DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION

PATIALA.

                                      Consumer Complaint No. 454 of 15.11.2019

                                      Decided on:              14.2.2023

Tara Chand aged 75 years son of Roshan Lal r/o H.No.1232, Gittu Bawa Street, Nabha, District Patiala.

                                                                   …………...Complainant

                                      Versus

Dr.Karan Gera, of City Smiles Dental Care, Opp. College Ground, Near Hira Mahal Nabha, District Patiala.

                                                                   …………Opposite Party

Complaint under the Consumer Protection Act

QUORUM

                                      Hon’ble Mr. S.K.Aggarwal, President

                                      Hon’ble Mr. G.S.Nagi,Member        

PRESENT:                             Complainant in person

                                      Sh.Y.S.Rathore, counsel for the OP.                   

 ORDER                                          

1. The instant complaint is filed by Tara Chand (hereinafter referred to as the complainant) against Dr.Karan Gera (hereinafter referred to as the OP/s) under the Consumer Protection Act (for short the Act).

The averments put forth by the complainant are as follows:

That the complainant approached the OP for fixing the teeth set .The OP assured the complainant that the teeth set would be fixed without surgery and without pain and the complainant will feel good and eat the food, vegetables and fruits after transplanting the teeth. On the assurance of the OP, the complainant agreed to take teeth set of Italy made. The complainant admitted in the dental clinic of the OP on 20.6.2019 vide OPD No.19/062801.On that day OP received Rs.10,000/- from the complainant for beginning of treatment. Bite registration was done by the OP on 29.6.2019 and thereafter on 2.7.2019 implant surgery was done and teeth set was fixed in the mouth of the complainant.

2. Before conducting the surgery OP received Rs.1,00,000/- on 1.7.2019 from the complainant. On 3.7.2019 and 5.7.2019, the OP again received Rs.20,000/- and Rs.50,000/- totaling Rs.1,80,000/- was charged by the OP from the complainant
3. After some days of treatment complainant suffered pain in his mouth and felt that teeth set was not fixed at their places and jumping in the mouth when  he takes meals and fruits. Complainant approached the OP and requested for setting of teeth. When the OP checked the mouth of the complainant teeth set had fallen in his hand and the OP refused to fix the teeth set in the mouth of the complainant. The complainant requested for the refund of the amount of Rs.1,80,000/- charged from him by the OP but the  OP  refused to refund the amount. The complainant issued legal notice dated 22.10.2019 through his counsel, which was replied on 1.11.2019 on vague grounds. Thus, the act and conduct of the OP amounts to deficiency in service by not treating the complainant carefully which also amounts to clear cut medical negligence on the part of the OP. Consequently, prayer for acceptance of the complaint has, thus, been made.
4. Upon notice, OP appeared through counsel and filed the written statement having taken various preliminary objections.
5. On merits, it is admitted that the complainant approached the OP for the surgical placement of implant and fabrication of teeth set as a patient of the OP. The complainant visited the dental clinic of the OP on 20.6.2019 and agreed for the minimal surgical procedure for the placement of dental implant after the entire procedure was explained to him. On 28.6.2019  vide OPD No.19/062801  complainant visited the OP to get the treatment and following procedure was performed:

1. Primary diagnostic impression were made.
2. Full mouth X-ray done (Orthopantomo gram) &
3. Intra oral photographs taken.

