Date Issued: October 30, 2018
File: SC-2017-006519
Type: Small Claims
Civil Resolution Tribunal
Indexed as: Ayoughi v. Zora Jannesar doing business
as Zora Skin Care Clinic,
2018 BCCRT 667
Between:
Maryam Ayoughi
Applicant
And:
Zora Jannesar doing business as Zora Skin Care Clinic
Respondent
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REASONS FOR DECISION |
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Tribunal Member: |
Shelley Lopez, Vice Chair |
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INTRODUCTION
1) The applicant, Maryam Ayoughi, says the respondent burned and damaged her skin while performing a laser treatment. The applicant claims an $815.50 refund plus $56.63 for the cost of medications she required.
2) The respondent, Zora Jannesar doing business as Zora Skin Care Clinic, denies any negligence. The respondent says the hair removal laser treatment was a success, and that the applicant accepted the risk of redness and inflammation and the risk of a flare in a herpes condition. The applicant is self-represented and the respondent is represented by Zohreh Jannesar, its principal.
JURISDICTION AND PROCEDURE
3) These are the formal written reasons of the Civil Resolution Tribunal (tribunal). The tribunal has jurisdiction over strata property claims brought under section 3.1 of the Civil Resolution Tribunal Act (Act). The tribunal’s mandate is to provide dispute resolution services accessibly, quickly, economically, informally, and flexibly. In resolving disputes, the tribunal must apply principles of law and fairness, and recognize any relationships between parties to a dispute that will likely continue after the dispute resolution process has ended.
4) The tribunal has discretion to decide the format of the hearing, including by writing, telephone, videoconferencing, email, or a combination of these. The tribunal may accept as evidence information that it considers relevant, necessary and appropriate, whether or not the information would be admissible in a court of law. The tribunal may also ask questions of the parties and witnesses and inform itself in any other way it considers appropriate. Some of the evidence in this dispute amounts to a “he said, she said” scenario. Credibility of interested witnesses, particularly where there is conflict, cannot be determined solely by the test of whose personal demeanour in a courtroom or tribunal proceeding appears to be the most truthful. The assessment of what is the most likely account depends on its harmony with the rest of the evidence. In the circumstances here, I find that I am properly able to assess and weigh the documentary evidence and submissions before me. Further, bearing in mind the tribunal’s mandate that includes proportionality and a speedy resolution of disputes, I find that an oral hearing is not necessary. I also note that in Yas v. Pope, 2018 BCSC 282 at paragraphs 32 to 38, the BC Supreme Court recognized the tribunal’s process and found that oral hearings are not necessarily required where credibility is in issue
5) Under tribunal rule 126, in resolving this dispute the tribunal may: order a party to do or stop doing something, order a party to pay money, or order any other terms or conditions the tribunal considers appropriate.
ISSUE
6) The issues in this dispute are whether the respondent a) failed to obtain informed consent for the laser treatment, and b) negligently performed a laser hair removal treatment on the applicant, and c) if so, what is the appropriate remedy.
EVIDENCE AND ANALYSIS
7) In a civil claim such as this, the applicant bears the burden of proof, on a balance of probabilities. I have only addressed the evidence and arguments to the extent necessary to explain my decision.
8) It is undisputed that the applicant received 5 separate treatment sessions from the respondent, between February 25, 2017 and September 6, 2017. In this dispute, the applicant wants a refund of the $815.50 paid, plus $56.63 for medication.
9) Based on the parties’ submissions and the applicant’s doctor’s notes in evidence, I accept that after the 5th treatment on September 6, 2017 the applicant had redness and inflammation, and had developed a cold sore. The applicant alleges her injury resulted from the respondent’s technician’s decision at that last visit to change the head of the machine and adjust it to a different level to get a better result, because the applicant had said she still had hair growth.
10) The applicant denies having any cold sores previously. The applicant says her doctors diagnosed her skin damage as being solely due to the laser treatment she received from the respondent. I find this is an inaccurate description of what her doctors said, as discussed further below.
11) The applicant provided a September 28, 2017 doctor’s note that diagnoses her with “acute viral herpes lesions”, and which states that this is her first infection. The note states that the trauma from laser treatment and the inflammation “is directly contributing to flare up of HSV” in the region (my bold emphasis added). I find this note does not say the laser treatment infected the applicant with herpes. A second doctor’s note dated October 24, 2017, states (my bold emphasis added):
I believe her laser treatment certainly caused her skin having an acute burn, and her herpes got flared up because of reduced immunity and inflammation in that area which caused virus shedding in the skin.
12) Based on this evidence, I accept the applicant developed the appearance of a cold sore, or a “flare” in herpes, after the laser treatment. This is what her doctor said in their notes, and that the laser treatment “directly contributed” to the flare. I do not agree with the applicant that the doctor’s reference to her having “acute viral herpes lesions” means the laser treatment or the machine infected her with the herpes condition. In other words, I find the weight of the doctor’s evidence is that the laser treatment caused the appearance of a herpes lesion, rather than infecting her with the condition at first instance. In any event, I find the applicant has not proved the respondent infected her with herpes.
13) It is undisputed that the laser hair removal treatments were a success, in that the unwanted hair was removed. Thus, the remaining issues before me are a) whether the respondent failed to obtain informed consent about the risks of a herpes flare and of inflammation and redness, and b) whether the respondent negligently performed the treatment.
