Tamil Nadu

North Chennai

CC/199/2018

K.Yuvanedhi - Complainant(s)

Versus

AVM Medical ENT Research Foundation& others - Opp.Party(s)

Pass Associates

26 May 2022

ORDER

Complaint presented on  :20.01.2009

                                                                    Date of disposal            :26.05.2022

                                                                                  

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,

CHENNAI (NORTH)

@ 2^ND Floor, T.N.P.S.C. Road, V.O.C. Nagar, Park Town, Chennai – 600 003.

 

                   PRESENT : THIRU. G. VINOBHA, M.A., B.L.,                         :PRESIDENT

                                         TMT. KAVITHA KANNAN, M.E.,                         : MEMBER-I                

C.C. No.199/2018

DATED THIS THURSDAY THE 26^th   DAY OF MAY 2022

K.Yuvanedhi,

Flat No.10, Sri Narayanan Apartments,

11, Rosary Church Street,

First Lane, Santhome,

Chennai-600 004.

                                                                                                     .. Complainant.                                                                               ..Vs..

 

1.AVM Medical, ENT Research

Foundation (P) Ltd.,

No.3, P.S.Sivasamy Salai,

Mylapore,

Chennai-600 004.

 

2. Dr.Ravi K.Viswanathan

AVM Medical, ENT Research

Foundation (P) Ltd.,

 No.3, P.S.Sivasamy Salai,

Mylapore,

Chennai-600 004.

 

3. Dr.N.R.Krishnaswamy,

Orthodontist,

23/11, Maharaja Surya Rao Road,

(Murray’s Gate Road),

Alwarpet,

Chennai-600 018.                                                                       ..  Opposite parties.

(Complaint is amended as per order in C.M.P.30/2022, Dated:17.05.2022)

 

Counsel for the complainant                      : M/s. Pass Associates,

Counsel for   opposite parties                   : M/s.Anand, Abdul and Vinoth  

         Associates.

ORDER

THIRU. G. VINOBHA, PRESIDENT

          This complaint has been filed by the complainant against the opposite parties under section 12 of the Consumer Protection Act, 1986 prays to the first and second opposite parties to fix the denture, at their cost, to the complainant, to pay a sum of Rs.25,000/- towards compensation for mental agony caused to the complainant and thus render justice.

This complaint was originally filed before the District Commission, Chennai (South) and taken on file in C.C. No.69/2009.  Thereafter, the said complaint has been transferred to this Commission as per the proceedings of the Hon’ble S.C.D.R.C. and taken on file as C.C. No.199/2018.

1.THE COMPLAINT IN BRIEF:

The complainant stated that  she was admitted in the nursing home of the first opposite party on 30.12.2002 to get her tonsil operated and the operation was done by the second opposite party and she was discharged on the same day itself.  The complainant further stated that while discharging her the second opposite party disclosed the fact that he had removed four front teeth of the complainant being two permanent and two milk teeth.  Complainant’s parents when questioned the reason for removal of teeth the 2^nd opposite party had admitted the guilt stating that he had by mistake removed the teeth and having admitted the guilt the second opposite party undertook to bare necessary expenses for replacement of teeth at his expenses and also referred the complainant to the third opposite party for his expert 

opinion.  Upon which the complainant had approached the third opposite party on 03.03.2003 and got the report after examination and the same was handed over to the second opposite party on the same day itself. Thereafter, he had opined that since the complainant is very young fixing of denture at that point of time may lead to change of position as the child grows.  Eventually, the second opposite party opined that it would be advisable to fix the denture after the complainant attains 13 years. The complainant stated that believing such assurance, the complainant had approached the second opposite party again on 03.05.2008 and even at that time the second opposite party referred the complainant to the third opposite party for his expert opinion so as to find out the suitability of fixing denture.  Accordingly, the complainant subjected herself for the examination of the third opposite party obtained a report dated 03.05.2008 and the same was handed over to the second opposite party.  However, the second opposite party has been called upon by the complainant time and again and there was no sign for fixing denture on the part of the second opposite party.  The complainant, sensing the evasive attempt of the second opposite party, had sent a letter dated 25.07.2008 requesting him to fix the denture at his cost.  However, having received the same,  the second opposite  party has neither come forward to fix the denture nor sent any reply.

          2. The complainant further stated that she is not aged 13 years.  Though the milk teeth were grown up, the place where the permanent teeth were removed is left with hollowness, due to which the complainant has lost the pleasant look of her face and she feel shy while interacting with others.  The complainant is suffering totally due the negligence of the first opposite party and the second opposite party which causes inexplicable mental agony. The complainant had sent a legal notice through his counsel dated:30.09.2008 to the first and second opposite party calling upon them to fix a denture, at their cost, and also asked a compensation of  Rs.25,000/-.  After receiving the notice the second opposite party sent a untenable reply dated:04.11.2008.  Thereafter, a suitable rejoinder dated 21.11.2008 was also sent to all the three opposite parties, which was also received by all the three of them.  The opposite parties had not come forwarded to accept their negligence and deficiency in service. Hence this complaint.

