the scars to the Opposite Party via email. But there was no response. Finally, the Opposite Party prescribed some ointment for reduction of the keloids but there was no significant improvement. The Complainant again consulted the Opposite Party on 26-06-2012 when she was advised intralesional steroids for every 13 days to suppress the keloids completely. Although the Complainant has been following the Opposite Party's instructions and shuttling for treatment from Palakol to Hyderabad for the last one year 7 months, there was no suppression of the keloids. The case of the complainant is that due to negligence on the part of the Opposite Party for having failed to make proper analysis of the skin type and improper treatment causing severe physical and mental trauma to the Complainant. Hence, the complaint praying to direct the opposite party to pay a sum of Rs.1,00,000/- towards compensation along with refund of Rs.33,250/- paid towards the treatment. It is also prayed for Rs.15,000/- being the cost of further treatment of the scars that were developed on the face of the Complainant.
4. The opposite party resisted the case contending that the complainant approached Mediderma Super Specialty Skin and Laser Clinic for hair removal treatment and the same was explained to the complainant who also submitted a Consent Form for the same on 05-06-2010. The treatment known as Laser assisted hair removal by LYRAi long Pulsed Nd-YAG laser which has been prevalently used for the last 9 years and certified as safe laser treatment was given to the Complainant also. It is denied that she has assured permanent reduction of hair growth or that there would be no side effects. The blistering of the Complainant's skin after the laser treatment is a rare side effect which generally resolves with treatment without any scar formation. It is further contented that after initial sittings, since there was only partial response, this Opposite Party slightly increased the energy or fluency of the laser treatment with the intention of giving best result for the problem of the Complainant. The first 7 to 8 sittings were done with 10 mm versastat hand piece. The fluency being 75 J per square centimeter which was well tolerated by the Complainant. The 9th and 10th sittings were done with 5mm versastat hand piece using 80 J per square centimeter. However, since there was no satisfactory improvement, subsequently, it was decided to increase the fluency to 100 J per square centimeter and again in 11th sitting the treatment was repeated with the same fluency on 28-01-2013. In view of the side effect she developed and the thinner hair that were persisting it was decided to use the Q switched Nd-YAG Laser Qx-Max from Fotona, Slovenia. Fotona is one of the leading global laser companies which manufactures many original laser components. The 12th sitting was done on 21-05-2013 with Q switched Nd-YAG laser. As per IADVL guidelines of care, test patch is not recommended as a mandatory requirement and the Opposite Party has 9 years of experience in using the LYRAi laser and understand well the response to various fluencies in the population. It is beyond doubt that 100 J/cm2 is a safe and recommended fluence with the LYRAi laser and was used with the only intention of giving better results to the patient when she had partial response with 50 or 80 J/cm2. She was also prescribed Eflornithine cream between laser treatments to further improve the results. There could be differences in fluencies and safety in Nd-YAG laser machines manufactured by different companies. It may be observed in the study by Dr.Carie T Chui that 100-130 J/cm2 was used with LYRAi laser by Laserscope whereas 50-60 J/cm2 was used with CoolGlide laser by Altus. Both these lasers are long pulsed Nd-YAG lasers. It is important to understand that longer pulse duration of laser increases the safety of the treatment as also mentioned in the Laserscope laser hair removal treatment guidelines. If 100 J/cm2 was high the Complainant should have got blisters all over the treated areas of upper lip and chin whereas she developed blisters (vesicles) at only 2 to 3 small areas. Blisters (vesicles) if developed generally resolved with treatment without scar formation. Some people have inherent tendency to develop keloids, which cannot be predicted by the physician. The Complainant did not have past history of keloid tendency. It is argued that the Opposite Party followed standard guidelines and has wide experience and expertise in treating different skin conditions with various lasers for the last 9 years. Hence, the opposite party prayed for dismissal of the complaint.
5. In proof of the complainant's case, she has filed her evidence affidavit and got Exs.A1 to A13 marked. The opposite party has filed her affidavit evidence as RW1 and the affidavit evidence of Dr.A.Vilas as RW2 and got Exs.B1 to B4 marked.
6. The District Forum after considering the material available on record, allowed the complaint bearing CC No.661 of 2013 by orders dated 23.04.2015 granting the reliefs, as stated in paragraph No.1, supra.