6. It is also admitted that the complainant deposited in advance Rs.10,000/- for beginning of the said treatment. It is further admitted that on 29.6.2019 Bite registration was done by the OP and jaw relations were recorded. On 2.7.2019 surgical placement of implants was done under Local Anesthesia under aseptic conditions after following the proper sterilization protocol and implant placement protocols. It is denied that any amount was received on  3.7.2019 and 5.7.2019 from the complainant and it was wrongly mentioned by the complainant. Infact on 3.7.2019 Tryin was done of the denture by the OP before the complainant’s daughter who had accompanied him and on 5.7.2019 final denture insertion was done. Proper instructions of maintenance of oral hygiene and eating pattern were explained and demonstrated in detail and precautions to be taken were given. The OP has surgically fixed a total of 13 implants (7 in the upper jaw and 6 in the lower jaw). The prosthesis (denture) is installed on the implants which need adjustments according to the need of the patient during the follow up treatment and specific and careful following of the precautionary measures as explained in detail to the complainant and his daughter. The complainant did not visit the clinic for follow up and adjustment of the said denture inspite of repeated calls from the OP. After the implant procedure, the patient was called for routine check up on 8.7.2019 when the fitting of the teeth set was found to the satisfaction of the complainant. The OP again instructed the complainant to keep proper oral hygiene and to take all precautions, explained to him.On 24.7.2019, complainant came with a complaint that he was unable to chew properly from one side of the denture, whereupon immediately denture adjustments were made, which is a regular procedure in such cases where the patient is old i.e. about 75 years of age. Again on 26.7.2019 the complainant was called for, for follow up check up when the condition of the implant/teeth set was found to be good. On 3.8.2019 again minor denture adjustments were done and oral hygiene , precautionary instructions were inforced as the complainant had not been maintaining proper oral hygiene and correct eating pattern, demonstrated and taught to him in the clinic itself. On 6.8.2019, the complainant was recalled for regular follow up where the dental implant condition was found to be  to the satisfaction of the complainant. Again he was called on 23.8.2019 wherein it was found that the complainant had not maintained his oral hygiene and his eating pattern was not correct to which the complainant agreed and all instructions were again reinforced. On 19.9.2019 the complainant visited the dental clinic with a complaint of loosening of lower teeth set in his mouth. On examination the lower jaw denture got dislodged .Thereupon the said denture was re-cemented by the OP immediately, adequate adjustments made and the complainant was recalled for follow up next day.Again on 20.9.2019 the complainant was examined thoroughly and everything was found good to the satisfaction of the complainant, he had no complaint then. It is thus amply clear that the complainant has wrongly alleged that proper and timely dental treatment was denied to him. Even repeatedly a number of mobile/telephone calls were made to the complainant from clinic number to come for regular checkups but he did not turn up. There is thus no deficiency in service or medical  negligence on the part of the OP since each step of the dental implant procedure was systematically followed as per the set norms and the cause of denture dislodging is due to the complainant’s carelessness and lapse in following the proper precautions and instructions time and again explained to him. After denying all other averments made in the complaint the OP has prayed for the dismissal of the complaint.
7. In support of the averments made in the complaint, complainant furnished his affidavit,Ex.CW1/A, amended affidavit Ex.CW1/B. He has also produced documents Ex.C1 OPD slip, Ex.C2 copy of hand written slip with regard to receiving of amount,Ex.C3 copy of legal notice,Ex.C4 postal receipt,Ex.C5  reply of  legal notice,Ex.C6 denture (teeth set),Ex.C7 x-ray, Exs.C8 &C9 copies of PGI reports,Ex.C10 income tax return and closed the evidence.
8. On the other hand, the OP tendered in evidence Ex.OPA his affidiavit, alongwith documents, Ex.OP1 copy of degree of bachelor of dental surgery(BDS), Ex.OP2 copy of degree of Masters of Dental Surgery (MDS), Ex.OP3 copy of full mouth x-ray of the complainant, Ex.OP4 copy of OPD card  of City Smiles Dental Care, Ex.OP5 details of calls record between the complainant and OP, Ex.OP6 journal/case study on Prosthodontic Management (Neuromuscular disorders), Ex.OP7 pen drive containing audio recording between complainant and OP, Ex.OP8 transcript of the audio recording in the pen drive and closed the evidence.
