Before the District Consumer Dispute Redressal Commission [Central], 5th Floor ISBT Building, Kashmere Gate, Delhi
Complaint Case No.-93/18.05.2011
Ms. Neetu Lawaria d/o Sh. Jugal Kishore
R/o House No. 3634, Street No. 13,
Regharpura, Karol Bagh, New Delhi-110005 ...Complainant
Versus
OP1 Jessa Ram Hospital
(through its Medical Superintendent)
W.E.A. Karol Bagh, New Delhi-110005
OP2 Dr. Nikhil Sharma, Consultant Dermatologist
C/o Jessa Ram Hospital W.E.A. Karol Bagh,
New Delhi-110005
OP3 United India Insurance Co. Ltd.
Capital Cinema Building, VS Marg, Lucknow
(through its Manager/In-charge)
[Policy No. 082401/46/09/35/00003837
Valid from 16-12-2009 to 15-12-2010 ] ...Opposite Parties
Order Reserved on: 09.02.2023
Date of Order: 01.05.2023
Coram: Shri Inder Jeet Singh, President
Shri Vyas Muni Rai, Member
Ms. Shahina, Member -Female
Inder Jeet Singh
ORDER
1.1. Succinctly, the dispute is that complainant, having a scar mark on her forehead and cheek, went to OP1/ Hospital, where OP2/ Doctor examined her, she was assured that scar mark are totally treatable and will be cured without much expenditure. She had followed all the instructions of treatment and despite payment of huge amount, she was not cured, what to talk of complete cure. There is deficiency of service and unfair trade practice on the part of OP1 and OP2, apart from she was not provided the complete documents record, when so requested. She claims paid amount of Rs. 30,000/- in getting sham treatment, along with interest 18% pa, compensation for Rs. 1,00,000/- for personal loss, harassment and mental agony and litigation cost.
1.2. Whereas, OP2 opposed the complaint vehemently that neither there is any unfair trade practice nor negligence nor deficiency of service on his part, as he provided the necessary treatment diagnosed for, she had also made improvement during the treatment and it was also recorded in the papers, which are filed by the complainant herself. In fact, it was complainant who had not followed the precautions strictly, which have also been recorded in the papers filed by her. She failed to follow up.
1.3. The OP1 filed its detailed reply that OP2 is neither an employee of OP1 but a senior consultant on the panel of OP1. The complainant was treated as private patient by OP2 in his independent capacity, the fees or charges, whatever, were paid by the complainant to OP1, the OP1 had not received any charges from the complainant. There is no document/record issued by the OP1/ Hospital in favour of complainant to be construed that complainant was patient of OP1.
1.4. The pleadings are styled in a way that they are narrative, argumentative and opinion of the parties, therefore, relevant and material facts will be mentioned.
1.5. Initially, the complaint was filed against OP1 and OP2, however, the OP2 in paragraph no. 7 of his reply, names insurance policy from United India Insurance Company vide Professional Indemnity Insurance Policy, consequently by order dated 22.02.2012, the name of OP3/ United India Insurance Co. Ltd. was added to the array of parties. It was also issued notice on complaint.
2.1 The complainant approached OP1/Hospital and OP2 examined the complainant, it was promised that said scar marks are treatable and it will be cured in a month. OP2 was requested to spell out the line and modalities of treatment and approximate cost for treatment, however, it was assured that scar mark will be completely wiped out in a month after treatment but no detail of treatment and expenses was advised. Complainant's brother's signature was obtained as a consent, however, it was not a real consent as modalities were not explained.
2.2 The complainant had followed the advises of treatment meticulously, all medicine and ointments prescribed were also followed with discipline, all precautions, restraints and instructions were also followed as advised by OP2. But there was no sign of mitigation much less any remedial improvement in the condition of complainant as regards the scar marks. It was brought to the knowledge of OP2 but he kept on cajoling the complainant not to discontinue the treatment and also assured and promised that she is in safe hands for her treatment, she will be cured completely. The OP2 is qualified skin specialist, he kept on charging having fees on the one pretext or the other but there was no improvement. The complainant spent hard earned money of Rs. 30,000/-. Even with the passage of time and undergoing treatment for considerable period, there was no improvement in the condition of complainant. The complainant as a last resort and having no other option requested the OP2 to hand over the record/documents so that complainant may have other medical advice, the papers were thrown to air, which was not expected of ethics for a doctor. There is breach of duty and also negligence to the patient.
