State Consumer Disputes Redressal Commission
Dr. J.L. Gupta vs Neetu Tyagi, on 11 August, 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: 11-08-2008 (1) Appeal No. FA-456/2006 (Arising from the order dated 28-04-2006 passed by District Forum (East), Saini Enclave, Delhi in complaint case No. 1035/05) Dr. J.L. Gupta, -Appellant S/o Sh. Hira Lal, Through R/o B-90, Saraswati Vihar, Ms. Rajni Ohri Lal, Delhi-92. Advocate. Versus 1. Ms.Neetu Tyagi, -Respondent No.1 D/o Sh. Ashok Tyagi, Through R/o D-13, S-1, Dilshad Colony, Mr. P.N. Mathur, Delhi. Advocate. 2. Dr. S.K. Gupta, -Respondent No.2 Holy Child Nursing Home, Through C-43/44, East Krishan Nagar, Mr. Nirmal Chopra, Opposite Swaran Ciinema, Advocate. Delhi. (2) Appeal No. FA-463/2006 (Arising from the order dated 28-04-2006 passed by District Forum (East), Saini Enclave, Delhi in complaint case No. 1035/05) Dr. S.K. Gupta, -Appellant Holy Child Nursing Home, Through C-43/44, East Krishan Nagar, Mr. Nirmal Chopra, Opposite Swaran Ciinema, Advocate. Delhi. Versus 1. Ms.Neetu Tyagi, -Respondent No.1 D/o Sh. Ashok Tyagi, Through R/o D-13, S-1, Dilshad Colony, Mr. P.N. Mathur, Delhi. Advocate. 2. Dr. J.L. Gupta, -Respondent No.2 S/o Sh. Hira Lal, Through R/o B-90, Saraswati Vihar, Ms. Rajni Ohri Lal, Delhi-92. Advocate. 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) On account of medical negligence causing further damage to the face of the respondent after plastic surgery, the appellant has been held guilty for medical negligence by the District Forum vide impugned order dated 28th April 2006 and directed to refund Rs. 33,000/- towards consideration charged by the appellants and Rs. 50,000/- as compensation for mental agony and Rs. 5,000/- as cost of litigation.
2. Feeling aggrieved the appellant has preferred this appeal.
3. Allegations of the respondent leading to the impugned order, in brief, are that respondent was having scars on her face and she wanted plastic surgery on her face so that she may be relieved of scars on her face.
She consulted respondent No.2 who assured that scars on her face would be removed or eliminated by way of plastic surgery. She was admitted on 17-08-2005 by respondent No.2 in his hospital/Nursing Home i.e. Holy Child Nursing Home. Appellant conducted plastic surgery on her face on 18-08-2005. The plastic surgery was done by appellant negligently or carelessly. This negligent act of appellant increased the disfigureness on her face. The respondent annexed photographs of period prior to surgery and after surgery. The enhancement in ugliness on her face caused great mental and physical agony on the respondent. The respondent prayed for directions to the appellants to pay compensation to the tune of Rs. 14,00,000/- , cost and compensation.
4. As regards appellant respondent No.2-Dr. S.K. Gupta who was proprietor of Holy Child Nursing Home took the plea that he had never assured complete relief as he is not an expert in the field of plastic surgery and it was only the appellant-Dr. J.L. Gupta who had treated the respondent and he has only provided the operation theatre and nursing facilities, which he did as per medical standard.
5. The stand of the appellant-Dr. J.L. Gupta, who conducted the surgery is that he only conducted scars revision surgery not plastic surgery. Disfigureness on the face was due to not following the surgery instructions of the appellant. The respondent never contacted him after 02-09-2005 and that the pros and cons of scars revision surgery were informed to the respondent and her relatives. Thus he denied any deficiency in service on his part rather shifted the load of blame to respondent No.1.