9. We have heard the complainant, ld counsel of the OP and have also gone through the record of the case, carefully.
10. The allegation of the complainant is that the treatment has not been done by the OP properly. The complainant has placed on record treatment card of OP Ex.C1 showing the treatment from 28.6.2019 to 8.7.2019.
11. From the perusal of the record on the file i.e.OP3, copy of full mouth X-ray of the complainant,Ex.OP4, OPD card of City Smiles Dental Care, Ex.OP5 details of calls record between the complainant and OP, Ex.OP6 journal/case study on Prosthodontic Management (Neuromuscular disorders),Ex.OP7 pen drive containing audio recording between complainant and OP and Ex.OP8 transcript of the audio recording in the pen drive, it transpires that the complainant has failed to prove  that there was any gross negligence or deficiency of service on the part of the OP/doctor.
12. Here, ld. counsel for the OP has argued that the prosthesis (denture) was installed on the implants which need adjustments according to the need of the patient during the follow up treatment, which was done to the satisfaction of the complainant. He was also advised for regular checkups and follow ups but the complainant did not follow the instructions with regard to regular check up and follow ups even though the OP made number of mobile/telephone calls to him vide Ex.OP5 and OP7. The complainant has also failed to take precautionary measures as explained to him with regard to keep proper oral hygiene and to take all precautions and not to eat any hard food item.
13. The complainant has placed on record X-ray, Ex.C7 dated 18.10.2019, which he has got done from Luxmi Bai Institute of Dental Sciences & Hospital. No report with regard to x-ray has been placed on record by the complainant. We have given a minute reading of the X-ray from which the implants were found to be intact and sound. This X-ray again matches with the X-ray (Ex.OP3) carried out by the OP on 14.11.2019 in their clinic, which again corroborates  that implants were intact even on 14.11.2019.
14. Complainant has further placed on record, prescription slip of PGI MER Ex.C8 wherein it has been mentioned that ‘patient complaining of improper fitting of denture’. It is also mentioned that patient is on medicine for neurological problems. In the dental history it is mentioned that patient had undergone implant 5 years back and on examination it was found that implant supported complete denture (both upper and lower)  and the patient/complainant was referred to prostheses for expert opinion. In the outpatient card Ex.C9 of PGI it is mentioned that the patient wants to replace his missing teeth. In the past medical history the complainant was the patient of hypertension and was on medication. Here it  is important to note that in the PGI OPD card dated 11.11.2019, the complainant had both sets of upper and lower denture intact whereas in the 2^nd OPD card of PGI dated 4.3.2020 the lower denture was absent, which shows that he has got the lower denture removed from some dental practitioner.
15. The complainant has alleged in his affidavit that OP had refused to fix the lower denture. This averment of the complainant is not tenable because from the perusal of the written statement as well as the affidavit of the OP it transpires that as and when the complainant visited the clinic of the OP with any complaint they attended the complainant and made the denture adjustments to the satisfaction of the complainant even they have showed their willingness to make adjustments & re-adjustments to the denture setting of the complainant. The complainant could not rebut this fact. The complainant was also asked for regular follow ups and checkups but he did not go for regular checkups and follow ups despite the fact that the OP made telephone calls to him in this regard, as is evident from the document, Ex.OP5.
16.  The neurological conditions as found with the complainant would be the cause of Occlusal disturbances and oral manifestations. If there was any problem to the patient/Tara Chand he should have visited the OP for getting the treatment done but he kept mum inspite of telephonic calls made by the OP.
17. The complainant has also placed on record prescription slip of Rajindra Hospital, Patiala. This document also does not extend any help to the complainant as there is no mention of improper treatment or deficient service with regard to implantation done by the OP. Thus from the record produced by the complainant it could not be established by cogent and convincing evidence that any deficient or negligent service was provided by the OP in giving the treatment. Even the record of PGI does not suggest any gross negligence of deficiency of service on the part of the OP.