2.3 The complainant also sent letter to OP1 seeking complete documents record, it was replied that it were not in possessions of any papers, when legal notice dated 21.01.2011 was sent to OP1 to provide documents, it was replied on 16.02.2011 seeking documents from complainant to make reply. It was responded by the complainant by letter dated 19.03.2011. That is why the complaint.
2.4 The complaint is accompanying prescriptions dated 17.06.2010, 26.06.2010, 07.07.2010, emergency bill 27.06.2010, cash receipts dated 18.06.2010, 26.06.2010, apart from legal notice, its reply and color photographs of complainant (to show and highlight the points of scar on forehead and cheek).
3.1 The OP1 opposed the complaint that complainant is 17 years of age, being minor; the complaint is liable to be dismissed. OP2 is neither a regular employee of OP1 but a senior reputed consultant Dermatologist, Cosmetologist and Venerologist. He is on the panel of OP1. The complainant was treated as private patient by OP2 in his independent capacity, the fees or charges were also paid by the complainant to OP1, the OP1 had not received any fee/charges from the complainant. There is no documents/record issued by the OP1/ Hospital in favour of complainant to be construed that complainant was patient of OP1. There is neither any negligence or unfair trade practice to be treated against OP1 and there is no expert evidence, whatsoever, to suggest deficiency of treatment given by OP2. The OP1 was never in picture in treatment of complainant by OP2. Had the complainant been patient of OP1 or had any grievances, she would have approached Medical Superintendent or Director of OP1, but she never approached or complained it. OP1 also denies other allegations of the complaint as well as that it cannot possess any record, since she was not patient of OP1.
3.3. The OP2 filed its separate reply and opposed the complaint on all counts that the complaint is misconceived, groundless, frivolous and vexatious. Neither there is any negligence nor any unfair trade practice nor any deficiency of service, the complaint is abuse of process of law to extort money from the OPs. The complainant was treated by the OP2, since he is consultant Dermatologist in multi-specialty hospital of OP1. The OP2 is a qualified, competent and expert in skin ailments and it was complainant herself who came for treatment. There was no assurance or promise by the OP2 to the complainant as alleged, since it is well known factor that dermabrasion can produce only about 50-70% improvement in scar treatment, no one claims or promises for complete wipe out of the scar. A scar treatment cannot be discussed in respect of curable or un-curable or reoccurrence but it can be discussed only in the way that it will become less or light in percentage of improvement. Moreover, skin treatment results are clearly visible like mirror image so no one can hide, so no one will make a false promise. Moreover complainant's brother, who was accompanying the complainant, was clearly told about the line of treatment and after satisfying about the course of treatment, he had given consent, which is over-leaf of prescription. The wound heals usually in 07-12 days but repair process continues aggressively for 2-3 months and remain internal repair continue at level of collagen about 6-9 months. Thus, no one gives assurance or promise for recovery in one month. The allegations in the complaint are by way of imagination.
The complainant was advised to avoid sun light and it seems that complainant had not follow that advice of OP2, she herself was exposing to sun light, which might not have yielded the desired results as alleged. On 07.07.2010, the complainant had visited OP2, the procedure site healed well and improvement in respect of depth and size of scare and again explain them in detail and advice about further treatment. On next visit she was also advice about further treatment with other details, she was also mention about sun light precaution since complainant was showing a hyper pigmenting ring at the margin of scare because of sun exposure of newly formed tissues of healed site and no consultation charges were taken from her. She never turn up again for further follow up. Moreover, complainant's follow up are irregular, she failed to take the precaution from sun light despite repeated advices and requests. The OP2 had never charged Rs. 30,000/- from the complainant, it is also an imaginary figure. No receipt has been filed in this regard. The OP2 possess complete skills and competent to treat the complainant, OP2 is a well qualified dermatologist. The complainant had already all the medical papers/records as the same were given to her being OPD patient, no record of OPD patient is kept by the hospital. The OP denies other allegation of the complaint with request to dismiss the complaint.