14) I will address the consent issue first. The respondent says the applicant was fully informed “on the hazards, precautions, and post treatment instructions” by the technician. As well, the respondent says the applicant “fully read and signed the consent form” for the treatments. There were several instructions given for the post-treatment period, including not to exercise or do anything for 24 hours that would irritate the area.
15) It is undisputed that the day after her first treatment, which treatment I find took place on February 25, 2017, the applicant attended at the respondent’s clinic to advise that her skin was irritated. The respondent says the applicant explained she went for a long walk right after the laser treatment. The applicant denies saying this, although she does not deny she went on the long walk or received Hydrocortisone for the irritation, which cream is noted in the respondent’s “profile note” for the applicant. I prefer the respondent’s business record that was noted at the time, rather than the applicant’s later denial of having taken a long walk. This is relevant as it impacts my overall assessment of the reliability of the applicant’s evidence. It is also relevant because it supports a conclusion that despite having irritated skin after the 1st laser treatment, the applicant proceeded with 4 more treatments. This is evidence that the applicant accepted the associated risk.
16) The respondent’s “profile notes” also show a February 25, 2017 entry that states the applicant would buy 10 sessions of laser hair removal and would pay in 3 payments, 1st , 3rd, and 5th session. This is in fact how the applicant paid. The respondent’s February 25, 2017 note ends with, “She gets cold sore and was explained that she needs to be careful because Laser can trigger it” (quote reproduced as written). As above, I am inclined to prefer this contemporaneous business record over the applicant’s later statement that she had never experienced a cold sore before. Her physician’s note, that it was her first infection, appears to be re-stating what the applicant said. My conclusion is also consistent with the physician’s statement that the applicant’s appearance of a lesion was a “flare”, meaning it was a pre-existing condition. I have no historical physician’s chart notes before me, and there is no evidence before me that the applicant’s physician had treated her for a long time and would know her medical history. That said, I find little turns on the applicant’s history with cold sores. The fundamental point is that I find the respondent informed the applicant of the risks, including about aggravating herpes, and the applicant chose to proceed.
17) The consent form completed and initialed by the applicant in February 2017 also clearly lists sets out some of the known side effects, including: purpura (purple spots or rash), blistering, crusting, pimples, redness, and swelling. The applicant in addition initialed a typed section that read: “I understand that if I have a history of cold sores or genital herpes I may require pre or post treatment with anti-viral medications”.
18) The applicant says for the first time in her reply submission that when she was given the consent form, she said her English was not good and she did not understand the content. The applicant says she asked if she could take the form home to review or if the respondent would translate it for her. The applicant says the respondent’s staff told her “don’t worry, nothing very important, just usual procedure, just sign it as we may not be able to offer this promotion in the future”.
19) Because the applicant raised her lack of informed consent for the first time in her reply, the respondent did not have an opportunity to respond to it. I find it would be unfair to place any weight on this submission, because the applicant knew from the respondent’s earlier Dispute Response, and presumably also from the tribunal’s facilitation process, that the respondent relied on the completed consent form. Further, given my conclusions about the unreliability of the applicant’s evidence, I do not accept that the respondent told the applicant not to worry about the consent form. I also find such a conclusion is inconsistent with the fact that the applicant had to initial each term separately. The applicant has provided no explanation of what she understood the “usual procedure” to be, and has not explained what informed consent she gave when she had received similar laser treatment elsewhere.
20) In all of these circumstances, I find the applicant has not proved she did not give informed consent to the laser treatment. Based on the consent form, I accept the applicant was warned the laser treatment could flare a herpes condition, which is what happened here. I find the applicant accepted that risk.
21) I also find the consent form warned the applicant that there could be redness, blistering, redness, and swelling after the treatment. That is what happened here, and I note “redness, swelling, cold sore and inflammation in the area” is how the applicant described her condition in her application for dispute resolution. Nothing turns on the fact that the applicant’s doctor referred to it as an “acute burn”, as I find it means the same thing in these circumstances following laser treatment. I find the applicant accepted this risk.
22) The remaining question is whether the respondent was negligent in its treatment of the applicant, and that the burned appearance or the herpes flare could have been avoided.
23) An applicant bears the burden of proving a negligence claim on a balance of probabilities. The general elements of a negligence claim are: the respondent owes a duty of care, the respondent failed to meet a reasonable standard of care, it was reasonably foreseeable that the respondent’s failure to meet that standard could cause the applicant’s damages, and the failure did cause the claimed damages.
24) Clearly, the respondent owed the applicant patient a duty of care. However, given the consent form, I find the applicant has not proved that an outcome free of a herpes flare or free of redness and inflammation was the reasonable standard. Further, the doctor’s notes do not establish negligence, as I have found redness and inflammation was a known and accepted side effect. There are no photos in evidence and no expert opinion critical of the care provided by the respondent. The fact that the doctor told the applicant she should avoid future laser treatment does not mean the respondent was negligent. The applicant has not proved negligence.
25) As the applicant was unsuccessful, in accordance with the Act and the tribunal’s rules I find she is not entitled to reimbursement of $125 in tribunal fees.
ORDER
26) I order that the applicant’s claims, and therefore this dispute, are dismissed.
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Shelley Lopez, Vice Chair |