6. Though the respondent No.1 had filed photographs prior to surgery and post surgery but still on oral request of the Shri Lal, counsel for Dr. J.L. Gupta the respondent No.1 was directed to appear in person for first hand impression of the face. According to District Forum the counsel Shri Lal could not deny further disfigurement of the face of the respondent No.1. The District Forum even otherwise impliedly inferred the negligence in view of the preliminary objections that the respondent No.1 did not turn up for further review after 02-09-2005.
7. However, aforesaid finding of the District Forum have been assailed by the learned counsel for the appellant firstly on the ground that extensive note prepared by him clearly show that plastic or alleged scar revision was done in respect of solitary scar revision and not for multiple scar revision. In this regard medical literature was also relied upon by the learned Counsel for the appellant for explaining disfigureness of the face. According to the counsel this scar can never be removed completely though plastic surgery may often improve appearance of scar making it less obvious through the injection or application of certain steroid medications or through surgical procedures known as scar revisions. This observation has been made in literature Home Patients & Consumers :
Procedures: Reconstructive Procedures : Scar Revision. Relevant observations are as under:-
Scar Revision If you are considering Scar Revision ..
Scars whether they are caused by accidents or by surgery are unpredictable. The way a scar develops depends as much on how your body heals as it does on the original injury or on the surgeons skill.
Many variables can affect the severity of scarring, including the size and depth of the wound, the blood supply to the area, the thickness and colour of your skin, and the direction of the scar. How much the appearance of a scar bothers you is, of course, a personal matter.
While no scar can be removed completely, plastic surgeons can often improve the appearance of a scar, making it less obvious through the injection or application of certain steroid medications or through surgical procedures known as scar revisions.
If you are considering scar revision, this will give you a basic understanding of the most common types of scars, the procedures used to treat them and the results you can expect. It cant answer all of your questions, since a lot depends on your individual circumstances. Please be sure to ask your doctor if there is anything about the procedure you dont understand.
Making the Decision Many scars that appear large and unattractive at first may become less noticeable with time. Some can be treated with steroids to relieve symptoms such as tenderness and itching. For these reasons, many plastic surgeons recommend waiting as long as a year or more after an injury or surgery before you decide to have scar revision.
If you are bothered by a scar, your first step should be to consult a board-certified plastic surgeon. The surgeon will examine you and discuss the possible methods of treating your scar, the risks and benefits involved and the possible outcomes. Be frank in discussing your expectations with the surgeon, and make sure they are realistic. Dont hesitate to ask any questions or express any concerns you may have.
Insurance usually doesnt cover cosmetic procedures. However, if scar revision is performed to minimize scarring from an injury or to improve your ability to function, it may be at least partially covered. Check your policy or call your carrier to be sure.
All Surgery Carries Some Uncertainty and Risk While scar revision is normally safe, there is always the possibility of complications. These may include infection, bleeding, a reaction to the anesthesia, or the recurrence of an unsightly scar.
You can reduce your risks by choosing a qualified plastic surgeon and closely following his or her advice, both before surgery and in follow-up care.
Keloids Scars Keloids are thick, puckered, itchy clusters of scar tissue that grow beyond the edges of the wound or incision. They are often red or darker in colour than the surrounding skin.
Keloids occur when the body continues to produce the tough, fibrous protein known as collagen after a wound has healed.
Keloids can appear anywhere on the body, but they are most common over the breastbone, on the earblobes and on the shoulders. They occur more often in dark-skinned people than in those who are fair. The tendency to develop Keloids lessens with age.
Keloids are often treated by injecting a steroid medication directly into the scar tissue to reduce redness, itching, and burning. IN some cases, this will also shrink the scar.
8. As to the allegation of further disfigurement of the face the learned counsel for the appellant has produced photographs of respondent No.1. Photographs 1 to 5 are prior to the surgery and the rest are post surgery. According to the learned counsel the photographs themselves show a definite improvement in the scar. Appellant also filed copy of copy of IMA, East Delhi Bulletin for the month of February-March 2006 in which views of Vishwanath Bharti, Plastic Surgeon were published who opined that age of scars determines the optimal time of scars revision and further that scar should be six to twelve months old before revision can be considered, though it is safe to assure that scars improves with time upto the second year of injury.
