Judgment No. 1103/2018/DS-PT dated november 23, 2018 on dispute over a service contract

THE PEOPLE’S COURT OF HO CHI MINH CITY

JUDGMENT NO. 1103/2018/DS-PT DATED NOVEMBER 23, 2018 ON DISPUTE OVER A SERVICE CONTRACT

On November 23, 2018 at the courtroom, the People's Court of Ho Chi Minh City conducts an appeal trial of the case No. 77/2018/TLPT-DS dated February 26, 2018 on "Dispute over service contract”.

As the first instance civil judgment No. 21/2018/DS-ST dated January 11, 2018 of the People's Court of District M is appealed.

According to Decision to bring the case to appellate trial No. 5197/2018/QDPT-DS dated November 5, 2018 between:

- Plaintiff:  Ms. Nguyen Thi T, born in 1958, residing at: Street B, Ward C, District D, Ho Chi Minh City.

Defender: Mr. Nguyen Van Q - Attorney at Lawyer Office N of the Ho Chi Minh City Bar Association; residing at: Street P, Ward R, District S, Ho Chi Minh City.

- Respondents:

1/ Mr. Nguyen Xuan C, born in 1947, residing at: Street K, Ward L, District M, Ho Chi Minh City. 

2/ L Ltd, Co.; head office: Street K, Ward L, District M, Ho Chi Minh City.

Legal representative: Mr. Nguyen Xuan C, born in 1947, residing at: Street K, Ward L, District M, Ho Chi Minh City.

Defender: Mr. Do Bien T2 - Attorney of G Law Firm affiliated to the Ho Chi Minh City Bar Association; residing at: Street A, Ward O, District V, Ho Chi Minh City.

- Appellant:  Ms. Nguyen Thi T, the plaintiff.

FACTUAL AND PROCEDURAL BACKGROUND

Representation of Ms. Nguyen Thi T in the lawsuit petition, records of reconciliation and at the first-instance court hearing:

With desire for beauty, she came to SG Aesthetic Hospital affiliated to H Co., Ltd. to seek aesthetic advice on eyelid surgery. Mr. Nguyen Xuan C persuaded her to have eyelid and facelift surgery; on February 21 and 22, 2011, Mr. C performed upper and lower eyelid surgery and facelift surgery for her.  After the surgery, her face was deformed, leaving a large scar, her vision was blurry, her eyelids were stiff and she had difficulty to open her eyes, so Mr. C operated her again.  After three facelift surgeries and two surgeries of upper and lower eyelids, her eyelids were completely damaged, her mouth was distorted, her teeth were dislodged, her earlobes lose an angle, leaving behind a symptom of 7^th nerve palsy. Mr. C performed acupoint injection therapy, electroacupuncture, injection of a kind of yellow drug directly in her face for the whole year but could not help. It shows that the cosmetic surgery failed; so she went to Hanoi for treatment twice at the cost of VND 92,000,000, in specific: round-trip airfare was VND 12,000,000; food cost in Hanoi for 79 days of treatment was VND 79,000,000; the cost of medical examination in Saigon was VND 1,000,000.  After being treated, she made a complaint and was sent by the Inspector of the Health Department of Ho Chi Minh City for an assessment with the result of whole person impairment (WPI) of 8%.  She sued to request SG Aesthetic Hospital under H Co., Ltd. to pay her the amount of VND 92,000,000, compensate for mental damage caused by permanent impairment of 8%, to relieve the consequences of the injury. Therefore, if she cannot be cured in Vietnam, they must pay for her overseas medical treatment expenses. 

In the process of the Court's settlement, Ms. T filed an additional lawsuit, changing the petition, requesting Mr. Nguyen Xuan C and H Co., Ltd. to compensate her with an amount of VND 1,122,747,000, including:  the cost to go to Hanoi for temporary repair is VND 92,000,000, the cost for expert examination according to a court's decision is VND 1,247,000, a court cost of VND 27,500,000, a specialist expert examination fee of VND 2,000,000, an estimated cost for overseas eyelid implant is VND 200,000,000; the cost for injury impair such as mouth distortion, lost earlobe is VND 800,000,000.

Representation of the respondents - H Co, Ltd. and Mr. Nguyen Xuan C:

The respondents confirmed that they performed eyelid and facelift surgeries for Ms. Nguyen Thi T; after that, Ms. T asked to further stretch her face and repair her upper eyelid so he performed second and third surgeries for Mrs. T. After three surgeries, the scars were well healed and Mrs. T was very satisfied but then she went to the hospital to cause trouble again. Because the hospital did not want Ms. T to make noise and affect the patient, it returned Ms. T the cost of surgery of VND 66,600,000.  According to the assessment conclusion of the Center for Forensic Examination affiliated to Department of Health of Ho Chi Minh City, there is no basis to claim that the cosmetic surgery performed by SG Aesthetic Hospital to Mrs. T caused her 7^th nerve palsy and affected her eye performance; therefore, Company H and Mr. Nguyen Xuan C do not agree to compensate at the request of Ms. T.

