| Final Order / Judgement | CONSUMER DISPUTES REDRESSAL COMMISSION-VII DISTRICT: SOUTH-WEST GOVERNMENT OF NCT OF DELHI FIRST FLOOR, PANDIT DEEP CHAND SHARMA SAHKAR BHAWAN SECTOR-20, DWARKA, NEW DELHI-110077 CASE NO.CC/140/11 Date of Institution:- 13.05.2011 Order Reserved on:- 21.03.2024 Date of Decision:- 09.05.2024 IN THE MATTER OF: Ms.Boney Darang D/o Mr. T. Tarang R/o Q#12, K.B. Commercial Complex, Hotel Aane, Bank Tinali, Itanagar-791111 .….. Complainant VERSUS - Dr. Ajay Kashyap
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2A/2, Taj Apartments, Rao Tula Ram Marg, R.K. Puram, Sector-12, New Delhi – 22 - United India Insurance Company Ltd.
Capital Cinema Building, Opp. G.P.O. VidhanSabhaMarg, Lucknow - 226001 .…..Opposite Party Per Dr.HarshaliKaur, Member - The Complainant approached the OP-1doctor to get treatment for her facial freckles andremove them. Assured by OP-1 that he was competent and had the best experience and latest technology to carry out treatments such as laser treatment, chemical peels, Botox, fillers, etc., for aesthetic enhancement of the face and body the Complainant met with OP-1 doctor at the Medspaclinic on 28.12.2010.
- The Complainant alleges that she requested OP-1to give her laser treatment to remove the freckles on her face. However, OP-1 convinced her to get a chemical peel treatment instead of laser treatment as it was a safe and easy process without any side effects. She was assured that it was the most suitable treatment for her skin condition/type. The Complainant was given the treatment after OP-1 informed her that after the treatment, her freckles/marks would first turn red and then brown before finally disappearing in 2-3 weeks. No implication or side effects were intimated to the Complainant that may arise after the said treatment.
- On the same day of the consultation with OP-1,i.e. 28.12.2010, the Complainant paid Rs.11,120/- towards the consideration amount for the said treatment. OP-1 then performed the procedure/treatment on her. Annexure-A-4is the receipt issued to her for the said treatment by the clinic.
- The Complainant states that after 2-3 days of the chemical peel treatments, spots/marks developed on her face without any improvement of her skin condition, as assured by OP-1. She also felt a burning sensation and redness on her face. Worried about the marks on her face, the Complainant vide emails dated 22.01.2011 and 24.01.2011(Annexure-A-5 Colly) approached OP-1 regarding treatment for improvement of her skin condition. But to her shock, OP-1 ignored all the emails sent by the Complainant.
- After repeated telephone calls, OP-1 prescribed two ointments, resulting in dryness, scaling, and burning skin. When she again complained to OP-1, another ointment was prescribed,which also did not alleviate her skin condition, which was deteriorating each day. The condition of the Complainant'sskin became worse than when she had approached OP-1. She has annexed the photographs of her facebefore the treatment by OP-1 and after the chemical peel treatment was done by OP-1 as Annexure-2 and Annexure-A-3 colly. The Complainant further states that the condition of her skin and the marks on her facebecame so pronounced that she was under severe mental stress and trauma and felt unable to go to any public place.
- Aggrieved by the professional negligence of OP-1,the Complainant issued a legal notice dated 08.02.2011 to OP-1(Annexure-A-6 Colly),which was duly served,but OP-1 neither replied to the legal notice nor addressed the Complainant's grievance. Left with no other option, the Complainant filed the present complaint under section 12 of the Consumer Protection Act, 1986, alleging deficiency in service on the part of OP-1 to perform the treatment on the Complainant without taking due care and precaution, resulting in deterioration of her skin condition which has not healed even after three months as alleged by the Complainant.
- Further, the Complainant was not informed about the side effects of the chemical peel treatment performed on her instead of the laser treatment that she had wanted to opt for her skin condition. The Complainant, therefore, prays for direction to the OP-1 to pay a sum of Rs.5 lakh towards compensation for the monetary loss, acute mental pain and agony suffered by her, along with Rs.20,000/- towards the cost of litigation.
- On notice, OP-1 filed theirreply with the preliminary objection to the notice sent to them by this Forum without first referring the matter to a doctor or Committee of doctors specialised in the field relating to which medical negligence is attributed and only after receiving the report from the doctor or Committee of doctor a prima facie case of medical negligence should be considered, and notice should be sent to the doctor/hospital thereafter.