3.4. The OP3 was served with complaint, however, it failed to join the proceedings therefore, it was proceeded ex-parte on 07.08.2012. There was no reply by the OP3.
4. The complainant filed separate replications to the reply of OP1 and OP2. The complainant denies the allegations of reply of OPs. The complainant reaffirm the complaint as correct.
5.1 The complainant filed her affidavit of evidence, it is on the lines of complaint as well as documents which includes prescriptions, bills, legal notice, reply and her photographs, which have already been referred.
5.2 OP1's Dr. Rajeev Ranjan Kumar, authorised by Board of Trustees, filed affidavit of evidence for OP1, it is also based on the reply and it is coupled with record meeting dated 15.01.2013 of Board of Trustees authorizing Dr. Rajeev Ranjan Kumar to appear and act for OP1.
5.3 OP2 Dr. Nikhil Sharma, Consultant, Dermatologist C/o Jessa Ram Hospital filed his affidavit, it is on the pattern of his reply.
5.4 This Consumer Forum/Commission had referred the matter for expert opinion to JPN Hospital by proceeding dated 10.12.2014 and report was received as a letter dated 30.01.2018, that they were not provided with details of the procedure done by OP1 and it was difficult for them to give the opinion. Whether or not OP2 was holding any degree or diploma in Dermatology was not reflected in the reply of OP1.
5.5 However, at the stage of final hearing, on 09.02.2023 OP2 had furnished copies of documents/record of his diploma and certificate to show that he is qualified in Dermatology and Venerology. On 27.04.2023, the OP2 also filed digital photographs of complainant to show pre-treatment condition of scars of patient to compare with photographs filed by complainant of her post treatment condition, showing improvements. These photographs were not filed by OP2 at the stage of evidence, thus is was recorded in the proceedings that they are just part of record and supplement to the arguments already made. The complainant was provided with copies of such record.
6. At final hearing, the parties had filed their respective written arguments, which are replica of the pleadings coupled with documents. Sh. Dharmender Rana, Advocate for complainant and Sh. Rohini Kumar Advocate OP2 made the oral submission. Since complainant has referred case of Jacob Mathew Vs State of Punjab & anr Appeal (Crl) no.144-145/2004 to support its case but ld counsel for OP2 submits ratio of that case applies to criminal cases and not to consumer complaint.
7.1 [Findings] -The contentions of all the sides are considered keeping in view the material on record. The detail of contention is not being repeated here as the same will be dealt appropriately point-wise
7.2 There is an objection by OP1 that the complainant is 17 years of age and complaint by minor is not maintainable. However, exact date of birth is not mentioned anywhere. As appearing when the complainant was treated in the month of June 2010, her age was recorded as 17 years but the complaint was filed about one year thereafter on 18.05.2018. Therefore, it does not appear to be a case of complaint by a minor. This contention is disposed off.
7.3 The other objections taken by OP1 is that it has no relation of employer of OP2, the OP1 had not charged any fee from the complainant as well as the complainant was private patient of OP2.
However, the reasons of OP1 are misplaced, since the prescriptions [Exh.CW1/1, Exh.CW1/2, Exh.CW1/3] are on the letter heads of OP1 and the bills [Exh. CW1/8, Exh. CW1/7] are on the stationary of OP1. Moreover, it is an admitted case of OP1 that OP2 is on the panel of consultant. The complainant had came to OP1/Hospital, where OP2/consulting doctor had examined the complainant. It is never the case of OPs that complainant was examined and treated at place other than place of hospital of OP1. The letter heads and stationary of OP1 was utilized for prescriptions and billing of complainant because OP2 is a consultant on the panel of OP1. There is a patient bill [Exh. CW 1/8 of 27.06.2010] which shows name of complainant with UHID FHL4 175249. It suffices to establish that the complainant came at the hospital of OP1, where OP2 had attended the complainant/patients. Thus, it is held that the OP1 cannot be looked in isolation without OP2 for the purposes of complaint of the complainant. With these findings, the other issues are being taken.