3.WRITTENVERSION FILED ON BEHALF OF THE FIRST AND SECOND OPPOSITE PARTY IN BRIEF:

          The opposite parties submitted that the complaint itself is barred by limitation and hence needs to be dismissed in limitation on that ground alone.  The complainant was brought by her father to the 1^st opposite party’s hospital in the year 2002 with the complainant of throat pain.  On examination it was found that her tonsils were inflamed and adenoids were infected.  The first opposite party advised the father of the complainant that it is advisable to perform a tonsillectomy and an adenoidectomy.  The father of the patient consented to the said surgery by singing a consent form and the surgery was fixed for 30.12.02.     Pursuant to the said investigations which were all found to be within normal limits as per medical protocol a laser tonsillectomy & adenoidectomy and myringotomy by gromet insertion was performed on the patient. Prior to surgery on a physical examination of the patient by the second opposite party it was found that the upper incissors were shaking.  Hence, it was explained to the patient’s father that the said teeth would have to be removed since there was a possibility during the surgery either while insertion of the mouth gag (An instrument which holds the mouth open facilitating the surgeon to perform the procedure) or pursuant to the surgery when the patient would be under anesthesia the shaky/loose teeth are at risk for inadvertent dislodgement or aspiration during the procedure/surgery which would become life threatening.  It was also explained that as the patient was only 6 years old at that time the teeth were only milk teeth and hence removal of the same will only be a temporary issue, as the permanent teeth would grow in due course. It is submitted that pursuant to the surgery the complainant’s father met the second opposite party and enquired about the teeth.  The 1^st opposite party referred the patient to the Third opposite party who is an expert orthodontist for his opinion.  The surgery was successful and the patient was discharged on the same day itself. The complainant never came back to this opposite party for the next 6 years.  It is submitted that the complainant approached the 2^nd opposite party on 03.05.2008 after a span of 6 years and complained that the incisors had not grown.  The 2^nd opposite party yet again referred the patient to the third opposite party for his opinion. The complainant yet again never came back to this opposite parties but instead issued a legal notice on 30.09.2008.  The opposite parties reiterate that the milk teeth of the patient were removed with the consent of the parents, after advising them of the dangers prevalent in the case of the loose teeth being dislodged during the surgery and falling into the airway passage during or pursuant to the surgery which would have been life threatening to the patient.   Hence knowing well that the teeth were milk teeth the complainant has tried to mislead this Hon’ble forum into believing that the removed teeth were permanent teeth.  The averment made by the complainant that the opposite party had agreed to reimburse the expenses for the fixing of the teeth are nothing but a figment of the complainant’s imagination.  The complainant has not filed any document to substantiate this allegation.  The entire case of the complainant seems to be based on assumptions and presumptions and not based on fact supported by evidence.  The opposite parties submitted that the complainant has in vain attempting to bring the complaint under the limitation period prescribed under the Consumer Protection Act had incorporated a false allegation in the third paragraph of the complaint that this opposite parties had advised the patient to come back after she reached the age of 13 years.  The fact, is that this complaint is hopelessly barred by limitation as the alleged cause of action had taken place in the year 2002.  The opposite parties wish to bring to the notice of the Hon’ble forum that it is settled law that loose teeth could be removed prior to surgery prevent/avert any untoward mishap which could be caused by the loose teeth being dislodged during the procedure and blocking the airway passage of the patient thereby threatening  the life of the patient.  Hence the said removal of the milk teeth were done consciously after informing the patient’s parents as per strict medical protocol.  The 2^nd opposite party submits that the non-eruption of the complainant’s teeth could also be due to a dental abnormality. In any case the exorbitant  claims made by the complainant are not supported by any documentary proof to substantiate his case of claiming a sum of Rs.25,000/- or any sum thereof.

4. WRITTENVERSION FILED BY THE  3^rd OPPOSITE PARTY IN BRIEF:

The opposite party submitted that the complaint itself is barred by limitation and hence needs to be dismissed in limitation on that ground alone.  The complainant was brought by her father to the 3^rd opposite party’s hospital in 2002 as the patient was referred to this opposite  party by the second opposite party.  This opposite party had examined the complainant and had suggested a line of treatment for the missing teeth.  The patient never came back to this opposite party for the next six years.  It is submitted that suddenly after a span of 6 years the complainant came to this opposite party referred to by the second opposite party on 03.05.2008.  On examination it was found that she needed orthodontic treatment as her central incisors were missing.  The complainant never came back to this opposite party after 03.05.2008.  This opposite party submitted as he was not a party to any of the averments stated in the complaint hence he had no knowledge of the same.  Moreover, only when the complainant was referred to him by the second opposite party, he had seen the complainant on 03.05.2008 and never after.  This opposite party submitted that he had never treated the complainant, and has been made a party in the instant complainant only as a formal party.  It is seen from the complaint that there is absolutely no allegation/averment against this opposite party as to the omission or commission of any act to suggest dereliction or duty or deficiency in service by this opposite party.