- Denying any negligence in the present complaint, the OP-1 prays for the dismissal of the present complaint,stating in his reply that the Complainant had a lot of pigmented areas on her skin and moles in addition to freckles on her face. Hence, on 28.12.2010, without giving any assurance as alleged by the Complainant, OP-1 agreed to provide the chemical peel treatment sought by the Complainant herself for the pigmentation on her face. She was made aware of the risks, complications, and side effects of the chemical peel treatment, and only after that was a superficial 11% TCA PEEL decided upon.The Complainant insisted on starting the treatment on the same day of the consultation.
- OP-1 admits that no treatment is devoid of possible side effects, and skin problems are not common with these peels as they cause minimal inflammation and are safe for all skin types. The chemical peel treatment lasted only a few minutes, and the peel was kept on for 90 seconds. The Complainant did not visit OP-1 for follow-up, as is evident from the documents annexed by the Complainant.
- She was advised to strictly adhere to the treatment suggested by OP-1 after the chemical peel treatmentand apply the ointment as prescribed. Inserts and instructions were present in the tubes prescribed after the treatment.Their usage was to be stopped in case of any reaction, and a physician was to be consulted if any reaction occurred.
- OP-1 felt that the Complainant did not follow the treatment or heed the advice of OP-1, due to which her skin condition did not improve.On receiving her emails and calls, OP-1 allegedly advised her to stop the ointments or any creams she was using and consult a physician, which she did not do. Nor did she visit OP-1 for any follow-up appointments. Hence, no professional negligence can be made against OP-1.
- OP-1, alongwith the reply, also filed an application to implead United India Insurance Company as he was professionally indemnified by them as OP-2. The application of OP-1 was allowed by this Forum vide order dated 23.11.2012. The Complainant filed the amended memo of the parties, after which OP-2 filed their reply stating that the Complainant had not prayed for any relief from OP-2. Thus, OP-2 is only a Performa party who had issued policy no.082401/46/09/35/0000431 in favour of OP-1,insuring risk and indemnifying the OP-1 for only one accident during the policy period, which extended from 28.04.2009 to 27.04.2010.
- The Complainant filed her rejoinder qua OP-1 and 2 separately, and her affidavit to be read as evidence reiterating the averments made in her complaint. OP-1 filed his own affidavit in evidence,and OP-2 was proceeded ex-parte when OP-2 neither appeared nor filed their affidavit in evidence vide order dated 05.11.2015. The Complainant and OP-1 filed their written arguments, and the arguments of OP-1 were heard withthe liberty to the Complainant to address oral final arguments within 5 days which the Complainant chose not to avail of. Hence, the order was reserved.
- We have carefully perused the documents filed by the contesting parties and have gone through the facts and circumstances ofthe present complaint.
- We find that the Complainant, desirous of getting anaestheticfacial treatment,approached OP-1 at the Medscape Clinic for laser treatment of her freckles on 28.12.2010 after having researched about the clinic through their brochures and webpage(Annxuure-A1 Colly).
- The Complainant consulted with OP-1 regarding the best treatment for reducing her freckles, and a chemical peel treatment was suggested instead of the laser treatment she allegedly initially had desired. Believing in the OP-1 assurances, the Complainant paid the consideration amount of Rs.11,120/-for the treatment on 28.12.2010 itself and has also annexed the invoice for the said payment as Annexure-A-4.
- The Complainant alleges that she was not apprised of the complications or side effects of the treatment performed on her. Therefore, after 2-3 days, when she felt a burning sensation on her face, and the marks on her face became more pronounced and darker, she contacted OP-1 through emails dated 22.01.2011 and 24.01.2011 seeking advice to improve her skin condition. On using the ointment and cream advised by OP-1, the Complainant's skin worsened,and she, therefore,underwent severe stress and mental agony. Unable to get any relief from OP-1, the Complainant issued a legal notice dated 08.02.2011(Annexure-A-6 Colly) to no avail.
- OP-1, in his reply,denied any professional negligence and clarified that it was the Complainant who sought the chemical peel treatment. She did not follow the advice of OP-1,which she was supposed to adhere to strictly. Further, despite being urged to see a physician when the condition of her face deteriorated, the Complainant chose not to do so.
- OP-2 is ex-parte and was impleaded by OP-1 as OP-2 is the professional indemnifier of OP-1 and a performa party.
