STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
Consumer Complaint 36 of 2013 |
Date of Institution | 24.05.2013 |
Date of Decision | 02.12.2013 |
Ms. Diane Green, Age: 53 years, 91B Norroy Road, Putney, London SW15 1 PH – United Kingdom through Attorney, Gautam Khurana s/o Sh. Prem Khurana, Managing Partner, India Law Officers, D/19 Ground Floor, South Extension Part-I, New Delhi 110049.
VERSUS
1.Advanced Dental Care Centre through its Proprietor Dr. Anshu Gupta r/o H.No.20, First Floor, Sector 18A, Chandigarh – 160018, Punjab.
2.Dr. Anshu Gupta,
3.Dr. J. Nagaraj, Shivalik Hospital, Mohali, Sector 69, SAS Nagar, Mohali, Punjab.
BEFORE: JUSTICE SHAM SUNDER (RETD.), PRESIDENT
Argued by:Ms. Geeta Gulati, Advocate for the complainant.
Sh. Gaurav Bhardwaj, Advocate for Sh. Paras
Money Goyal, Advocate for OP No.3.
PER DEV RAJ, MEMBER
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10. It was further stated that Opposite Party No.3, was shocked, when he received a telephone from the Landmark Hospital that the complainant had left the Hospital after creating ruckus over there possibly for smoking, vide discharge summary (Annexure R-3/6). It was further stated that after the complainant left the Hospital against medical advice, Opposite Party No.3, was quite concerned about her well being and informed Opposite Party No.2, who was not having her contact number. It was further stated that the complainant returned to the clinic of Opposite Party No.2, after one day, as informed by it. It was further stated that the complainant apologized for her misconduct, and joined Opposite Party No.2, for further treatment. It was further stated that Opposite Party No.3, had used the Zygomatic implants, which were worldly acceptable procedure of treatment and there were various International articles published upon the said treatment and, as such, it could be safely said that the treatment so given by Opposite Party No.3 was one of the best treatments having recognition world over. It was further stated that Opposite Party No.3 had conducted the treatment upon the complainant to his entire satisfaction and the implants were settling down well. It was further stated that the complainant was given the proper care and caution for the period, she stayed in India after her treatment. It was further stated that the complainant was repeatedly informed that the settling down of the implants with proper healing of the wounds, shall take at least a period of 6 months and she should not experiment with the implant, which shall weaken their support from bone and would not be good for the long term success of the implants. It was further stated that, in fact, after leaving India, the complainant never complained of any throbbing pain or difficulty to take bite, as she was quite comfortable and the implants were healing well. It was only after the complainant visited the alleged dentist, namely, Ian Needle man that she started making out a false claim of pain. Apart from the above pleadings, Opposite PartyNo.3 also reiterated the stand as taken by Opposite Parties No.1 and 2, in their written reply. It was further stated that, neither there was any deficiency, in rendering service nor unfair trade practice nor medical negligence, in providing treatment to the complainant, on the part of Opposite Party No.3. The remaining averments, being wrong, were denied.
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14. In the medical negligence cases, the law is now well settled. The Hon’ble Supreme Court in para-94 of its judgment titled asBatraHospital
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I. | Negligence is the breach of a duty exercised by omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do. |
II. | Negligence is an essential ingredient of the offence. The negligence to be established by the prosecution must be culpable or gross and not the negligence merely based upon an error of judgment. |
III. | The medical professional is expected to bring a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence judged in the light of the particular circumstances of each case is what the law requires. |
IV. | A medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field. |
V. | In the realm of diagnosis and treatment there is scope for genuine difference of opinion and one professional doctor is clearly not negligent merely because his conclusion differs from that of other professional doctor. |
VI. | The medical professional is often called upon to adopt a procedure which involves higher element of risk, but which he honestly believes as providing greater chances of success for the patient rather than a procedure involving lesser risk but higher chances of failure. Just because a professional looking to the gravity of illness has taken higher element of risk to redeem the patient out of his/her suffering which did not yield the desired result may not amount to negligence. |
VII. | Negligence cannot be attributed to a doctor so long as he performs his duties with reasonable skill and competence. Merely because the doctor chooses one course of action in preference to the other one available, he would not be liable if the course of action chosen by him was acceptable to the medical profession. |
VIII. | It would not be conducive to the efficiency of the medical profession if no Doctor could administer medicine without a halter round his neck. |
IX. | It is our bounden duty and obligation of the civil society to ensure that the medical professionals are not unnecessary harassed or humiliated so that they can perform their professional duties without fear and apprehension. |
X. | The medical practitioners at times also have to be saved from such a class of complainants who use criminal process as a tool for pressurizing the medical professionals/hospitals particularly private hospitals or clinics for extracting uncalled for compensation. Such malicious proceedings deserve to be discarded against the medical practitioners. |
XI. | The medical professionals are entitled to get protection so long as they perform their duties with reasonable skill and competence and in the interest of the patients. The interest and welfare of the patients have to be paramount for the medical professionals.” |
Their Lordships observed that the aforesaid principles, must be kept in view while deciding the cases of medical negligence.
