Delhi

East Delhi

CC/215/2012

Smt MeenaParihar - Complainant(s)

Versus

Dr PriyaBalani - Opp.Party(s)

11 Jun 2012

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM (EAST)

GOVT. OF NCT OF DELHI

CONVENIENT SHOPPING CENTRE, SAINI ENCLAVE: DELHI-92

CC No.215/2012:

In the Matter of:

Smt.MeenaParihar

W/o.Sh.SatyajeetParihar

MayurVihar Phase – II, Pocket –F,

Delhi – 110 091

Complainant

Vs.

Dr.PriyaBalani

Dr.Balani’s Medical & Dental Centre

F - 18, Street No.3,Pandav Nagar,

Samaspur Road,Patparganj,

Delhi – 110 091

 

Now At:

87, Shubham Apartment,

37, I.P.Extension, Delhi – 110 092

Respondent

 

                                    Date of Admission: 30/08/2013

                                                                                                     Date of Order         : 31/07/2015

 

 

ORDER

 

Poonam Malhotra, Member:

 

 

The brief conspectus of facts of the present complaint are that feeling pain and trouble in her wisdom tooth the complainant alleges to have approached the respondent for treatment on 08/06/2011.  The respondent prescribed medicines under her prescription dated 08/06/2011and advised her surgery. On 10/06/2011 half of the wisdom tooth was removed by surgery andfee of Rs.2,000/- was charged for it. After the surgery, the complainant continued to have severe pain in her tooth as well as in the adjoining tooth.  In a follow-up visit the complainant apprised the respondent with the post-surgery pain. It is alleged that the respondent told her that the pain would continue for about a month and thereafter it would reduce automatically.  The respondent prescribed further medicines for pain relieving but in vain.  When the situation did not improve the complainant approached Dr.Anurag Singh for second opinion who after necessary investigations and x-ray arrived at a conclusion that propersurgery had not been conducted by the respondent as only half of the tooth had been extracted and the treatment had caused numbness in the right side of the tongue besides causing injury to the adjoining tooth.  He opined for Root Treatment for the damaged tooth.  He also observed that the complainant could not open full mouth due to injuries.  Similar opinions were given by Dr.AnupRazdan of Sir Ganga Ram Hospital, Delhi and the doctors of the All India Institute of Medical Sciences, Delhi.  The aforementioned doctors further advised the complainant immediate surgery of that tooth.  The surgery conducted by Dr.Anurag Singh was successful and the tooth was extracted to the extent of 24 x7mm but pain persists in the adjoining tooth and Root Canal Treatment (also called RCT)was advised for it. The complainant alleges to have spent Rs.20,000/- on the surgery conducted by Dr.Anurag Singh  and for the opinions taken from other doctors.  The complainant continues to have problem in opening her full jaw, pain in the adjoining tooth and numbness in the tongue and for their treatment the complainant requires further treatment worth Rs.50,000/-.  Legal Notice dated 24/02/2012 served by the complainant upon the respondent was of no consequence.  The complainant has prayed for a compensation of Rs.1,90,000/- for medical negligence and mental agony and Rs.20,000/- as litigation cost.

 

 

In response to the notice issued to the respondent, she appeared and filed her written version wherein while admitting the fact that on 10/06/2011she had surgically extracted only half of the toothit is alleged by the respondent that she had called the complainant for further treatment but it is she who did not revert back to her after 10/06/2011.  It is allegedthat all the post-surgery complications were duly explained to the complainant.  She has also raised the pleas of suppression of material facts by the complainant, no cause of action available to the complainant as neither there is any deficiency in the service provided by the respondent nor has she committed any negligence in treating the complainant.  It is contended by her that the treatment administered by her to the complainant was as prescribed in the medical science.  The complaintsof pain and numbness in the right side of the tongue made by the complainant are common complications in the wisdom tooth extraction and it would not cause major discomfort to the complainant. It is also denied that the numbness of tongue is due to brain nerve injury caused to her. The respondent has prayed for the dismissal of the present complaint as not maintainable in view of the Expert Opinion received from the Maulana Azad Institute of Dental Sciences, New Delhi.  Injury to the adjoining tooth while extracting the wisdom tooth is vehemently denied and it is contended that the problem in the adjacent tooth is due to tooth decay.  It is submitted that the respondent had conducted the surgery with all care and precaution.  The respondent has challenged the reports of Dr.Anurag Singh, Dr.AnupRazdan of Sir Ganga Ram Hospital and the doctors of AIIMS.  Rest all of the allegations have been denied.