7. Aggrieved by the said decision, the opposite party preferred the appeal contending that the Dist. Forum did not appreciate the facts in correct perspective. The District Forum ought to have seen that the complainant failed to establish her case for fixing the liability against the opposite party. The complainant was given treatment as per her skin's type which is clearly mentioned in the case sheet and selected the settings for the laser treatments as per the manufacturer guidelines of treatment. The complainant developed a side effect of laser treatment in spite of following all the standard accepted medical guidelines and there is no negligence on the part of the opposite party. Hence, the opposite party prayed to allow the appeal and dismiss the complaint.
8. Counsel for the appellant and the respondent party in person present and were heard. Both parties have filed their respective written arguments.
9. The point that arises for consideration is whether the impugned orders as passed by the District Forum suffer from any error or irregularity or whether they are liable to be set aside, modified or interfered with, in any manner? To what relief.
10. It is not in dispute that the Complainant had approached the Opposite Party clinic for removal of hair on her chin and upper lip and the opposite party informed that 10-12 sittings are required for the treatment. It is also not disputed that in view of the side effect the complainant developed blisters on her face.
11. On the other hand the counsel for the appellant/opposite party would contend that as there was no satisfactory improvement when in 9th and 10th sittings fluency of 80J per square centimeter was given, the opposite party increased the fluency to 100 J per square centimeter and again in 11th sitting the treatment was repeated with the same fluency on 28.01.2013. In the course of such treatment the complainant developed blisters. If 100 J/cm2 was high the complainant should have got blisters over the treated areas of upper lip and chin whereas she developed blisters at only 2 to 3 small areas. It is also contended that some people have inherent tendency to develop keloids which cannot be predicted by the physician.
12. The complainant has not produced any expert evidence to prove firstly that the opposite party used high energy for longer duration due to which she developed blisters. Secondly that there is any negligence on the part of the opposite party in treating the complainant.
13. The fluency as mentioned in the brochure of Laser Hair Removal and PF Test Spot Parameters Lyra Series Lasers, a copy of which has been produced by the opposite party as Ex.B1, suggests similar fluences and increase in fluence. The record produced by the MediDerma Super Specialty Skin & Laser Clinic shows that initially the fluency of 50J was prescribed for the sitting on 05.06.2010, 10.07.2010, 21.08.2010, 02.10.2010, 10.11.2010 and 18.02.2011 and on 13.06.2011 it was 2.5 and again on 24.08.2011 it was 50J. Thereafter the fluency was increased to 80J on 17.11.2011 and then to 100 J on 13.02.2012 and after that it was reduced to 2.5 on 28.01.2013 and 21.05.2013. 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. It therefore, cannot be said if the fluency of 100J/cm2 was not required and the blisters were caused due to that reason. In fact the fluency was raised systematically to treat the unwanted hair. It is also to be noted that as per the Standard Guidelines of Care: Laser and IPL Hair Reduction by Rajesh M.Buddhadev, it is mentioned at the caption of Preprocedure Work-up that " a test patch is not feasible in all cases and hence, is not to be recommended as a mandatory requirement. It may be considered in selected cases such as a nervous and unreliable patient with unrealistic expectations". There could be differences in fluencies and safety in Nd-YAG laser machines manufactured by different companies. As per the study of Dr.Carie T Chui that 100-130 J/cm2 was used with LYRAi laser by Laserscope whereas 50-60 J/cm2 was used with CooGlide laser by Altus. Both these lasers are long pulsed Nd-YAD lasers. As mentioned in Lasercope laser hair removal treatment guidelines, the longer pulse duration of laser increases the safety of the treatment.
14. It is also to be observed that the complainant gave her consent by signing on the consent form and this fact also not denied by the complainant. In the consent form it is also mentioned the need for multiple laser assisted hair removal treatments and also the possibility of side effects and risks involved in the said procedure. It is also there that if anything goes wrong during the said procedure, the patient may be given any emergency treatment best suited to him/her, without asking for him/her prior permission.
15. It may be mentioned for the sake of repetition that there is no expert evidence produced by the complainant to prove that the appellant/opposite party treated her with high energy and longer duration than usual resulting in blisters. Since this is a known side effect of the laser hair removal, the opposite party could not be held liable for it and the complainant was expected as know the same and undertook the treatment with open mind that this side effect is likely to happen. There is therefore no deficiency in service on the part of the opposite party in this respect. . The frequency prescribed by the doctor was within the set limits. Thus there was no negligence of the doctor in that respect.