15. Apex Court, that a physician would not assure the patient of full recovery in every case.
16. Apex Court
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18. Oral & Maxillofacial Surgery. He has given brief gist of his academic qualifications and professional accomplishments, which are extracted below:-
“Dr J Nagaraj is an Oral & Maxillofacial Surgeon and an eminent Implantologist. After completing his Bachelors’ degree in Dentistry, he went on to do his masters degree in Oral & Maxillofacial Surgery in 1998. During his masters he received many awards which included the “Best clinical paper presentation” by the Association of Oral & Maxillofacial Surgeons of India. With a wide experience and a keen interest in the field of Oral, Dental & Aesthetic Surgery, he trained himself from the USA, Europe and Spain in the science and field of Dental Implants which has been his bench mark for more than a decade now. At present he runs “Dentition”, a Private Dental Practice with special emphasis to Dental Implants and Facial Aesthetic surgery. He was also a Professor in Clinical Oral Surgery in the Kurukshetra University and trains Post Graduates under his guidance. He is a Fellow of the ICOI (International Congress of Oral Implantologist) USA, a Fellow of the International Association of Oral & Maxillofacial Surgery (USA) and Diplomate of the ICOI (International Congress of Oral Implantologist) USA. He is a Life member-AOMSI, Life member- AOI, Life member- IAO, Life member- IDA, Executive Member (North Zone) – Indian Academy of Osseo integration. He is also the Director of “DenTi”, a Dental Education and Training Institute in which he conducts courses and lectures on Dental Implants & Oral Surgery. ”
19. 20. Except receipt, no report/opinion of Dr. Ashok Sethi, who reportedly confirmed, what the previous specialists had observed, has been brought in evidence. The Opposite Parties admitted that the surgery was performed on 6.4.2012 at Landmark Hospital, Chandigarh by Opposite Party No.3 after taking written consent of the complainant and informing her about the risks involved. Opposite Party No.2 has submitted that the complainant while leaving the hospital, on her own, when she was operated upon under general anesthesia, and was yet to recover from its effect after her operation, did not bother to inform the Opposite Parties. The Opposite Parties have categorically denied that there was any negligence and carelessness in the surgery. The fact remains that the complainant did not abide by the advice of Opposite Party No.2 & 3 and even without waiting for six months healing period, started taking opinions, without waiting for the implants to settle down.
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(i) The complainant was operated upon on 6.4.2012 and, she left Chandigarh on 24.4.2012 for London. From the date of surgery till 24.04.2012 or till 2.5.2012, when the complainant first went to a doctor for formal checkup, there was no complaint with regard to the surgery performed.
(ii) The complainant left the hospital when she was under influence of general anesthesia without informing the Opposite Parties. This averment of Opposite Parties has not been denied by the complainant.
(iii) Prof. Ian Needleman, to whom the complainant contacted on 2.5.2012 in his findings interalia observed,“I found two full-arch implant supported bridges in the upper and lower jaws. . Apparently the aforesaid opinion did not attribute any specific negligence to the Opposite Parties. The other observations were also an impression of Prof. Ian Needleman, but the same did not constitute any specific medical negligence of the Opposite Parties.
(iv) Similarly, opinions of Brighton Implant Clinic and Advance Dentistry and Dr. Guy McLellan also do not in clear terms point out any specific negligence or carelessness attributable to the Opposite Parties.
(v) Though the complainant submitted that she contacted Dr. Ashok Sethi, a leading implant specialist in London, who reportedly confirmed what the previous specialists had observed, yet his report/opinion has not been produced in evidence and only receipt of fee (Annexure C-8) has been produced, which has no evidentiary value.
(vi) No cogent evidence by way of the affidavits of the doctors/specialists, who reportedly found some deficiency, in the treatment/surgery done by the Opposite Party No.2 and 3, have been filed.
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Pronounced.
2nd
[JUSTICE SHAM SUNDER (RETD.)]
PRESIDENT
[DEV RAJ]
MEMBER
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STATE COMMISSION
(Consumer Complaint No.36 of 2013)
Argued by:Ms. Geeta Gulati, Advocate for the complainant.
Sh. Gaurav Bhardwaj, Advocate for Sh. Paras
Money Goyal, Advocate for OP No.3.
Dated the 2nd day of December, 2013
ORDER
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(DEV RAJ) MEMBER | (JUSTICE SHAM SUNDER (RETD.)) PRESIDENT | |
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