- Before deciding the complaint on merits, we feel it prudent to clarify the preliminary objection raised by OP-1 regarding issuing notice to OP-1 before referring the matter to a competent committee of doctors for an expert report.
- InV KishanRaovs. Nikhil Super Speciality Hospital and Anr. (2010) 5SCC 513, it is held by the Apex Court as below:
"it is to the Consumer Forum to decide whether any expert evidence is required to prove the medical negligence alleged by the Complainant and it may not be necessary in many cases where the negligence is apparent and the principal of res ipca loquitur res ipca applies to such cases. It was further held that before forming an opinion that expert evidence is required, the Forum must reach a conclusion that the case is complicated enough to require the opinion of an expert or that the facts of the case are such that it cannot be resolved by members of the Forum without assistance of experts. The Bench held that decision in Martin F. D'souza v. Moh'dIshfaquw, reported in [(2009) 3 SCC 1] cannot be treated as a binding precedent and the direction in the said judgment that the Consumer Fora and Criminal Courts should get the opinion of a competent Doctor or Committee of Doctors and notice should be issued to Respondent Doctor only if a competent Doctor or Committee opines that there is prima facie proof of medical negligence, is contrary to decisions of larger Bench of the Supreme Court." Hence, expert opinion in the present complaint was neither called for nor did OP-1 press for the same. - In our view, the Complainant sought professional help from OP-1 to remove the freckles on her face, confident that he would provide her with safe and cautious treatment for her skin condition. She thusvisited OP-1 for the appropriate treatment of her skin condition.
- OP-1 performed the chemical peel treatment on the Complainant's face to reduce her freckles. Freckles result from ultraviolet rays on the skin, which is inherently susceptible or sensitive,and on the spot, the pigment-producing cell becomes more active because of the action of the light. When exposure to light is reduced, the freckles get lighter. Chemical peel treatment, also known as chemexfoliation or derma-peeling, uses a toxic chemical on the skin in a controlled manner, making the skin peel and allowing new skin to replace it. This treatment can be used on the face, neck, and hand regions to reduce fine lines under the eyes and around the mouth, to treat wrinklescaused by sun damage, and to reduce age spots, freckles, etc. The treatment conducted by OP-1 was superficial 11% TCA Peel, and he states that he informed the Complainant regarding the side effects and complications of the treatment, which is usually very safe. He, however, further states in his testimony that no procedure is without some unforeseen complications that can arise, and hence, he cannot be held liable for the Complainant's negligence and laxity in following his advice or
- The bald statement made by OP-1 is not corroborated with anyskin evaluation report or medical history taken before performing any procedure, nor has OP-1 filed on record any record of a patch test or sensitivity test that he would surely have conducted before performing a treatment on the Complainant's face. The signed consent form is also not on record, wherein the implications, side effects and complications would have been explained to the Complainant for reasons best known to him.
- OP-1, instead of filing the aforementioned documents to show that he took due care and caution before he performed the chemical peel on the Complainant's face, has simply made bald statements, passing the blame on to the Complainant for not following his advice,assuming she used some creams without any cogent proof.
- The statement of OP-1, as made in his affidavit in Para no.19,filed to be read as evidence that when the Complainant called the deponent regarding the redness on her face and even the emails sent by her, she was immediately contacted and asked to see the physician and either to see the deponent it seems that she started applying night creams which were for later use and she was strictly advised not to use them at this time.
- This statement is enough to show that the OP-1 knew that his treatment had caused a side effect, which the Complainant had also informed him of through her emails.Instead of taking any action to resolve her issue, OP-1 assumes that the redness and deteriorating skin condition were due to her applying night creams without any proof of the same, and it is mere conjecture on the part of OP-1.
- Hence, in the absence of any cogent evidence to show that OP-1 took due care and caution before performing the treatment on the Complainant's face nor explained the side effects and complications that could occur if she took the treatment left the Complainant to fend for herself when her skin condition deteriorated and she developed dark spots on her face which were not healing.
- OP-2 is the professional indemnifier of OP-1 impleaded by OP-1 and is thus only a performa party. The Complainant has not sought any relief from OP-2.
- In light of the discussion above, we allow the complaint and direct OP-1 through OP-2, who is ex-parte, to refund the amount of Rs.11,120/-to the Complainant for the failed treatment and Rs.20,000/- for causing her physical and mental pain and torture along with Rs.5,000/- as litigation cost.
- A copy of this order is to be sent to all the parties as per rule.
- File be consigned to record room.
- Announced in the open court on 09.05.2024.
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