For the Complainant                           -Ms. Pritha Basu, Advocate

For the OP 1                                       -  Mr. Sutanu Karmakar, Advocate

FINAL ORDER/JUDGEMENT

SHRI ASHOKE KUMAR GANGULY, MEMBER

This is a complaint case under section 12 of the C.P. Act, 1986.

The fact of the case in brief is that the Complainant was suffering from partial baldness due to massive hair fall and went to the OP 1, Dr. Arindam Sarkar, Specialised Surgeon of Plastic and Cosmetic Surgery on 26.09.2013 for consultation. OP 1 convinced the complainant to undergo hair transplantation as the necessary treatment. The complainant again on 30.09.2013 visited the chamber of the OP 1 and was advised to take some drugs and some blood test also. The complainant was also advised that 800 grafts should be done in order to perform the hair transplant on the affected scalp. The cost negotiated for the treatment was Rs.35,000/-  which was paid by the complainant in cash and no money receipt was issued by the OP 1. On 08.10.2013 hair transplantation was done by the OP-1 in the Clinic of the OP-2. The hair grafting of right side of the scalp was done by the OP-1 but the grafting of left side was done by one staff of the OP-2 Clinic and not by OP-1. After the hair transplantation on 08.10.2013, the OP-1 issued prescription to the complainant. The complainant was not satisfied with the said grafting job. Hair levels were not same in the right and the left side and looks very artificial and missed the aesthetic natural look. Moreover, there were un-natural grafts between two grafted lines. The complainant brought it to the notice of the OP-1 when he was assured that everything would be normal after completion of one year. After two weeks of surgery, the complainant went to the OP-1 to remove the stitches and pointed out that there was a wide donor scar which was concluded as negligible by the OP-1. The OP-1 did not do the Tricophytic Closure on the day of surgery which was a part of hair transplantation. After a lapse of 5 months, the complainant did not find any tiny change and started to gather information on how the transplantation  works. The complainant consulted Dr. Monoj Khanna  for a second opinion on 14.03.2014 and came to know  that 800 grafts were too less for him which should at least 1200 grafts. As per advice of OP-1, the complainant decided to wait for one and a half year to get the desired result. In the end of 2014 due to education purpose the complainant shifted to Bengaluru from West Bengal. Unfortunately, after lapse of one and a half year the complainant did not see any difference  and the condition got worsen. During his stay in Bengaluru the complainant consulted Dr. Venkatram  of Venkatcharmalaya of Bengaluru who suggested  that the hair transplantation was not done correctly and suggested correction treatment including misalignment of left and right side removing grafts from left side by laser hair removal, cobblestoning and pitting in the recipient area treated by factional laser, donors scar by ILSA injections and Keloid laser which all required multiple session. The complainant time and again contacted the OP-1 but by sending emails but the OP-1 never replied to any of his mails and ignored every repeated request of correcting the errors.  The complainant met the OP-1 in June, 2015 but for the corrections but staff of the OP-1 clinic did not entertain the complaint and the OP-1 refused to meet the complainant in person. Finding no other option, the complainant had to undergo correctional treatment from Venkat Charamalaya clinic and had to take more than 10 sittings and paid Rs. 10,000/- for each session. The complainant also incurred expenses towards oral medicine also . As per  submission, laser treatment was necessary to correct the errors made by the OP-1 which was very expensive and the complainant could not afford the same. The complainant sent several communications to OP-1 asking for amicable settlement by way of performing correctional laser treatment but the OP-1 never replied or entertained his communications.  A formal letter dated 06.05.2016 was sent to the OP-1 for amicable settlement but ultimately the  proposal for amicable  settlement did not materialise though there were some Whats app communications in between the parties in the meanwhile.The complainant lodged a complaint on 23.02.2017 in the ‘online consumer help services’ but did not receive any reply. Again the complainant filed a complaint on 09.06.2017 in Swasthya Bhawan.  After lapse of one month, the complainant visited the said office for not getting any response and was told to file a new complaint before West Bengal Clinical Establishment Regulatory Commission. Accordingly, on 28.08.2017 the complainant registered a complaint before said Commission but the said complaint was dismissed as the application of the Act of 2017 is only with respect to cases which have happened after March, 2017.  Thereafter the complainant sent a legal notice on 21.04.2018 to the OP-1 which was replied by the OP-1 through his Advocate vide letter dated 18.05.2018 denying all the allegations in the impugned legal notice. Being aggrieved with the said reply on behalf of OP-1 the complainant has approached this Forum for justice.

