D.O.F:30/06/2017
D.O.O:05/05/2022
IN THE CONSUMER DISPUTES REDRESSAL COMMISSION KASARAGOD
CC.No.133/2017
Dated this, the 05th day of May 2022
PRESENT:
SRI.KRISHNAN.K : PRESIDENT
SRI.RADHAKRISHNAN NAIR.M: MEMBER
SMT.BEENA.K.G : MEMBER
Neelakandan.P.K, aged 57 years,
Puthan Purakal House,
Ottayammalam, Konnakad, : Complainant
Kasaragod District
(Adv: Mohanan Nambiar.M)
And
Dr. C.H. Sumesh B.D.S
DENTAL SURGEON, Reg. No: 4185 : Opposite Party
Vellarikundu.P.O, Vellarikundu
Kasaragod District
(Adv: Shyam Padman & Anupama Balakrishna)
ORDER
SRI.KRISHNAN.K : PRESIDENT
The complaint filed under section 12 of consumer protection Act 1986. The case of the complainant is that on 06/02/2017 he consulted Opposite Party dentist for his dental problem. After examination the Opposite Party removed tooth and stitches were removed after few days. Later he felt severe pain and bleeding from his mouth. He could not talk or take food. He consulted the Opposite Party again on 13/02/2017, 18/02/2017 and 19/02/2017, Opposite Party prescribed medicine for pain but did not examine in detail in spite of request and complaint of severe pain. Due to severe pain he went to Deepa Clinic Kanhangad, from their referred to Father Mullers Hospital Mangalore, admitted there until 11/04/2017. He spent more than 1.75 lakh for treatment. But still he is not completely cured. Requires further treatment. It is revealed that maxillary sinus was opened during tooth extraction by the Opposite Party without providing proper post – operative precautions in treatment. The Opposite Party was negligent and careless in treatment. Entire complications were occurred due to gross deficiency in service and the complaint suffered financial loss. The service rendered by Opposite Party is casual, careless, and defective. Complainant sent a notice claiming compensation. Opposite Party sent a false reply. Complainant suffered mental agony. He claims Rs. 1.75 lakh as medical expenses, Rs. 50,000/- for further treatment and Rs. 2.5 lakh towards mental agony with interest and cost.
2. The Opposite Party filed written version denying the allegations in the complaint. According to Opposite Party he is a graduate in dentistry worked in dental clininc, started his own clinic in 2000. Qualified, experienced and specialized in all branches. He admits complainant visited on 08/02/2017 with pain and swelling on the upper left maxillary region and with request for extraction of 3 moles. It was the offending truth causing the pain. Patient insisted the extraction not given history of prior illness. During removal tooth got fractured, decided surgical extraction with consent of the patient sutures were put and patient was advised for suture removal after 5 days. The complainant again reported on 11/02/2017. There was mild swelling, adviced antibiotic to avoid infection. Advised to came after some days. Reported on 18/02/2017 complaint of coughing and sneezing . There after the patient did not turn up for review. Clinical photo taken on 13/04/2017 shows healing of the wound . there is no deficiency in service , negligence, mental agony or financial loss. Complainant is not entitled for any reliefs and hence liable to be dismissed.
3. The complainant is wife filed chief affidavit and cross examined as Pw1 Ext A1 to A10 documents marked. District Medical Board produced Ext X1 certificate. Discussing the documents on the complainant side Ext A1 and A2 are the priscriptions, Ext A3 is the discharge summary of Father Mullers hospital Manglore, Ext A4 discharge summary from Kanhangad, Ext A5 the lawyer notice, Ext A6 is the reply notice, Ext A7 is the lab report, Ext A8 is the medical bills, Ext A9 is the transaction bill, Ext A10 is the certificate.
4. The Opposite Party filed chief affidavit and was cross examined and Dw1 and another witness as Dw2 also examined Ext B1 series marked from their side.
Considering the contentions raised by both parties following points arise for consideration:
- Whether there is any gross medical negligence as alleged from the part of the Opposite Party in the treatment given to complainant.
- Whether there is any deficiency in service from the part of Opposite Party
- Whether complainant entitled for the relief sought in the complaint? If so for what reliefs?
All the points discussed together
5. The Pw1 is cross examined by Opposite Party . she says that she did not read and understand the version filed by the Opposite Party. Affidavit is filed after reading and understanding. She admits the contents of A1 to A10 documents were not understood to her. No complaint of the treatment given from Father Mullers Hospital Mangalore . She admitted the photo of her husband’s mouth marked as Ext B1 series. She deposed that expert opinion alone will prove the negligence in treatment. Pw1 denies the suggestion that she was deposing falsehood and denied the suggestion that no mental tension, no financial loss caused by Opposite Party and thus Opposite Party is not liable for compensate.