5. POINTS FOR CONSIDERATION:

1.Whether there is medical negligence on the part of the opposite party?

2.Whether the complainant is entitled for  the reliefs prayed in the complaint?

6. POINT NO. 1 :-

          It is not disputed by the both parties that the complainant who was minor aged six years was admitted in the 1^st opposite party hospital on 13.12.2002 to get her tonsil operated as the tonsil were infected and therefore a tonsillectomy and adenoidectomy was advised to be performed to the father of the complainant for which the complainant father consented by signing a consent form and the complainant was admitted for surgery was done and discharge on the same date namely 30.12.2002.  According to the complainant as far as the tonsil operation concerned it was successful and there was no dispute raised regarding this operation by the complainant.  But, the grievance of the complainant is that during the said operation without getting a written consent of the complainant parents.  Four teeths of the complainant in the upper jar were removed without knowledge  and the prior consent of the complainant parents.  After surgery and during discharge it was informed to the complainant father about the removal of the teeth which was found necessary and essential for performing the operation successfully and therefore the complainant has alleged that it amounts to medical negligence and due to such removal of teeth without prior consent also spoiled the face of the complainant and therefore the complainant alleged that when this was questioned by them the 2^nd opposite party admitted the guilt and promised to bear the surgery to fix denture .  But later on when the complainant contacted the 2^nd opposite party in the year 2008 the 2^nd opposite party refused to bear the cost and therefore the complaint was filed on 20.01.2009 by the complainant to fix the denture and claiming a sum of Rs.25,000/- towards the mental agony.  But it is found the 3^rd opposite party is only formal party who is the orthodontist given opinion regarding the fixing of denture and it is further found that the 2^nd opposite party is a ENT specialist who performed the operation and according to him even on the date of operation since the complainant was minor aged only six years and having only milk teeth and there was no permanent teeth at that time and further on physical examination the upper incissors  were found shaking and hence it was explained to the patient’s father even prior to operation that said teeth would have to be removed since, there was possibility during surgery the shaking teeth would become life threatening and it was further explained since it was milk teeth removal of the same will be only a temporary issue as the permanent teeth would grow later.  According to 2^nd opposite party the surgery was done successfully and the discharge summary also given to patient’s parents who were satisfied and discharged on 30.12.2002 and after a lapse of six years on 13.05.2008 they approached the 2^nd opposite party and complained that incisors did not grow and patient was referred to 3^rd opposite party for his opinion.  Therefore the 2^nd opposite party contended that the complaint filed for the operation done in the year of 2002 and the complaint which was filed in the year 2009 is barred by limitation. 

          7. But, on the other hand it is alleged by the complainant that under Ex.A9 the 2^nd opposite party has given untenable  reply only on 04.11.2008 refusing to fix the denture and from which the date of complaint is filed within the period of limitation. 

          8. Complainant had filed proof affidavit and  Ex.A1 to A14 were marked on the complainant side.  The Opposite parties filed proof affidavit and  Ex.B1 to B3 were marked on the side.

