BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, JALANDHAR.
Complaint No.183 of 2019
Date of Instt. 27.05.2019
Date of Decision: 09.03.2021
Jyoti Gupta aged about 37 years wife of Vishal Gupta son of Sita Ram Gupta resident of 247, Hardeep Nagar, Old Hoshiarpur Road, Jalandhar City.
..........Complainant
Versus
1. Clove Dental Clinic, 545 IInd Floor, Above West Side, Model Town, Jalandhar through its Proprietor.
2. Dr. Ajay Mohan Maxillofacial Surgeon Clove Dental Clinic 545 IInd Floor, Above West Side, Model Town, Jalandhar.
….….. Opposite Parties
Complaint Under the Consumer Protection Act.
Before: Sh. Kuljit Singh (President)
Smt. Jyotsna (Member)
Present: Sh. Shivji Lal, Adv. Counsel for the Complainant.
OPs No.1 & 2 exparte.
Order
Kuljit Singh (President)
1. The instant complaint has been filed by the complainant, wherein averred that she developed a severe pain in her wisdom tooth and the pain agony and suffering was very severe and unbearable than the complainant got medical advised from OPs/respondents and the OP No.1 advised the complainant to get x-ray from the hospital on 30th August 2018 and on 31st August 2018 the O P No.1 suggested surgery after going through the x-ray of the complainant and complainant has deposited Rs.3000/- in the hospital for the surgery and it excludes the expenses for medicines which the complainant bear and taken it from outside. Hence the complainant becomes the consumer of OPs. That on 31.08.2018 the OP No.2 conducted surgery ejaculated the wisdom tooth of the complainant and the OPs gave their opinion that swelling and healing will take 72 hours and the stitching of the wounds will remove after 15 days and the same was accordingly done from OPs hospital. However, the pain does not subsists even after that, rather on the other hand swelling increased and mouth of the complainant became stiff and it was hard to open and chewing was virtually painful and impossible for the complainant and in addition to that the lower left side of the complainant particularly the chin, lips, tongue have become very painful and nimb and the life of the complainant become a hell due to that surgery. The same was told to the OP No.2 he opined that all above said organs are remodeling and will automatically heeled after a particular period approximately after 15 days rehabilitation will start. However, this opinion of the OP No.2 was a wishful thinking but on the other hand the complainant pain increased and aggravated to the no end, henceforth. The opinion of the OP No.2 was nothing but only a false excuse and he cannot re-exonerated for medical negligence of the OP No.2 while conducting the surgery. That when the pain became unbearable for the complainant, she has taken opinion from other medical experts hospitals and surgeon of the repute, which includes on 06.10.2018 Jalandhar OPG Centre, Near Bus Stand and has spent Rs.600/- for the scan of her mouth, the scanning report was shown to the OP No.2 but even after going to the scan report the OP No.2 has again give a lame excuse that all the injuries and pain are in healing process. Whereas it was clear that the lower bone of jaw on left side was broken while doing the surgery by the OPs, because the OP No.2 was medically negligent in performing his duty during the surgery and as well as it is against the medical ethical guidelines as given in the guidelines of Punjab Medical Manuals of Punjab Government medical council instructions and it is slur on the medical profession to conduct surgery in a negligent way to then to give false excuse pretending it to be a successful surgery. Another opinion was taken from Dr. Naresh Kumar of Doaba Dental Clinic, Doaba Chowk, Jalandhar who has given opinion that while doing the surgery bone was fractured. That again to be sure the complainant got advice and opinion from Dr. Shukla from Central Town, Jalandhar who has again referred the complainant to Dr. Vinay Aggarwal of Shaheed Udham Singh Nagar, Jalandhar who has given opinion that while doing surgery, not only bone was fractured but nerve of the jaw is also damaged and injured and whole the skull had developed severe pain, agony and suffering which is unbearable and in aggregative from and recommended the scan again and complainant got scanning from Bharat Scan Centre, Jalandhar and the scan confirm the nerve injury which further develop pain in left ear and Dr. Bowry, ENT Specialist has given opinion that otherwise there is no problem developed in left ear but due to injury to the nerve the complainant has got the severe pain in her left ear. Then again Dr. Soneet Aggarwal, HP Ortho Care, Jalandhar has given the