| Final Order / Judgement | DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II Udyog Sadan, C-22 & 23, Qutub Institutional Area (Behind Qutub Hotel), New Delhi- 110016 Case No.07/2020 Ms. Dimple Fauzdar R/o C-25, Pamposh Enclave First Floor, New Delhi-110048. .…Complainant VERSUS Dr. Monish Kapoor R/o J-18, Near Gurudwara Road Saket, New Delhi-110017. ….Opposite Party Coram: Ms. Monika A Srivastava, President Ms. Kiran Kaushal, Member Present: Adv. Apritam Animesh Thakur along with Adv. Ankita Rawat proxy counsel for complainant. Present: Adv. Rohan Taneja for OP. ORDER Date of Institution:13.01.2020 Date of Order :08.10.2024 President: Ms. Monika A Srivastava Complainant has filed the present complaint seeking payment of Rs.20,00,000,/- on account of actual expense made on medical expenses incurred on treatment, air tickets, hotel bookings, garments, apparels and for pain, mental agony. OP is Dr. Monisha Kapoor. - It is stated that the complainant approached the OP for consultation and cosmetic procedure. Copy of the medical prescription is annexed as annexure-A.
- It is further stated that the OP was of the view that the complainant could get cosmetic procedure intervention in the form of filler and Botox on her cheeks and chin. It is also stated that the complainant raised a concern that she had to attend a marriage of a family friend at Istanbul, Turkey on 01.11.2019 and the complainant had other business engagements at London on 25.10.2019 from where the complainant had to depart at her way to Istanbul, Turkey. Copy of the invitation along with tax invoice of the concerned hotel bookings and flight tickets of London are annexed as annexure-B (colly).
- Complainant paid a sum of Rs.1,64,000/- by way of cash/card further amount of Rs.975/- in cash was paid to the OP for the consultation and cosmetic procedure. It is stated that complainant was reluctant to go for Botox procedure but the OP on 10.10.2019 administered the three units of Dysport injection into her facial muscle over the left side bridge of the complainant’s nose which was too close to the left eye of the complainant and six units near the left eyebrow which was not informed to the complainant during the consultation process.
- It is further stated that OP told the complainant that Botox acts after seven days, subsequently on the evening of 17.10.2019 complainant noticed the opening size of her left eye reduced to 25% to 30% in comparison to the normal right eye.
- When the OP was informed about the condition of the complainant, the OP on 18.10.2019 advised that in order to elevate the effect of Botox, the complainant should take Brufen tables and apply ice pack as it is just an inflammation. It is further stated that despite the cure suggested by the OP the left eye of the complainant kept getting smaller over the course of three days. The copy of the payment receipt made on 10.01.2019 to the OP for the cosmetic procedure is annexed as annexure-C.
- It is stated that after seven days of treatment there was a formation of lump on the complainant’s left eyelid and it became swollen resulting in the closure/contraction of eyelid. When the complainant informed the OP about her condition she was advised follow up visits. The original photographs reflecting the severe condition of the eyes of the complainant are annexed as annexure-D.
- Complainant visited the OP on 22.10.2019 however, the OP instead of rectifying the droopy left eyelids of the complainant and without the complainant’s consent went ahead and administered three units of Dysport injection straight over the muscle of right eyelid and three units Dysport injection on the right eyebrow on the premise and logic that it became necessary to balance both eyes. OP assured the complainant that both the eyes would become normal by 25.10.2019 and the complainant would be able to attend the marriage of the family friend scheduled on 01.11.2019 at Turkey.
- It is further stated that the condition of the eyes of the complainant deteriorated as there was drug induced pain and swelling in lids of both eyes causing severe discomfort and no vision in the right eye due to complete paralysis and closure of the right eyelids. It is stated that OP had failed to diagnose the complications and occurrence of swelling, pain and closure of both the eyes of the complainant even after the follow up treatment.
- It is stated that the complainant as per the schedule proceeded to London on the assurance of the OP that her eyes would become normal by 25.10.2019 however, the condition of the complainant worsened with severe headache, double/blurred vision and dropping eyelids of both her eyes. It is further stated that while she was in London she suffered from excruciating pain and agony and the treatment provided by the OP proved to be a failure considering the eyes in no way balanced as the right eyelid was completely closed. It is stated that OP sought apology from the complainant and told her to return to India on 28.10.2019 and referred her to Ophthalmologist for the severe condition of her eyes. It is further stated that the admission of guilt/failure of procedure of OP was acknowledged in the WhatsApp chat with the complainant which is annexed as annexure-E (colly).
- After returning to India on 29.10.2019 complainant was arranged to meet an eye specialist arranged by the OP who suggested some medicines and assured that her problem would be resolved soon however, even after prescribed medicine nothing worked in complainant’s favour. Copy of the prescription is annexed as annexure-F.