In the first instance civil judgment No. 21/2018/DS-ST dated January 11, 2018, the People’s Court of district M held that:

Pursuant to Clause 3 Article 26, Point a Clause 1 Article 35, Point a Clause 1 Article 39, Article 220, Article 271 and Clause 1 Article 273 of the Civil Procedure Code 2015; Article 518 and Article 519 of the Civil Code 2005; Article 48 of Resolution No. 326/2016/UBTVQH14 dated December 30, 2016 of Standing Committee of the National Assembly on the rates, exemption, reduction, collection, payment, management and use of court fees and fees; Article 5 and Clause 3 Article 27 of Ordinance on court fees and charges; the Law on Civil Judgment Enforcement.

Declare:

1. Reject the request of Ms. Nguyen Thi T demanding Company H and Mr. Nguyen Xuan C to compensate her for the sums of:  the cost to go to Hanoi for temporary repair is VND 92,000,000, the cost for expert examination according to a court's decision is VND 1,247,000, a specialist expert examination fee of VND 2,000,000, an estimated cost for overseas eyelid implant of VND 200,000,000; the cost for injury impair such as mouth distortion, lost earlobe of VND 800,000,000, the cost for facelift surgery and earlobe repair of VND 30.000.000.

2. Suspend the first instance trial of Ms. Nguyen Thi T's request to claim H Co, Ltd. and Mr. Nguyen Xuan C to reimburse the court fee of VND 27,500,000.

3. Ms. Nguyen Thi T is liable to first-instance civil court fee of VND 45,757,410; which is deducted from the court fee advance of VND 2,300,000 according to the receipt No. 0004441 dated October 5, 2012 and 21,000,000 VND according to the receipt No. 04453 dated December 27, 2013 of the Sub-Department of enforcement of civil judgment of District 1, Ho Chi Minh City; so Ms. T also has to pay first-instance civil court fee of VND 22,457,410.

In addition, the first instance judgment also states the right to appeal and the right to enforce the judgment of the involved parties.  On January 23, 2018, plaintiff Ms. Nguyen Thi T filed an appeal against the entire first-instance judgment. 

At the appellate court hearing:

Representation of attorney Nguyen Van Q, the defender of the plaintiff Nguyen Thi T:

Based on the Forensic Examination Conclusion of Injury No. 99/18/TgT dated August 27, 2018 of the National Institute of Forensic Medicine - Sub-Institute in Ho Chi Minh City has determined that the Hospital of Doctor C has caused harm to the plaintiff in the course of cosmetic surgery.  However, this Conclusion is still incomplete, so currently Ms. T requires additional examinations to determine how much her impairment rating is, what is the yellow liquid injected into the plaintiff's face. and recommend soliciting a specialist organization to determine the cost for corrective surgery. In addition, since the defendant requests to bring Hospital I into the proceedings as a person with related interests and obligations, it is recommended to quash the entire first-instance judgment, hand it over to the first instance for re-settlement.

Representation of Ms. Nguyen Thi T, the plaintiff:

Agree with the statement of Attorney Q. The conclusion dated August 27, 2018 is incomplete and subjective.  After Dr. C performed the bad cosmetic surgery, it caused many deformities to her face, and then she had to go to many places for treatment.  Specifically, she went to Hospital D in Hanoi for treatment and for acupressure, taking traditional medicine at a private facility in Hanoi.  She also went to Hospital I to facelift corrective surgery and earlobe repair; went to Thong Nhat Hospital to remove the tumor caused by pus in her cheeks after facelift surgery; went to Hospital X in Ho Chi Minh City to treat fungal infections caused by the fluids that Dr. C injected into her face during the operation. 

Representation of attorney Do Bien T2, defender of the respondents:

Agree with the first instance judgment.  The forensic examination conclusion of the Center for Forensic Examination in Ho Chi Minh City is the exact ground for resolving the case.  The conclusion of the National Forensic Institute - Sub-Institute in Ho Chi Minh City is inaccurate, subjective. In fact, on November 29, 2017, Ms. T went to Hospital I for facelift corrective surgery and earlobe repair, so the forensic examination conclusion dated August 27, 2018 cannot tell which surgery(ies) cause injuries in question. Mrs. T, after having facelift surgery at Hospital I, said that she was completely satisfied, so why is Mrs. T now presenting that her face is paralyzed.

The respondent side requests the Court to adjourn the hearing to bring Hospital I into the proceedings as a person with related rights and obligations to clarify the above matters; as well as bring medical records at Hospital I to solicit assessment.  It is unnecessary to quash the first instance judgment as appealed by the plaintiff.

Representation of the respondents - H Co, Ltd. and Mr. Nguyen Xuan C:

Agree with the attorney's statement.  At today's trial, Ms. T cannot prove where she is paralyzed or where her mouth is distorted. Ms. T does not suffer peripheral facial palsy as stated in the assessment conclusion dated August 27, 2018. Hospital I had an intervention so the assessment conclusion is not objective.