same opinion. Dr. Gurpreet Kaur, Bits and Bites has sent to the specialist Dr. B. S. Prahar who has also given the same opinion. The complainant has also got opinion from Dr. Ravi Narula of Guru Nanak Dev Dental College Sunam and in all this complainant has spent about Rs.1,00,000/- on medical opinion and scanning. The complainant also visited the specialized opinion from Chandigarh at Dr. Sachdeva of Smile Innovators Pvt. Ltd. Shop No.24, Phase-3. B-2, Mohali, Chandigarh, he opinioned that there is severe problem of preasthesia and opined that many teeth have virtually become dead and useless and there is never injury and it causes continuous pain to the complainant. The cop again was referred to Dr. Rahul Kalra, Dental and Smile Care India at Chandigarh and has given opinion that due to above said injury of IAN nerve injury and preasthesia and he also advised psychological treatment of the complainant as well and opined that the complainant had devolved physiological problem due to that injury to nerve and bone which is very painful and unbearable and opinion of the doctor is that the injury, pain and agony may or may not be healed it may or may not carry throughout life. Further the complainant is doing private job for her livelihood and bread and butter and is helping her family life with her husband and for the study and upbringing of her two minor children aged about 14 years and 8 years respectively. The daughter namely Aesha Gupta is in the process of growing and at the critical juncture of her life, she requires the cares and upbringing of her mother but to these injuries and negligence of OP No.2 while conducting surgery the complainant is unable to give attention to her daughter and son and as such due to injury she was not able to attend to her daily routine and cannot go to her job and at present she is jobless and moreover whereas she was a helping hand to her husband in family affairs and economic condition of the family but due to this surgery and injury she has become liability on her husband rather than to help him to upbringing their children and husband is further was forced to take many leave from his work which further aggravated the economic conditions and due to the psychological problem which developed due to negligent act of OP the studies of children is adversely effected. Moreover, the husband of the complainant is further at loss as he is not enjoying consortium of the family life and this surgery made him to suffer in his domestic life and further his burden has increased manifold, though the damages occurred to the complainant cannot be measured in terms of money still the complainant suffer the loss in many heights on the negligent act of the OPs to the tune of Rs.18,00,000/- and further future loss of amenities of life loss of happiness, pain, agony, suffering and the expenses and she has to bear all the expenses throughout life and as per the opinion of doctors she has also developed psychological problems which are magnified and further aggravated with the advancement of life may kindly be given to the complainant. That the act of the OPs No.1 & 2 regarding the gross medical negligence in treating the complainant amounts to deficiency in service on the part of the OP and as such, necessity arose to file the present complaint with the prayer that the complaint of the complainant may be accepted and OPs be directed to pay to the complainant a sum of Rs.18,00,000/- as compensation for gross medical negligence in treating the complainant and be further directed to pay Rs.1,00,000/- as litigation expenses and any other relief which this Forum deems fit may also be granted to the complainant.
2. Notice of the complaint was given to the OPs, but despite service both the OPs did not come present and ultimately, both the OPs were proceeded against exparte.
3. In order to prove his respective version, the counsel for the complainant produced on the file his respective evidence.
4. We have heard the argument of learned counsel for the complainant and also gone through the case file very carefully.
5. The complainant has tendered her affidavit as Ex.CW-1/A on the record. She alleged gross medical negligence in treating her on the part of OPs. Ex.C-2 is copy of receipt of payment of Rs.600/-. Ex.C-3 is photograph of denture. Ex.C-4 to Ex.C-9 are prescription slip of the doctor. Ex.C-10 is copy of document. Ex.C-11 to Ex.C-17 are prescription slip of the doctor.
6. On the other hand, OPs have not produced any evidence in support of their case because they were proceeded exparte by this Commission as they have not appeared before this Commission despite service.