6. The Opposite Party entered in the box cross examined as Dw1 by the complainant. He admits that tooth extraction is not permitted to patients with high BP. He denied the suggestion of any medical negligence or complication due to medical negligence. He has no objection to the treatment as per Ext A3. The Opposite Party examined Dw2, who is a professor of dental college Kannur. He deposed that there is no medical negligence from the side of Dw1. Ext X1 shown to witness. He admits 2 options of the treatment of the complainant namely extraction of teeth surgical removal of the palatal shelf. Extraction is usually being done. Dw2 admits that he come by his own expenses. He is not able to remember details of the oral medicine given to the complainant. He denied suggestion having given false evidence. IA 97/2018 filed by the complainant to order medical examination of the medical board is allowed Medical board report filed, but no mention is made about any negligence in treatment.
7. Regarding medical negligence cases the observations in Mahadev Prasad Kaushik Vs State of Up and other (2008) 14 SCC 47, where the Supreme Court held that the negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs would do or doing something which a reasonable and prudent man would not do. In Prbhakaran Vs State of Kerala (2007 (3) KLT 400 (SC) the Supreme court noticing the distinction between culpable homicide and rash and negligent act causing death held that criminal negligence is the gross and culpable neglect or failure to exercise that reasonable and proper care and precaution. Negligence has been defined as lack of proper care and attention. Culpable carelessness is the breach of a legal duty of care. A breach of this duty gives the patient right to initiate action against negligence.
8. All medical professionals, doctors, nurses are responsible for the health and safety of their level of quality care. The Supreme Court of India considered three essential components of negligent duty, breach and resulting damage. A case of occupational negligence is different from one of professional negligence. A simple lack of care and error of judgement or an accident is not proof of negligence on part of the health professional. So long as a doctors follows practice acceptable to the profession of that day in the region. She/he cannot be held liable for negligence merely because a better alternative course or method of treatment was also available. No case for the complainant that complications occurred due to extractions infections requiring hospitalization.
9. 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 performance to the other one available, he would not be liable if the course of action choosen by him was acceptable to the medical profession. In the case of Jacob Mathew (DV) Vs State of Punjab and Anr-III (2005) CPJ 9SC it was held by the Apex Court that a physician cannot and does not guarantee that the result of the surgery. In Martin F D’souza Vs Mohd Ishfcq (AIR 2009 SC 2049) the Supreme court observed, the law like medicine, is an inexact science. One cannot predict with certainly on outcome of many cases”. 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 error of judgement.
The learned counsel for complainant produced the judgment in M/s PRS hospital KillipalamVs Anilkumar 2020 Supreme (Ker)883 RFA No 131 of 2020 which is not matching the facts of the instant case, where an young healthy man gone to appellant hospital for treatment. After operation he turned paraplegic and speech. In the instant case the complainant having many earlier health issues.
In Chanda Rani Akhouri Vs Dr. M.A Methu Sethupathi (2022 live law (SC) 391/ CA 6507 of 2009/20 April 2022 Justice Justice Ajay Rastagi and Abhay S. Oka, ,it is held , defficiency in service cannot be alleged without attributing fault, imperfection, short coming and inadequacy in quality and nature and manner of performance which is required to be performed by a person.
No cogent evidence by way of the affidavit of the doctor /specialists, who found some deficiency in the treatment /surgery alone by the Opposite Party, has been filed. In view of the above discussion we are of the considered opinion that the complainant has not produced any convincing evidence to establish medical negligence on the part the Opposite Party. Consequently the complainant failed to establish medical negligence or deficiency in rendering service on the part of the Opposite Party. In view of above finding the complaint is dismissed without order as to costs.
Sd/- Sd/- Sd/-
MEMBER MEMBER PRESIDENT
Exhibits
A1 & A2- Prescriptions
A3- Discharge summary
A4- discharge summary
A5- Lawyer notice
A6- Reply notice
A7- Lab report
A8 series- Medical bills
A9- Transaction bill.
A10- Certificate.
B1- Photograph
X1- Medical certificate
Witness Examined
Pw1- Radha
Dw1- Dr. Sumesh Kumar. C.H
Sd/- Sd/- Sd/-
MEMBER MEMBER PRESIDENT
Forwarded by Order
Assistant Registrar
Ps/