- It is the case of the complainant that the OP has acted in rash and gross negligence manner in performing the Botox procedure. It is stated that complainant had not given any valid consent on 22.10.2019 when the treatment was initiated on the complainant’s right eye. It is stated that OP should have ensured that the Botox only affected the injected muscle and does not spill in the eyelids. It is stated that the injection paralysed the muscle that holds the upper eyelids up thus causing the upper eyelids to drop completely accompanied with excruciating pain and discomfort. In this regard, the legal notice was issued dated 13.12.2019 which is annexed as annexure-G. It is stated that the complainant suffered for eight weeks and has still not recovered completely. It is further stated that the expenses entailed by the complainant on her treatment, futile visit to London, hotel accommodation and business class air tickets were all spoiled and wasted. It is further stated that complainant’s garments which was made specially to attend the family friend’s wedding also got wasted because of the sheer negligence of the OP. Copy of the purchase receipts annexed as annexure-H.
- In her reply, OP has stated that the supporting documents filed by the complainant make it very clear that the complaint is misconceived and there is no cause of action in the averments made. It is stated that the complainant has not approached this Commission with clean hands and has attempted to mislead the Commission. It is stated that consumer complaint against the medical professional has to establish that there was gross negligence on his/her part which the complaint has miserably failed to do. It is stated that negligence cannot be attributed to a doctor so long as he/she performs their duties with a reasonable skill and competence which the OP has done in this case. It is further stated that it is the duty and obligation of the civil society to ensure that the medical practitioners are not unnecessarily harassed or humiliated so that they can perform their professional duties without fear and apprehension.
- It is stated that the complainant and OP have known each other since 2015 when the complainant first approached the OP for the procedure and has thereafter repeatedly approached the OP to get various cosmetic procedures done. Copies of payment receipts for various procedures done by the OP on the complainant since 2015 are annexed as annexure-1 (colly). It is further stated that OP and complainant became good friends due to her visit to clinic of the OP multiple times for her procedures.
- It is further stated that since the inception of her procedures complainant had a single request that she desired to look younger as the same was a pre-requisite of her profession and in lieu of the same various successful procedures were undertaken by the OP and the complainant was extremely satisfied and therefore kept coming back to the OP. It is further stated that complainant taking advantage of the relationship with OP did not pay consultation fee and took discounts for the procedures the citing their friendship and long association. It is further stated that the complainant would make partial payment with a promise to clear the remainder within a few days which would never be cleared by her.
- It is stated that few days prior to 10.10.2019 complainant repeatedly started calling the OP and barged into the clinic of the OP despite there not being any slot for the slated day.The complainant started to create a scene that she wanted to get a cosmetic procedure done on the same date and informed the staff that she had even applied numbing cream and demanded that the OP undertake the procedure on the same day.
- On account of their long association, OP agreed to take the procedure to the all requisites compliances were undertaken prior to the said procedure and since the OP had treated the complainant multiple times since 2015, tests for allergy and rashes/other complications had already been conducted. Since the complainant had applied the numbing cream, the procedure could be undertaken instantly. It is further stated that the complainant did not, at any stage inform the OP that she had to attend wedding/parties in two weeks as she was aware that the OP would have never undertaken the procedure having a strict policy of allowing the patients at least three to four weeks for recovery. It is stated that had the complainant informed the OP, the procedure would not have been undertaken.
- It is stated that complainant was completely aware of the intricacies of the procedure having undertaken similar procedure various times in the past. Notwithstanding, the OP had habit of detailing the side effects/details of the procedure to all her patients irrespective of their past experiences. In fact, OP also gets her clients to sign consent form for the procedure undertaken. In this regard, annexure-2 has been annexed which is a consent form dated 10.10.2019 signed by the complainant which states that she was aware of the procedure and willingly consented for it and also the minor after effects that subsisted post the procedure for a while.
- It is stated that complainant was desirous of removing her bunny lines from her eyes and nose as the same made her look old and for which the OP undertook procedure which was a complete success.
- It is stated that complainant taking advantage of her relations with the OP refused to pay the consultation fee of Rs.2,000/- and had availed tens of consultations without paying any amount. Even for the procedure done on 10.10.2019 she paid 70% to 80% of the actual fee.
- It is stated that after a few days of the procedure, the complainant barged again into the clinic of the OP and started hurling abuses at her in the presence of her staff and clients and claimed that she was in pain and needed to attend weddings/parties from 25.10.2019 in lieu of which her clients had given her advance and feared that she would not be fully healed by that time. OP was shocked to find out that complainant concealed the factum of wedding/events and exchanged certain rash words in the heat of the moment. Thereafter, the OP informed the complainant about the pain killers and application of ice pack.
- It is stated that on 22.10.2019 complainant again requested the OP to take another procedure on her face as the complainant had already applied the numbing cream and came prepared for the procedure. Despite being irritated with the behaviour of the complainant, OP undertook the procedure and to the shock of the OP, complainant stated that she did not have the money to pay to the OP to pay the fee upon her return from London and Turkey. The parties yet again got into the arguments.