7.4 After careful assessment entire record, filed by the complainant, the following conclusions are drawn:-
(i) there are manuscript prescriptions on the letter heads of OP1, they are of 17.06.2010, 26.06.2010 and 07.07.2010. The corresponding bills are also of the cash receipts issued by the OP1, including of emergency bill and patient bill. This shows that she was also patient of OP1 and OP2,
(ii) the prescription of 17.06.2010 mentions about advices of medicines, cream, and other precautions including to avoid sun light. Over leaf this prescription there is willingness/consent for treatment and procedure by the complainant, her mother and her brother and this was signed by complainant's brother, and
(iii) on the review prescription of 26.06.2010 it was observed that the skin was healing, complainant was advised medicine, cream as well as follow up after 5 days. In the prescription of 07.07.2010, observation were also recorded that skin was healed well and there is an improvement, however, in the prescription of 24.07.2010 further observations was recorded that pigmenting of ring on margin of scar since patient was not following the advices sincerely.
(iv) The aforementioned conclusion in sub-paragraphs (i) to (iii) above clearly proves that complainant, her brother and mother were present, they have consented and then consent was taken for pursuing the treatment and thereafter the treatment was commenced. Otherwise had there been no consent, there was no reason for the complainant to visit again for follow up and review. It is also not so, as alleged that signature of complainant's brother is no consent at all, since complainant's mother was also present when all of them had consented.
(v) The bills [Exh.CW1/4 to Exh.CW1/8] are not of Rs. 30,000/- but of smaller amounts, the receipt were issued under the signature of authorized signatory. There is no proof of payment of Rs. 30,000/- by the complainant to OPs. It does not make out a case of unfair trade practice.
(vi) The case of complainant is that she was assured of full fledge recovery, which is denied by the OP2. There is no proof of any record, showing that the complainant was given assurance for full fledge recovery vis a vis there is observation of improvement. However, there are also adverse observation against the complainant that she was not avoiding the sun light, because of it pigmented ring is formed at newly procedure margin of the scare. Thus, it does not make out a case of medical negligence or deficiency in services.
(vii) OP2 has narrated in reply the state of affairs involved in treatment and post procedure, duration of treatment, scar marks cannot be expressed by way of curable or non curable but by way of percentage of less or light view. The procedure explained to complainant, her mother and brother would have also been so explained.
(viii) The complainant herself filed the record of prescriptions and bills inclusive of emergency billing of dressing charges, which establishes the plea of OP2 that being OPD cards, the patient is handed over that records of prescriptions vis a vis the complainant could not establish as to what other record was there which was not given to her. The complainant also asserts that he was taking medicine and using the creams etc, it would be possible only when she was having the record of prescription.
(ix) There was reference seeking expert opinion, however, the letter dated 30.01.2018, shows that there was Medical Board constituted, its meeting was on 09.01.2018 and then its opinion was communicated to the present Commission/Forum. There is no opinion actually rendered. Since it was also asked about the degree/diploma of OP2 and also to opine the qualification of OP2. It appears that OP2 was not called by the Medical Board for any inquiry as letter does not substantiate the procedure of enquiry followed. However, on 09.02.2023, the OP2 had furnished his certificates that he qualified diploma examination in Octobr,2002 in Dermatology and Veneoeology from the College of Physician and Surgeon, Bombay & Diploma in Dermatology and Veneoeology from the College of Physician and Surgeon of Bombay in January, 2003.
8. The aforementioned conclusions do not establish complainant's case of deficiency in services or unfair trade practice or of medical negligence against OPs. The complaint fails. The complaint is dismissed. Copy of this Order be sent/provided forthwith to the parties free of cost as per rules for necessary compliance.
9. Announced on this 1st May, 2023 [वैशाख 11 , साका 1945].
[Vyas Muni Rai] [ Shahina] [Inder Jeet Singh]
Member Member (Female) President