Opinions of the representative of the People's Procuracy of Ho Chi Minh City on the compliance with the law in the process of resolving the case at the appellate stage:

- Regarding legal proceedings: The judge and the trial panel have strictly complied with the provisions of the Civil Procedure Code, have ensured that involved parties have the rights and obligations as prescribed; sent adequate decisions, notifications to the Procuracy of the same level and the involved parties in due time.  The trial panel is composed of competent persons, the trial takes place in accordance with the order and the provisions of law.

- With reference to content: The Procuracy finds just cause to determine that Hospital I is related to the case, so Hospital I should participate in the proceedings as a person with related rights and obligations to redefine the injuries of Ms. T to resolve the case in an objective and accurate manner.  The Procuracy requests to quash the first instance judgment.

JUDGEMENT OF THE COURT

After studying the documents contained in the case files which have been verified at the trial and based on the results of the oral argument at the trial, the trial panel finds that:

 [1] In the process of resolving the case at the first instance, the plaintiff Nguyen Thi T presented:  after having cosmetic surgery at SG Aesthetic Hospital under H Co., Ltd., she only went to Hanoi for treatment and corrective surgeries and request the respondents to compensate these costs.

At the first instance, according to the forensic examination conclusion number: 36/SK.13 dated October 8, 2013, Official Dispatch No. 47/TTPY.GT-14 dated March 24, 2014 of the Center for Forensic Examination affiliated to Ho Chi Minh City Department of Health on the explanation of the injury assessment results of Ms. Nguyen Thi T and the Official Dispatch No. 5306/SYT-NVY dated September 16, 2014 of the Department of Health of Ho Chi Minh City: "Ms T's binocular vision are not affected and there are not enough grounds to determine that the surgery has a slight effect on the 7^th cranial nerve".  Based on this conclusion, the first instance did not accept the whole petition of the plaintiff.

At the appellate court, Mrs. T asks for a re-assessment and gives additional statement: after having cosmetic surgery at SG Aesthetic Hospital, she went to Hospital E, Hospital X, Ho Chi Minh City for treatment and went to Hospital I for facelift corrective surgery and earlobe repair. Ms. T has submitted copies of the medical receipts at these hospitals to the Court.

The appellate court issued a decision to solicit re-assessment and at the forensic examination conclusion on injury No. 99/18/TgT dated August 27, 2018 of the National Institute of Forensic Medicine - Sub-Institute in Ho Chi Minh City. HCM states:  “After eyelid and facelift surgeries at SG Hospital, there is now sequelae in both eyes and incomplete peripheral facial nerve palsy.  At the time of assessment of her traumatic sequelae in the eye: incomplete peripheral facial nerve palsy; slight droopy eyelids on both sides, ability of the eyelids to fully close slightly decrease”.

The appellate court also issued Decisions requiring Hospital E, Hospital X Ho Chi Minh City and Hospital I to provide Ms. T's medical records and determines that Ms. T had come to these hospitals for treatment after cosmetic surgery at SG Hospital.  The file of Hospital I shows that Ms. T has come to have facelift corrective surgery and earlobe repair and as a result, Ms. was satisfied after the surgery and has no complaints.

The trial panel finds that, according to the re-assessment result, Ms. T now has sequelae in both eyes and incomplete peripheral facial nerve palsy after cosmetic surgery; however, Ms. T not only underwent the surgery at SG Hospital, but also in turn went to other hospitals for further treatment, in which receiving facelift surgery at Hospital I. Therefore, it is necessary to bring Hospital I into the proceedings as a person with related rights and obligations and collect all records at the hospital to clearly identify if the consequences stated in the assessment conclusion only come from the cosmetic surgery at SG Hospital or not.  In addition, it is also necessary to collect more evidence of Ms. T's medical examination and treatment at Hospital D in Hanoi to determine which hospital she went for examination, which treatment and how much it cost. These are new facts arising at the appellate court hearing that cannot be taken, clarified or supplemented by the appellate court.  Therefore, it is necessary to quash the first-instance judgment, transfer the case file to the Court of first instance for re-resolution.

Ms. T is not liable to a civil appeal fee. Therefore,

Pursuant to Article 3 and Article 308, Article 310 of the Criminal Procedure Code;

DISPOSITION

Quash the first instance civil judgment No. 21/2018/DS-ST dated January 11, 2018 of the People’s Court of district M between:

- Plaintiff:  Ms. Nguyen Thi T, born in 1958, residing at: Street B, Ward C, District D, Ho Chi Minh City.

- Respondents:

1/ Mr. Nguyen Xuan C, born in 1947, residing at: Street K, Ward L, District M, Ho Chi Minh City.

2/ L Ltd, Co.; head office: Street K, Ward L, District M, Ho Chi Minh City.

Legal representative: Mr. Nguyen Xuan C, born in 1947, residing at: Street K, Ward L, District M, Ho Chi Minh City.

Refer the case file to the People’s Court of district M, Ho Chi Minh City for re-resolution as per the law.

2. Regarding appellate civil fee: Ms. T is not liable to the fee. Reimburse to Ms. L1 the advance payment of the appellate court fee of VND 300,000 according to receipt No.0022635, dated January 24, 2018 of Civil Judgment Execution Department of District M, Ho Chi Minh City.

The appellate judgment takes legal effect from the date of pronouncement./