9. However, the District Forum referred to certain opening lines of case sheet filed by the appellant which are to the following effect:-
The patient complained of several scars on the face following injury. The patient did not give much details of the scars and appeared quite demoralized unhappy having developed these ugly scars all over the face.
And the District Forum came to the conclusion that the appellant did not try to ascertain the age of the scars and no precautions were taken to define the nature of individual scars.
10. 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
11. 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?
12. Admittedly the appellant is a skilled person and possessing requisite qualifications for conducting the plastic surgery and scar revision method. There is no doubt that as per medical literature produced by the appellant no scar canbe removed completely and plastic surgeons can often improve the appearance of a scar, making it less obvious through the injection or application of certain steroid medications or through surgical procedures known as scar revisions. But instead of improving the appearance of the scar if it is worsening the inference of some lapse on the part of the Surgeon cannot be ruled out.
13. As regards the joint or several liability of any treating doctors and other staff of any Hospital or Nursing Home, we are of the view that in cases of medical negligence, Hospital or the Nursing Homes or Medical Centres alone are liable, firstly because whenever any patient lands in any Hospital or Nursing Home, Medical Centre, his direct relationship of consumer for hiring or availing the medical services is with the said Hospital or Nursing Home or medical Centre and not with the treating Doctors and other personnel, secondly, the entire consideration in the form of expenses including the component of charges or fees of the operating Doctor and other junior Doctors and staff engaged in pre or post operative care or any other kind of care are paid to the Nursing Home or Hospital or Medical Centre directly and thirdly that there privity regarding totality or compendium of various services including medical and those of para staff and other conveniences with the hospital and not with the operating or treating or attending Doctors, nurses and other staff.
14. Thus if a patient suffers due to the medical negligence or carelessness of Doctors and staff of the Hospital or Nursing Home or Medical Centre whose services he avails against consideration, said Hospital or Nursing Home or Medical Centre alone is liable to compensate the patient as to loss or injury suffer by him and Nursing Home or Hospital or Medical Centre has independent remedy to take any kind of action against such doctors or staff but no doctor or staff has a joint or several liability qua the patient.
15. Similarly Nursing Homes or Medical Centres or Hospitals alone are liable for the acts of omission or commission or medical negligence of visiting or consulting Doctors as the patient has no direct contract with such Doctors and services of such Doctors are availed by the Hospital or Nursing Home or Medical Centre and not the patient.
16. Any patient or person has a right to claim compensation for the sufferings suffered by him from the individual Doctor or doctors with whom he has direct contract either at his clinic or at any Nursing Home or Hospital or Medical Centre whose infrastructure facilities may be availed by such Doctors.
17. However, in our view, the sole liability was that of the Holy Child Nursing Home as respondent No.1 had a direct contract of consumer and service provider and not with Dr. J.L. Gupta whose services were availed by the Nursing Home.
18. Taking over all view of the matter, qualification of the doctor as well as multiple scars on the face of respondent No.1, consideration made by the respondent and the mental agony suffered by her, we deem that lump sum compensation of Rs. 50,000/- shall meet the ends of justice, which shall include cost of litigation also.
19. In the result appeal is partly allowed by reducing the compensation to Rs. 50,000/- only, which shall be paid by respondent No.2, the Nursing Home alone.
20. Payment shall be made within one month from the date of receipt of this order.
21. Appeal is partly allowed to the aforesaid extent.
22. FDR/Bank Guarantee, if any, furnished by the appellant be returned to the appellant forthwith after completion of due formalities.
23. A copy of the order as per the statutory requirements be forwarded to the parties free of charge and also to the concerned District Forum and thereafter the file be consigned to Record Room.
24. Announced on 11th August, 2008.
(Justice J.D. Kapoor) President (Rumnita Mittal) Member jj