 

Since in this complaint allegations of medical negligence have been raised by the complainant against the respondent, Expert Opinion was sought from the Maulana Azad Institute of Dental Sciences, New Delhi.  The medical treatment papers alongwith the pleadings of the complainant were forwarded to its Chairman/MS for medical opinion of the Medical Board regarding the deficiency, if any, in the treatment given by the treating doctor, the respondent herein.  The Expert Medical Report was submitted by the Director – Principal of the Maulana Azad Institute of Dental Sciences, New Delhi vide Letter dated 26/04/2013.  Copy of the Expert Opinion Report was provided to the complainant and the respondent on 27/05/2013 and both the parties were directed to file their objections to the said report, if any.  Objections to the Expert Opinion were filed only by the complainant wherein it is alleged by her that the Board of Doctors who gave the report were required to opine whether there was any medical negligence on the part of the respondent doctor in carrying out the surgery of the wisdom tooth of the complainant conducted on 10/06/2011 or not. It is further alleged that the Board of Expert Doctors who had given the said report had failed to consider the medical record submitted by the complainant in support of her case.  It is also contended by her that though the condition of the complainant immediately after the first surgery conducted on 10/06/2011 was required to be taken into consideration for determining the negligence on the part of the treating doctor but the report has been given after examining the dental condition of the complainant as on 26/04/2013 which is post second surgery conducted by Dr.Anurag Singh due to which her condition had improved.   It is alleged that the Board of Doctors had not even considered the Second Opinion Report of Dr.Anurag Singh dated 27/08/2011 obtained by the complainant after her surgery from the respondent wherein Dr.Anurag Singh had advised for the removal of the root pieces left by the respondent at the time of surgery and RCT for the adjoining tooth as it was found by Dr.Anurag Singh that the respondent had injured the adjoining tooth while carrying out the surgery and he advised her Root Canal Treatment (RCT) for its denuded distal root.  It is further alleged that the reports given by Dental Education & Research, OPD of All India Institute of Medical Sciences, Delhi and doctor of Sir Ganga Ram Hospital, Delhi had been ignored while giving the Expert Opinion.  They have even failed to take into consideration the subsequent surgery that was conducted upon the complainant by Dr.Anurag Singh of Surgical Center of Dental Excellence (SCODE), Safdarjung Enclave, New Delhi – 110 029 on 19/08/2011 for the extraction of the Root Pieces of Teeth No. 48 left by the respondent doctor.    It is also alleged that the report is biased and incorrect and she has thus prayed for setting aside the said report.

 

Evidence by way of Affidavit filed by both the parties in support of their respective cases.

 

Heard the parties and perused the entire record.

 