7. The complainant alleged that the complainant developed a severe pain in her wisdom tooth and the pain agony and suffering was very severe and unbearable than she got medical advised from OPs/respondents and the OP No.1 advised her to get x-ray from the hospital on 30th August 2018 and on 31st August 2018, OP No.1 suggested surgery after going through her the x-ray and she deposited Rs.3000/- in the hospital for the surgery and it excludes the expenses for medicines which she bear and taken it from outside. Hence she becomes the consumer of OPs. On 31.08.2018, OP No.2 conducted surgery ejaculated the wisdom tooth of the complainant and the OPs gave their opinion that swelling and healing will take 72 hours and the stitching of the wounds will remove after 15 days and the same was accordingly done from OPs hospital. However, the pain does not subsists even after that, rather on the other hand swelling increased and her mouth became stiff and it was hard to open and chewing was virtually painful and impossible for her and in addition to that her lower left side particularly the chin, lips, tongue have become very painful and her life become a hell due to that surgery. The same was told to the OP No.2 he opined that all above said organs are remodeling and will automatically heeled after a particular period approximately after 15 days rehabilitation will start. However, this opinion of the OP No.2 was a wishful thinking but on the other hand the complainant pain increased and aggravated to the no end, henceforth. The opinion of the OP No.2 was nothing but only a false excuse and he cannot re-exonerated for medical negligence of the OP No.2 while conducting the surgery. That when the pain became unbearable, she has taken opinion from other medical experts hospitals and surgeon of the repute, which includes on 06.10.2018 Jalandhar OPG Centre, Near Bus Stand and has spent Rs.600/- for the scan of her mouth, the scanning report was shown to the OP No.2 but even after going to the scan report the OP No.2 has again give a lame excuse that all the injuries and pain are in healing process. Whereas it was clear that the lower bone of jaw on left side was broken while doing the surgery by the OPs, because the OP No.2 was medically negligent in performing his duty during the surgery and as well as it is against the medical ethical guidelines has given in the guidelines of Punjab Medical Manuals of Punjab Government medical council instructions and it is slur on the medical profession to conduct surgery in a negligent way to then to give false excuse pretending it to be a successful surgery. Another opinion was taken from Dr. Naresh Kumar of Doaba Dental Clinic, Doaba Chowk, Jalandhar who has given opinion that while doing the surgery bone was fractured. She alleged that she got advice and opinion from Dr. Shukla from Central Town, Jalandhar who has again referred her to Dr. Vinay Aggarwal of Shaheed Udham Singh Nagar, Jalandhar who has given opinion that while doing surgery, not only bone was fractured but nerve of the jaw is also damaged and injured and whole the skull had developed severe pain, agony and suffering which is unbearable and in aggregative from and recommended the scan again and complainant got scanning from Bharat Scan Centre, Jalandhar and the scan confirm the nerve injury which further develop pain in left ear and Dr. Bowry, ENT Specialist has given opinion that otherwise there is no problem developed in left ear but due to injury to her nerve, she has got the severe pain in her left ear. Dr. Soneet Aggarwal, HP Ortho Care, Jalandhar has given the same opinion. Dr. Gurpreet Kaur, Bits and Bites has sent to the specialist Dr. B. S. Prahar who has also given the same opinion. She has also got opinion from Dr. Ravi Narula of Guru Nanak Dev Dental College Sunam and in all this she has spent about Rs.1,00,000/- on medical opinion and scanning. The complainant also visited the specialized opinion from Chandigarh at Dr. Sachdeva of Smile Innovators Pvt. Ltd. Shop No.24, Phase-3. B-2, Mohali, Chandigarh, he opinioned that there is severe problem of preasthesia and opined that many teeth have virtually become dead and useless and there is never injury and it causes continuous pain to the complainant. The cop again was referred to Dr. Rahul Kalra, Dental and Smile Care India to Chandigarh and has given opinion that due to above said injury of IAN nerve injury and preasthesia and he also advised psychological treatment of the complainant as well and opined that the complainant had devolved physiological problem due to that injury to nerve and bone which is very painful and unbearable and opinion of the doctor is that the injury, pain and agony may or may not be healed it may or may not carry throughout life. She alleged that she has to bear all the expenses throughout life and as per the opinion of doctors she has also developed psychological problems which are magnified and further aggravated with the advancement of life may kindly be given to the complainant. The act of the OPs No.1 & 2 regarding the gross medical negligence in treating the complainant amounts to deficiency in service on the part of the OPs.
8. From perusal of entire record on the file it is clear that OPs not provided better services to complainant. Ex.C-10 is copy of report prepared by Dr.Shekhar Kapoor MDS Consultant Oromaxillofacial Radiologist is vital document on the record. He specified mentioned in this report, which is reproduced as under:-
“tooth missing 38,
oblique osteolytic area is seen with ill-defined borders w.r.t 38 region, osteolytic area is seen extending till the angle of mandible with break in continuity of both lingual and buccal cortical plates.
Bony segment appears to be displaced medially and superiorly.
Impression:- Findings are suggestive of fracture involving the left angle of mandible with displaced segments.
OPs have not produced anything on the record in support of their case. Dr. Naresh Kumar of Doaba Dental Clinic, Doaba Chowk, Jalandhar who has given opinion that while doing the surgery bone was fractured. Dr. Vinay Aggarwal of Shaheed Udham Singh Nagar, Jalandhar who has given opinion that while doing surgery, not only bone was fractured but nerve of the jaw is also damaged and injured and whole the skull had developed severe pain, agony and suffering which is unbearable. Dr. Bowry, ENT Specialist has given opinion that otherwise there is no problem developed in left ear but due to injury to her nerve, she has got the severe pain in her left ear. Dr. Soneet Aggarwal, HP Ortho Care, Jalandhar has given the same opinion. Dr. Gurpreet Kaur, Bits and Bites has sent to the specialist Dr. B. S. Prahar who has also given the same opinion. She has also got opinion from Dr. Ravi Narula of Guru Nanak Dev Dental College Sunam.