          9. It is found from Ex.A1 that the patient was aged six years in the year 2002 and she was breathing by mouth and had throat pain and difficulty in swallowing.  It is found from Ex.A4 discharge summary, the patient was admitted and operated and discharged on 31.12.2002 in the same discharge summary it was advised to come for review after five days.  But, the patient has not come for review at that time.  It is found from the Ex.A5 that the patient was referred by the 2^nd and 3^rd opposite party on 03.03.2003 for getting orthodontist opinion and X-Ray was also taken and the doctor has given opinion that no treatment is needed in the present and the patient will be reviewed after six months.  But, it is found that there after the patient approached the 2^nd and 3^rd opposite party only in year 2008.  The dentist has given opinion under Ex.A7 on 03.05.2008 that the patient required orthodontic treatment to close the residual space.  The duration of the treatment would be three years. There after Ex.A8 legal notice was issued by the complainant alleging  medical negligence on the part of the 1^st and 2^nd opposite party.  It is found from the Ex.A11 to A14 that in the year 2009 the patient has under gone dental procedure for which the doctor has given an opinion under Ex.A14 on 07.01.2012.  Therefore it is found from the Ex.A10 that the complainant has underwent orthodental procedure in the year 2009 itself in a different hospital and even thereafter the complainant has not amended the prayer in the complaint. The complainant’s father has signed in the consent form before operation and it is found and there is a clause in Ex.B1 that the consent is given for performing operations and procedures in addition to or different from those now contemplated whether or not arising from presently unforeseen conditions, which the above named doctor or his associates or assistants may consider necessary or advisable in the course of the operation.  The doctors  have power to remove the teeth if the same is necessary that for successfully doing the operation and for saving the life of the patient in view of the above said clause contained in Ex.B1.  Further consent need not be in writing it may be either express or implied.  According to 2^nd opposite party it was informed to the parents before performing the operation  that the teeth would have to be removed if it is necessary during the course of operation.  Therefore such removal of teeth during the time of operation cannot be said to be medical negligence or dereliction committed on the part of the opposite parties.  Though it is alleged by the complainant that the 2^nd opposite party advised to come at the age of the 13 years for dental procedure there is no documentary evidence to prove such contention.  For the operation done in the year 2002 only in the year 2008 the complainant has approached the 2^nd opposite party belatedly and filed this complaint in the year 2009 and therefore there is much force in the contention of the opposite party that the complaint is barred by limitation. The opposite party by relying upon decision of the apex court in the case of Jacob Mathew wherein it was held  A professional may be held liable for negligence on one of the two findings; either he was not possesed of the requisite skill which he professed to have possessed, or he did not exercise the said skill with reasonable competence.  In the instant case the second opposite party has possessed the required skill and had also administered timely treatment using the said skills. The opposite party also relied upon the citations reported by the Apex court as  observed in the case of Smt.Naseem Begum Vs.Dr.Laxmi Narain Aror and another in 2008(2) CPR 24 at page 26 &26.  Achutrao Haribhau Khoduva and others Vs. State of Maharashtra & others reported in 2004(2) CPT 127 at special page 138 and contended that there was no medical negligence on the part of the opposite parties.  Further there is no expert evidence also available to prove the alleged medical negligence on the opposite parties. There is no proof on the complainant side that due to loss of the teeth the complainant lost her pleasant look upon her face.  There is no documentary evidence to prove that the 1^st and 2^nd opposite parties agreed to reimburse the expenses for fixing the teeth.  Therefore it is found that there is no medical negligence  and deficiency in service on the part of the opposite parties as alleged in the complaint. Point no.1 is answered accordingly. 

10. Point No.2.

            Based on findings given to the Point.No.1 since there is no medical negligence on the part Opposite parties, the complainant is not entitled to fix the denture at the cost of opposite parties, and not entitled for the relief compensation  for mental agony as claimed in the complaint.  Point no.2 answered accordingly.

          In the result, the complaint is dismissed. No costs.     

Dictated  by the President to the Steno Typist taken down, transcribed and computerized by her, corrected by the President and pronounced by us in the open Commission on this the 26^th day of May 2022

 

MEMBER  I                                                                          PRESIDENT

LIST OF DOCUMENTS FILED BY THE COMPLAINANT:

Ex.A1	18.12.2002	ENT case record.
Ex.A2	24.12.2002	Audiogram

Ex.A3	25.12.2002	Report of Audiologist and speech pathologist.
Ex.A4	30.12.2002	Discharge summary.
Ex.A5	03.03.2003	X-Ray with report of the 3rd opposite party
Ex.A6	08.04.2008	X-Ray
Ex.A7	03.05.2008	Report of the 3rd Opposite party
Ex.A8	30.09.2008	Legal Notice and acknowledgement cards.
Ex.A9	04.11.2008	Reply of the 2nd Opposite party.
Ex.A10	21.11.2008	Rejoinder and acknowledgement cards
Ex.A11	25.07.2008	Letter from the complainant to the 2nd opposite party.
Ex.A12	25.07.2008	Courier Acknowledgement P.O.D.
Ex.A13		Prescription sheets.
Ex.A14	07.01.2012	Opinion from Dr.A.Srinivasan stating that the dental procedure done for me

 

COMPLAINANT SIDE EVIDENCE:

PW1	K.Yuvanedhi

 

LIST OF DOCUMENTS FILED BY THE  OPPOSITE PARTY:

 

Ex.B1	30.12.02	Consent form
Ex.B2		Doctor’s admission noties, check list, Clinical chart, Nurses notes, Operation notes, Drug Chart
Ex.B3		Clearance slip, Instructions to tonsillectomy patients and pre-operative Anaesthesia-Assessement chart.

 

OPPOSITE PARTY SIDE EVIDENCE:

RW1	Dr.Ravi k.Viswanathan
RW2	Dr.Jayakumar

 

 

MEMBER  I                                                                          PRESIDENT