18. Ld. counsel for the OP has argued that the implant of denture has been done by the OP rightly and it is also one of the modes/ methods of treatment, which the complainant could not rebut. Ld. counsel for the OP has vehemently argued that the complainant has not produced any expert evidence or opinion on the record in support of his allegation that there was any gross negligence or deficiency of service on the part of the OP in giving the treatment.
19. In this regard reliance can be placed on the judgment passed in the case titled as Mr.Arun K. Engineer Vs. Dr.Milind Karmarkar decided by the Hon’ble State Consumer Disputes Redressal Commission, Maharashtra on 5 June, 2009, wherein reference has been made to the ruling of  the case of Kiran Bala Rout Vs. Christian Medical College and Hospital & Ors., reported in II(2002) CPJ 131(NC), wherein it has been held that, absence of expert evidence on behalf of the complainant, no negligence or deficiency in service could be found against affidavits filed by the doctors. It has been held in several cases that negligence must be established and not presumed.’ In the instant case also the complainant has neither produced sufficient material nor examined any expert witness to show that OP/Dr. was negligent in doing dental implants and treatment to the complainant. It is found that serious charges leveled by the complainant against the OP doctor remained on papers only.
20. Reliance can also be placed on the judgment dated 5.12.2023, passed by the Hon’ble State Consumer Disputes Redressal Commission, Hyderabad in the case titled as Yusupova Saodat, Hyderguda Vs. Dr. Sowjanya Kancha, decided on 5 December,2013, wherein reference of orders of the Hon’ble Commission passed in FA 1258/2008 dated 23.3.2009 has been made having held that, simply because a patient has not favorably responded to a treatment given by a doctor or a  surgery has failed the doctor cannot be held straight way liable for medical negligence by applying the doctrine of res ipso loquitor and that no sensible professional would intentionally commit an act or omission which would result harm or injury to the patient since the professional reputation of the professional would be at stake and that a single failure may cost him dear in his lapse.’
21. Also in C.P.Sreekumar(Dr.), MS(Ortho) Vs.S.Ramanujam, reported in (2009)7 SCC 130, the Hon’ble Supreme Court has held that ‘onus of proving medical negligence lies on complainant. Mere averment in complaint is not evidence and it is to be proved by cogent evidence. The Hon’ble National Commission, in Mrs.Shantaben Muljibhai Patel and others Vs. Beach Candy Hospital and Research Centre and others, reported in 1(2005)CPJ 10(NC), came to the conclusion that when the hospital equipped with necessary equipment and doctors performed duties to best of their ability and with due care and caution, something if goes wrong, no negligence/deficiency in service is to be proved. In Subhashis Dhir and Another Vs. Smt.Sanjukta Sengupta and others, reported in 1999(3)CPR 13(NC), the Hon’ble National Commission opined that doctor should not be held guilty of giving wrong treatment without some medical evidence to that effect.In a decision reported in 2009(2)SCCLA 629 in Martin F D Souza Vs. Mohd Ishfaq, it was held that medical PR actioner would be liable  only where his conduct fell below that of the standards of a reasonably competent practitioner in his field and that standard of care has to be judged in the light of knowledge available at the time of the incident and not at the date of the trial.It was also held that in the said decision that Test in fixing negligence is the standard of the ordinary skilled  doctor exercising and professing to have that special skill, but a doctor need not possess the highest expert skill.’
22. In this case also there is no dependable evidence from the side of the complainant that the OP/Dr. conduct fell below that of the standard of a reasonable competent practitioner in this field. Moreso, as per the literature pointed out by the ld. counsel of the OP, the dental implantology has become a widely accepted mode of treatment because of its ability to restore esthetics and function it has become the preferred option for replacing hopeless and missing natural teeth. Despite its high success rate, however, many complications have been encountered with its use with the passage of time. The doctor being expert and having requisite qualification on the subject in this case, cannot be held guilty for gross medical negligence or deficiency of service lightly. Consequently, the instant complaint fails and the same is hereby dismissed with no order as to costs.
23.           The instant complaint could not be disposed of within stipulated period due to heavy rush of work, Covid protocol and for want of Quorum from long time.
85109252238716.  

DATED:14.2.2023

                                             G.S.Nagi                    S.K.AGGARWAL

                                            Member                              President