16. In case of Kusum Sharma and others, Vs. Batra Hospital, I (2010) CPJ 29 (SC) the Hon'ble Apex Court culled out the following principles: 4 Negligence is the breach of a duty exercised by 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.
ii. Negligence is an essential ingredient of the offence. The negligence to be established by the prosecution must be culpable or gross and not the negligence merely based upon an error of judgment.
iii. The medical profession is expected to bring a reasonable degree of skill and knowledge and must exercise a reasonable degree of care and competence judged in the light of the particular circumstances of each case is what the law requires.
iv. Medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field.
v. In the realm of diagnosis and treatment there is scope for genuine difference of opinion and one professional doctor is clearly not negligent merely because his conclusion differs from that of other professional doctor.
vi. The medical professional is often called upon to adopt a procedure which involves higher element of risk, but which he honestly believes as providing greater chances of success for the patient rather than a procedure involving lesser risk but higher chances of failure. Just because a professional looking to the gravity of illness has taken higher element of risk to redeem the patient out of his/her suffering which did not yield the desired result may not amount to negligence.
vii. Negligence cannot be attributed to a doctor so long as he performs his duties with reasonable skill and competence. Merely because the doctor chooses one course of action in preference to the other one available, he would not be liable if the course of action chosen by him was acceptable to the medical profession.
viii. It would not be conducive to the efficiency of the medical profession if no Doctor could administer medicine without a halter round his neck.
ix. It is our bounden duty and obligation of the civil society to ensure that the medical professional are not unnecessary harassed or humiliated so that they can perform their professional duties without fear and apprehension.
x. 5 F.A. No. 295-08The medical practitioners at times also have to be saved from such a class of complaints who use criminal process as a tool for pressurizing the medical professionals/hospitals particularly private hospitals or clinics for extracting uncalled for compensation. Such malicious proceedings deserve to be discarded against the medical practitioners.
xi. The medical professionals are entitled to get protection so long as they perform their duties with reasonable skill and competence and in the interest of the patients. The interest and welfare of the patients have to be paramount for the medical professionals."
17. Basing on the above guidelines, the onus to prove medical negligence lies on the complainant. Mere averment in complaint is not evidence. As held by the Hon'ble Supreme Court in case of C.P.Sreekumar (Dr), MS (Ortho) Vs. S. Ramanujam, (2009) 7 Supreme Court Cases 130. Referring the decision of Hon'ble Apex court in the case of Jacab Mathew case (2005) 6 SCC 1, the Hon'ble Apex Court adopted the test laid down in Balam vs. Friern Hospital Management Committee (1957) I WLR 582, in which it has been observed as follows:-
"...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."
18. The appellant/opposite party also filed judgment of the Hon'ble National Commission in S.M.Babar Hayat Quadri vs Dr.A.A.Hai reported in 2016(2) CPR 462 (NC) wherein the National Commission held that when a Surgeon adopted course of treatment acceptable in medical text, allegation levelled against doctor of negligence is not established and rejected the claim of the complainant. .
19. In view of the above decisions of the Hon'ble Supreme Court and the National Commission, in the present case also, as already point out above, except the bare averment of the complainant that the opposite party committed deficiency in service there is no evidence to substantiate the same. She has also not made any efforts to file any affidavit of any other doctors who are expert in the particular field so as to consider the evidence as expert evidence. Thus the complainant has failed to discharge her onus proving medical negligence on the part of opposite party as alleged by her.
19. In view of the above discussion, we are of the opinion that there was no medical negligence or deficiency in service on the part of the opposite party. Therefore, the appeal deserves to be allowed by setting aside the order of the District Forum. The point framed at para no.9 is accordingly answered.
In the result, the appeal is allowed by setting aside the impugned order of the District Forum. Consequently, the complaint is dismissed. There shall be no order as to costs.
PRESIDENT MEMBER 24.08.2017 [HON'BLE MR. JUSTICE B. N. RAO NALLA] PRESIDENT [HON'BLE MR. Sri. PATIL VITHAL RAO] JUDICIAL MEMBER