- OP, as the matter of practice inform of patients undertaking Botox procedure to not use make up for the next 42 to 72 hours as when the make-up is removed, Botox has a tendency to spread to other areas as well but to the shock of the OP complainant shared her pictures a few days after the procedure with heavy makeup. OP called the complainant and expressed her fears however, complainant informed the OP that she was taking things seriously and asked her not to worry. True copies of photos obtained from the Facebook account of the complainant showing make up within a few days of the procedure and also showing perfectly normal eyes of the complainant are annexed as annexure R-3 (colly).
- It is further stated that complainant in a state of hysteria would repeatedly keep calling the OP claiming to be in extreme pain and stating that her eyelids were dropping despite her photos looking normal. It is stated that OP was unaware of the antics of the complainant of not having any intention to pay the OP and later on blaming the OP through the present vexatious proceedings.
- Complainant, in fact, informed the OP that her employers refused to pay for the wedding/events and that she did not have the funds to travel back to India and pleaded that the OP to fund her travel stating that she would give her money back with interest in a short period of time. OP believing the complainant paid for her ticket from London to Delhi who then visited the OP on 28.10.2019 and the OP recommended certain multi vitamin medication after not finding anything wrong/incorrect in the procedure of the complainant.
- In December, 2019 OP started to realise the intentions of the complainant as she started to blackmail the OP by showing videos wherein she purposely close her eyelids and told that if the OP did not transfer 20,00,000/- in her bank account she would upload the same on social media defaming the OP. It is stated that it is evident that complainant had been feigning her illness in a bid to extort money from the OP.
- It is further stated that complainant prior to the said procedure had mismatched eyes and the procedures undertaken by the OP rectified the said error. During copies of before and after photographs of the complainant obtained from Facebook and Instagram are annexed as annexure-4. The apology reflecting in the WhatsApp chat was made in spur of the moment and does not reflect the character and profession of the OP or that the OP was negligent in the procedure.
- In her rejoinder, it is stated that the pictures filed with the consumer complaint would make it clear and evident that the averments in the reply are contradictory, bundle of lies with no iota of truth. It is stated that on one hand OP has alleged that the complainant had undertaken the procedure for removing of bunny lines and on the other hand OP has made an assertion that the procedure was undertaken to locate the complainant’s mismatched eyes. It is stated that OP has concocted the story to avoid payment of compensation to the complainant for the pain and suffering which she had to undergo as a drug induced negligence of the OP in carrying out duties. It is stated that if the doctor fails to undertake the duties regarding administration of treatment it is breach of duty.
- It is stated that complainant had approached the OP on 10.10.2019 and it was only after consultation, OP was of the view that the complainant could get cosmetic procedure intervention in the form of filler and Botox on her cheeks and chin. The treatment is also corroborated from the consent form which is annexed as annexure-2 with the complaint.
- It is stated that consent was not taken for the treatment of the complainant which is evident from the WhatsApp conversation between the parties to 18.10.2019 to 07.01.2020. It is further stated that the treatment given was irrespective of the concern that the complainant had business engagements at London on 25.10.2019 from where she had depart to Istanbul to attend the marriage of family friend of 01.11.2019.
- It is stated that OP, on her own accord and as per own whims and fancies administered the different drug in the eyes of the complainant without her express consent and that Dysport had a higher tendency of spillage and causing complications. It is stated that OP had been negligent in administering the Dysport injection near the eyes of the complainant without first carrying out any reaction/allergy test. It is stated that no prescription was provided to the complainant prescribing the medicines and medicines were prescribed casually over WhatsApp messages.
- Both the parties have filed their respective evidence affidavits and written arguments. This Commission has gone through the entire material on record. OP has also placed on record literature titled “office based cosmetic procedure and techniques” however, the said literature consists of only one page. It is seen from the record that there is no denial on the part of the OP that cosmetic treatment was given to the complainant and though argued otherwise by the OP, complainant has paid mostly for the procedures. The WhatsApp chat placed on record by both the parties indicate that the complainant faced trouble after her treatment of Botox in her left eye. The WhatsApp chat further indicate that the OP paid for complainant’s return from UK and was regularly in touch with her for the problems that the complainant was facing.
- It is also seen that this cosmetic procedure was opted by the complainant and though advised against it, complainant had applied make up after the procedure undertaken which is evident from the pictures uploaded by her on social media implying that the complainant had contributed to the issue.
- Therefore, this Commission is of the opinion that there is some deficiency on the part of the OP however, since the complainant has contributed to the problem, complainant is not liable to the prayers claimed in entirety. OP is directed to pay a sum of Rs.50,000/-to the complainant on account of bodily pain that the complainant had to undergo. This amount is to be paid within three months from the date of the pronouncement of the order failing which OP would be liable the amount along with the interest @6% per annum.
Copy of the order be given to the parties as per rules. File be consigned to the record room. order be uploaded on the website. | |