The OP-1 has contested the case by filing Written Version contending inter-alia that the complaint case is barred by limitation and allegations of negligence against the OP-1 are false, baseless and devoid of evidence. The OP-1 is a medical surgeon of substantial repute and standing. The hair transplantation was done after detailed consultation with the complainant  and with his consent certificate.  Hairs were grafted following the modern principle of hair grafting. The Trichophypic closure is part of the surgery which was done. Generally, post operative care is one of the vital part of the success of the surgery. Failure to follow post operative care  often does result in complications and the same does not have any connection with the operation procedure and cannot be attributed to the Doctor i.e. OP-1.

On the pleading of the parties, the following points necessarily have come up for determination.

1. Whether there is any deficiency on the part of the OP-1 in the matter of rendering the service.

2. Whether there is any indulgence of unfair trade practice by the OP-1.

3. Whether the complainant is entitled for the relief as prayed for.

Decision with Reasons

All the points are taken up together for the sake of convenience and brevity in discussion.

Both parties have tendered their Evidence on Affidavit. They have filed replies to the questionnaire set forth by their adversaries. They have also submitted their BNAs.

We have travelled over the documents placed on record.

Facts remain that the complainant underwent hair transplantation on 08.10.2013 under the care of OP-1, Dr. Arindam Sarkar at Dr.  B. N. Basu Memorial Clinic being the OP-2. From the available documents it is observed that the complainant had a thorough consultation on 30.09.2013 with the OP-1 in respect of the procedure of the hair transplantation and gave his special consent like-wise:

“I would like to declare that I have been fully explained in my own language which I understand / speak about the process of Hair Transplantation Surgery and its post operative results, any possible complications and its management.  Operation may be done on the general and local anaesthesia. Knowing the above facts, I am hereby giving consent for hair transplantation surgery.”

The above consent was written and signed by the complainant in his own hand on 30.09.2013 which was duly countersigned by the OP-1. From the submissions of the complainant it is understood that the complainant was not satisfied with the said hair transplantation surgery done by the OP 1  and as a consequence consulted another specialist, Dr. Monoj Khanna at 12 Loudon Street, Kolkata -700 017 on 14.03.2014  and thereafter consulted with another Doctor of Venkat Charmalaya at Bengaluru on 27.06.2015 during his stay over there for educational purpose and got  treatment from them during the period from 27.06.2015 to 14.06.2016. Being dissatisfied with the treatment of the OP-1 he filed complaint  to the Director of Medical Education  on 09.06.2017  and thereafter put his complaint to the Secretary, West Bengal Clinical Establishment Regulatory Commission, 32, B B D Bag, Kolkata – 700 001 on 28.08.2017 but no fruitful result was achieved by him. OP-1 has furnished a document under Exhibit-E with the evidence on affidavit  where from it is observed that the complaint of  Mr Aishik Gupta being the complainant here was brought to the notice of Directorate of Health Services, Government of West Bengal, Swasthya Bhawan Salt Lake, Kolkata – 700 091. In the said Exhibit a report of Expert Committee dated 26.12.2018 addressed to the Director of Medical Education , Govt. of W.B., Swasthya Bhawan, Salt Lake, Kolkata is enclosed. On perusal of the said report it appears that the complainant was asked to appear before the Expert Committee on 19.12.2018, 20.12.2018 and finally on 26.12.2018 in connection with his complaint against Dr. Arindam Sarkar being the OP 1 herein this case. But the complainant did not turn up before the Committee and the Committee after due discussion at length concluded with Final Opinion viz. “No proven medical negligence exists in the case as per documents and submissions received by the committee.”  We have perused the Evidence in Chief and questionnaire of the complainant. The complainant has not challenged the said document under Exhibit E submitted by the OP 1 in any of his submission by way of affidavit. Ld. Advocate of the complainant  has argued in her BNA that the complainant  was not aware of the details of the proceedings carried out  before the said committee and could not represent  himself. She has also argued that the complainant is taking steps against the said alleged report of the Expert Committee for setting aside of the same as the same does not reflect the facts and/or law from a proper perspective. As such as on date the above report still stands. The complainant has missed the bus. Ignorance of law cannot be accepted as an excuse.

Under the above facts and circumstances we are of the considered view that the complainant has failed to establish his case in the matter of medical negligence on  the part of the OP 1.

In the result the complaint fails.

Hence,

ORDERED

The complaint case be and the same is dismissed on contest against  the OP 1  and dismissed exparte  against  the OP 2 without any costs.