On perusal of the record, it is not in dispute that when on 08/06/2011 the complainant had approached the respondent doctor with complaint of pain and trouble in her wisdom tooth the respondent had prescribed medicines under her prescription dated 08/06/2011 and had advised her surgical extraction of her third mandibular wisdom tooth on 10/06/2011.Now the basic question that needs to be adjudicated upon is as to whether the respondent was negligent in treating the complainant or not?In the present case the complainant has to prove that the respondent doctor did not exercise reasonable care while administering treatment to her to incriminate charges of medical negligence upon the respondent.  It is submitted by the respondent that the treatment administered by her to the complainant is as per the established medical standards and no negligence can be attributed to the treatment given by her.  She has placed reliance upon the Expert Medical Opinion obtained in the case wherein the Medical Board has stated that there appears no medical negligence by the treating doctor in the case of the complainant.The complainant has, however, prayed for the setting aside the medical opinion report of the Medical Board of Maulana Azad Institute of Dental Sciences.  It is in this backdrop that the expert medical opinion sought from the Maulana Azad Institute of Dental Sciences needs to be dissected upon astutely to decide the question as to whether the respondent was negligent in administering treatment to the complainant or not and to decide the present complaint judiciously.Since no absolute standard can be laid by which negligence can be infallibly measured in a case all the facts have to be taken into consideration to determine whether negligence occurred or not.On threadbare perusal of the said Expert Opinion Report, it is observed that the said Expert Opinion is based on the fresh clinical and radiological examination conducted by the Medical Board of Maulana Azad Institute of Dental Sciencesand also on the evaluation of the medical records of the complainant.It is relevant to mention here that as on the date of rendering the medical opinion the complainant had already undergone subsequent to 10/06/2011 a corrective surgery on 19/08/2011, for the surgical removal of the Root Pieces of Teeth No. 48/ the third mandibular wisdom tooth left by the respondent doctor, from Dr.Anurag Singh of Surgical Center of Dental Excellence (SCODE) due to which the exact degree of the alleged negligence and the condition of the complainant immediately after the surgery conducted by the respondent doctor on 10/06/2011 cannot not be ascertained as on the date of giving the expert medical opinion which is approximately about two years from the date of first surgical extraction. The Medical Board hasfailed to appreciate the fact that whatever improvement was observed by them in the complainant was the direct consequence of the treatment given by Dr.Anurag Singh after the treatment given bythe respondent. Further, the respondent has also failed to file on record any cogent documentary evidence in rebuttal challenging the reports of Dr.Anurag Singh, Dr.AnupRazdan and the doctor of the AIIMS.  Besides this, in Para 4 of the Expert Opinion dated 26/04/2013 it is explicitly mentioned that on clinical examination of the complainant she was found to have mild lingual nerve function deficit and they opined that it would  not to cause “Major Discomfort” during her day to day routine. Though they have stated that mild lingual nerve function deficit is a known complication during mandibular third molar surgery (extraction) but they have not ruled out the consistent discomfort that the complainant is suffering and will suffer frommild lingual nerve function deficit caused by the negligent treatment given by the respondent. It is significant to mention here that there is not an iota of evidence that the respondent doctor had prior to the surgical extraction ever brought the complications associated with the mandibular wisdom tooth extraction into the knowledge of the complainant before conducting the surgery and this fact has also been noted by the team of experts who gave their expert opinion in the case.  In these circumstances the contention of the respondent doctor that all post-surgery complications were duly explained to the complainant is also not tenable.Further, the height of mendacity of the respondent in the present case is apparent from her prescription dated 10/06/2011 where she has written down the fact of extraction of the wisdom tooth done by her under LA and the placement of one suture which is in strict contradiction to the admission made by her in Para 4 of her reply on merits in her written statement where she has specifically admitted that she had removed only half of the wisdom tooth during extraction conducted by her on 10/06/2011.   This leaves no room for doubt that the respondent had left behind the root pieces of the said wisdom tooth as confirmed by Dr.Anurag Singh, Dr.AnupRazdan and the doctor of the AIIMS and had also deliberately concealed this fact from the complainant to put a veil on her negligence and had callously left her to writh in excruciating pain which the root pieces of the wisdom tooth that were left behind continued to cause besides the post-surgical pain. It is, thus, significant to mention here that the Medical Board of Maulana Azad Institute of Dental Sciences while giving its opinion in the present case has overtly erred in not taking into account the medical record of the second opinions sought by the complainant from Dr.Anurag Singh of Surgical Center of Dental Excellence (SCODE), Safdarjung Enclave, New Delhi – 29, Dr.AnupRazdan of Sir Ganga Ram Hospital, Delhi and the report given by the doctor of Dental Education & Research, OPD of All India Institute of Medical Sciences, Delhi.  The Board has also blatantly ignored to take into consideration the subsequent corrective surgery done by Dr.Anurag Singh of Surgical Center of Dental Excellence (SCODE) on 19/08/2011 of the complainant for the extraction of the Root Pieces of Teeth No. 48/wisdom tooth left by the respondent doctor. 

With regard to the allegation of the respondent that despite her advice to the complainant of further treatment she did not revert back to her after 10/06/2011 is not acceptable to us as it is evident from the prescription of 17/06/2011 that the complainant had reverted back to her on for the removal of the suture but except for the removal of the suture the respondent had not given any treatment to her. 

Furthermore, it has been explicitly observed by Dr.Anurag Singh that the problem in the adjoining tooth was due to denuded distal root that had resulted during the surgical extraction of the wisdom tooth in question.  The respondent has not placed on record any convincing evidence to rebut the observation of Dr.Anurag Singh and to support her contention that the problem in the adjoining tooth was due to tooth decay. As such we arrive at an inference that denudation of the distal root of the adjoining teeth was the direct consequence of the injury caused to that tooth by the respondent while conducting the surgical extraction of the wisdom tooth but the team of experts have failed to appreciate the medical record of Dr.Anurag Singh while advising us.  It is pertinent to mention here that the Medical Board has overlooked all these afore-mentioned details which were part of the medical record of the patient/complainant that was sent/supplied to it for giving their expert opinion and it is indubitably an error apparent on the face of the record.

 

The present case is an archetypal case where the members of the medical fraternity have brazenly beshielded the respondent doctor who has committed negligence in treating the complainant.Instead of looking into the complaint against the delinquent doctor and assisting this Forum by giving a just and fair expert opinion it has made an explicit attempt to misguide this Forum through its expert opinion to arrive at a justifiable decisionand to vindicate the strength of law.We feel sorry to say that an institute of such a repute which imparts professional education in the concerned field is itself found indulging in such unprofessional conduct.