9. All the above said doctors given opinion in favour of the complainant that OPs are negligent and deficient in providing services to her. The fact of medical negligence is settled by Apex Court has also held in case of titled as Nizam Institute of Medical Sciences vs. Parasnath S. Dhananka & Ors 2009 (2) CPC 402 (SC) that once the complainant had discharged initial burden, it was incumbent upon hospital authorities to prove that they had done their duty without any negligence on their part which they have failed to do.
“A professional may be held liable for negligence on one of the two findings: either he was not possessed of the requisite skill which he professed to have possessed, or, he did not exercise, with reasonable competence in the given case, the skill which he did possess. The standard to be applied for judging, whether the person charged has been negligent or not, would be that of an ordinary competent person exercising ordinary skill in that profession. It is not possible for every professional to possess the highest level of expertise or skills in that branch which he practices. A highly skilled professional may be possessed of better qualities, but that cannot be made the basis or the yardstick for judging the performance of the professional proceeded against on indictment of negligence.”
10. The fact of medical negligence is also proved from judgment Savita Garg vs. Director National Heart Institute reported in (2004) 8 SCC 56 it has been observed as under:
"Once an allegation is made that the patient was admitted in a particular hospital and evidence is produced to satisfy that he died because of lack of proper care and negligence, then the burden lies on the hospital to justify that there was no negligence on the part of the treating doctor or hospital. Therefore, in any case, the hospital is in a better position to disclose what care was taken or what medicine was administered to the patient. It is the duty of the hospital to satisfy that there was no lack of care or diligence. The hospitals are institutions, people expect better and efficient service, if the hospital fails to discharge their duties through their doctors, being employed on job basis or employed on contract basis, it is the hospital which has to justify and not impleading a particular doctor will not absolve the hospital of its responsibilities."
11. Negligence is the breach of a duty caused 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. The definition of negligence as given in Law of Torts, Ratanlal & Dhirajlal (edited by Justice G.P. Singh), referred to hereinabove, holds good. Negligence becomes actionable on account of injury resulting from the act or omission amounting to negligence attributable to the person sued. The essential components of negligence are three: "duty", "breach" and "resulting damage".
12. The treatment given to patient by doctor based on liability of medical practitioner. There is an unwritten contract between the two. Patient entrust himself to doctor that doctor agrees to do his best at all times for patient. Such doctor-patient contract is almost always an implied contract except when written informed consent is obtained. This fact is clear from citation of Hon’ble Supreme Court of India in case titled as Dr. P.B Desai vs. State of Maharashtra and another reported in (2013) 6 Supreme Court 450 that due to very nature of medical profession , degree of responsibility on practitioner is higher than that of any other service provider. Concept of doctor-patient relationship forms foundation of legal obligations between doctor and patient.
13. The citation Dr.P.B Desai vs State of Maharashtra (supra) further held that “if patient suffered because of negligent act/omission of the doctor, the same gives right to the patient to sue the doctor for damages. This is a civil liability of the doctor under law or tort or contract. The negligent act of doctor may also give rise to criminal liability as well.” When reasonable care, expected of the medical profession is not rendered, the same amounts to negligence. If doctor fails to perform his duty during treatment then he is liable for medical negligence. The fact of medical negligence is also proved by judgment of Apex Court in V. Krishnakumar versus State of T.N reported in 2015(2) Apex Court Judgments 762 (S.C) wherein it has been held that “Hospital is vicariously liable for the acts of its doctors”. In this case, no document regarding qualification of the doctor is produced to support of his case that he is qualified to perform his duty.
14. Keeping in view the facts and circumstances of the case, we allowed the present complaint and OPs No.1 and 2 are directed to pay Rs.40,000/- as compensation for mental harassment and physical harassment faced by complainant including surgery fee deposited by complainant with OPs. The complainant is also entitled Rs.5000/- as cost of litigation and Rs.5000/- be deposited in the Legal Aid Fund of this Office.
15. The compliance of the order be made within 45 days from receipt of copy of this order.
16. Copies of the order be sent to the parties, as permissible, under the rules.
17. File be indexed and consigned to the record room after its due compliance.
ANNOUNCED IN THE OPEN COMMISSION:
9th Day of March 2021
(Kuljit Singh)
President
(Jyotsna)
Member
