Petitioner is a Professor at NSS College, Vazhoor, Kottayam. The first opposite party is an Orthodontist & Dentofacial Orthopaedist and the second opposite party is a Dental Surgeon. Both of them are husband and wife and are jointly running Orthodentic and Dental speciality Centre under the name and style as “Smile Care” at Kottayam. Petitioner approach the first opposite party for consultation and treatment in connection with dental problem. First opposite party removed and extracted the second upper molar tooth on 11..2..2006. According to the petitioner consequent to the removel of tooth there was a complaint of purulent nasal discharge and infection at the site of the tooth extraction. Subsequently there was a continuous pain in the left side of the head, due to infection, and opposite party prescribed certain Antibiotic Medicines that had been continued for more than a couple of weeks. Petitioner states that due to the severe problems relating to extraction of the tooth she approached the opposite parties again

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but they were very negligent and had expressed helplessness in doing further treatment for her. Due to the negligence of the opposite parties the petitioner had taken to Medical College Hospital, Kottayam on 25..3..2006. After a thorough check up and diagnosis at Medical College Hospital, Kottayam it was found that due to the deficiency in the service rendered by the opposite party petitioner had caused left oroantral Fistula and bilateral maxillary sinusitis. Petitioner was advised by concerned Doctor of Medical College

for an immediate surgeory for pulmo vascular bone grafting and rupture of the sinus membrane during careless extraction of the tooth. Petitioner states that due to the deficiency in service rendered by the opposite party. Petitioner had to meet huge expenditure. So, petitioner claims for a damage in the tune of Rs.1,09,113 from the opposite party along with 12% interest and cost of the proceedings.

Opposite party filed version contenting that petition is not maintainable. According to opposite party the teeth of the petitioner was grossly decayed. First opposite party offered possibilities of either root canal treatment or tooth extraction. Petitioner opted for extraction of tooth. As the teeth was grossly decayed , it crumbled during extraction and only two of the three roots came with forceps extraction the remaining root was removed surgically. According to opposite party they had given all necessary post extraction instructions to the petitioner and given medicines to prevent and reduce inflamation. Opposite party denied the contention of the petitioner that the petitioner that consequent to the extraction of the tooth their was purulent nasal discharge and infection at the site of the tooth. Petitioner reported back, on the next day of the tooth extraction, with swelling and pain and a vague sensation in relation to the nostril during breathing. First opposite party taken a detailed history and conducted

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clinical exmination. First opposite party prescribed antibiotics, analgestic – anti-inflammatory drugs and decongestant medications added. Petitioner was given standared instruction and advised to review after 2 days. The petitioner reported after 2 days and her condition was improved. Petitioner reported after a week and she was advised to reported there after if she developed any problem The petitioner did not report there after and was lost to follow . According to opposite party there was no negligence or deficiency in service on the part of the opposite party. They contented that alleged ora antral fistula is a complication that can arise in case of upper molar extraction. First opposite party states that he has taken care in extraction of the tooth of the petitioner. Tooth was grossly decayed one and procedure of extraction had taken morethan usual time and it indicates, the decayed and damaged states of the extracted tooth and care and, attention given by the first opposite party. So, the opposite party prays for a dismissal of the petition with their costs.

Points for determinations are:

i) Whether there is deficiency in service on the part of the opposite parties?

ii) Reliefs and costs.

Evidence in this case consists of affidavit filed by both parties and Ext. A1 and A2(a) on the side of the petitioner and Ext. B1 on the side of the opposite party.

Point No. 1

Case of the petitioner is that due to the deficiency in service on the part of the opposite party petitioner caused left oroantral Fistula and bilateral mixillary sinusitis. The petitioner produced O.P ticket issued from Medical College, Kottayam. The petitioner had not produced any expert evidence to prove that due to the negligence and

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deficiency in service on the part of the opposite party, in extracting the tooth, he had caused left oroantral Fistula and bilateral maxillary sinusitis. We are of the opinion that in a case of medical negligence the petitioner have to examine an expert on the subject to establish his allegation of negligence on the part of the doctor. The Hon'ble Supreme Court in Indian Medical Association Vs. V.P Santha (reported in 1996 (3) CPJ (1) (SC) stated that heavy burden is cast upon the petitioner to prove medical negligence. We are of the opinion that apparant case of medical negligence and others are required to prove by expert evidence. So, without any such expert evidence we cannot attribute any negligence or deficiency in service on the part of the opposite party. Point No. 1 is found accordingly.

Point No. 2

In view of finding in point No. 1 petition is to be dismissed. Considering the facts and circumstances in the case no cost and compensation is ordered.

Dictated by me transcribed by the Confidential Assistant corrected by me and pronounced in the Open Forum on this the 31^st day of December, 2008.