 

The Hon’ble Supreme Court in its judgment delivered in Martin F. D'Souza vs. Mohd. Ishfaq (Civil Appeal No. 3541 of 2002) on 17^th February, 2009 has expressed the view that since Judges are not experts in medical science, rather they are lay men. This itself often makes it somewhat difficult for them to decide cases relating to medical negligence. Though Judges usually rely on testimonies of other doctors which may not necessarily in all cases be objective, since like in all professions and services, doctors too sometimes have a tendency to support their own colleagues who are charged with medical negligence. So a Court is not bound by the evidence of the experts and the Court must cautiously derive its own conclusion.  From this a clear cut inference can be drawn that Experts’ opinions are not binding on the court in medical negligence cases and to a large extent they are advisory in nature & not conclusive.  It is a weak piece of evidence and is always rebuttable.

 

We strongly feel that dentists like the respondent, who treat their patients as guinea pigs in the guise of giving treatment to them and check their skill when they do not possess any, should be barred from practicing as a dentist by the Dental Council of India and put under suspension for a period in concordance with the degree of negligence of which they are found guilty together with inflicting upon them heavy punitive cost as it will indoctrinate the dentists to work with utmost care and dedication towards their profession so as to preclude them from treating and handling the patients nonchalantly and causing excruciating pain and agony to them.  Since in the case in hand the conduct of the respondent fell below that of the standards of a reasonably competent practitioner in her field, she should not be entitled to get the protection of law.   

 

Coming to the allegation of expenses incurred by the complainant to the tune of Rs.20,000/- on the treatment she had taken from the respondent and the other doctors viz.,  Dr.Anurag Singh, Dr.Anup Razdan and the doctor of the AIIMS and further expenses of Rs.50,000/- demanded by her for getting the Root Canal Treatment alleged to have been thrust upon her by the respondent due to her alleged negligence in treating the complainant,it is pertinent to mention here that though the complainant has placed on record only the receipt of payments made by her to the respondent and Dr.Anurag Singh of Rs.2,000/- and Rs.4,500/- respectively for the treatment taken by her from them but it is a fact that she had incurred expenses on medicines as prescribed by the respondent and the said other doctors from whom she had taken the subsequent treatment and second opinion and the same cannot be ruled out. It is also a fact that she had she had incurred expenses on radiological examination as is evident from the report of Dr.Anurag Singh that he had taken an OPG X-ray (i.e., an Orthopantomogram – a Dental X-ray) for giving his advice. Taking all the facts and circumstances into consideration, the allegation of the complainant is accepted to a limited extent.  We direct the respondent to pay in all Rs.15,000/- towards the expenses incurred and to be incurred by her on her treatment.

 

 

Taking all the facts and circumstances into consideration and in view of the observations and discussion made supra, there is no room for doubt left that the respondent was highly negligent in administering treatment to the complainant which had caused agonising pain and had resulted in the numbness of the right side of the tongue.Failure of the respondent to take reasonable care while treating the complainant had thrust upon the complainant a subsequent corrective surgery and further treatment that could have been well avoided had the respondent taken reasonable care in performing the surgical procedure on the complainant.  It has not only agonized her physically as well as mentally but her family has also suffered.  If she is not well we can very well imagine the trauma which her family has undergone during her illness.  The complainant needs to be compensated for it. The complainant has suffered numbness in her tongue due to which she will have consistent talking problem and it will be a social stigma on her.  We direct the respondent to further pay to the complainant Rs.1,00,000/-towards compensation for the physical and mental agony meted out by her at the hands of the respondent and this amount shall include the cost of litigation cost.  Let the amount be paid within 45 days from the date of this order.  If the respondent fails to pay the entire amount of Rs.1,15,000/- (i.e., Rs.1,00,000/- + Rs.15,000/-) so awarded to the complainant within the stipulated period of 45 days, the complainant shall also be entitled to receive interest on the entire said amount @ 9% p.a. from the date of this order till the amount is finally paid to the complainant. 

 

Copies of the order be supplied to the parties as per rule.Let a copy of this order be sent to The President, Dental Council of India for taking steps to initiate strict action against the respondent doctor who was negligent in treating the complainant and the doctors of the Maulana Azad Institute of Dental Sciences constituting the Expert Teamwhoinstead of assisting this Forum to arrive at a justifiable decision had tried to mislead this Forum in arriving at a justifiable decision.   We strongly feel that such negligent doctors should be dealt with stringently and should not be let off to maintain the belief of the people in the credibility of the doctors.  Copies of this order should also be sent to the Chief Secretary, Govt. of NCT of Delhi and also to the Ministry of Health, Govt. of India and Director – Principal, Maulana Azad Institute of Dental Sciences for necessary follow-up action at their respective ends.  We direct that the action taken by the President of the Dental Council of India and the Government be intimated to this Forum within two months from the date of this judgment.

 

(Subhash Gupta)                             (Poonam Malhotra)                                     (N.A.Zaidi)

        Member                                              Member                                                President