DISTRICT CONSUMER DISPUTES REDRESSAL FORUM
SOUTH 24 – PARGANAS ,
AMANTRAN BAZAR, BARUIPUR, KOLKATA-700 0144
C.C. CASE NO. 245_ OF ___2015
DATE OF FILING : 27.5.2015 DATE OF PASSING JUDGEMENT: 26.02.2018
Present : President : Ananta Kumar Kapri
Member(s) : Subrata Sarker & Jhunu Prasad
COMPLAINANT : Mrs. Alo Sikder, wife of Sanjoy Kumar Sikder of 70, Ramchandra Pally, Barisha, Kolkata – 8, P.S Haridevpur.
O.P/O.Ps : 1. Dr. Bappaditya Sikdar ,BDS, Dental Point, 210, Diamond Apartment, Diamond Harbour Road (Barobari Stoppage, Opp. Bank of Maharastra), Kol-8,P.S Thakurpukur , Residence as Mentioned above.
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J U D G E M E N T
Sri Ananta Kumar Kapri, President
Intolerant with tooth ache, the complainant approached the Chamber of the O.P, who is a BDS , on 20.3.2015. But she had to bear the burnt of the negligence of the O.P, as goes the submission of the complainant.
The facts leading to the filing of the instant case may be epitomized as follows:
The complainant , a lady, approached the chamber of the O.P on 20.3.2015 ,when she cannot tolerate the severe pain of a tooth on the left side of upper jaw. The affected tooth was pointed to the O.P by finger by the complainant and the O.P kept her on some medication for three days, giving out that the affected tooth would have to be extracted three days after. X-ray of the affected tooth was also taken by the O.P on that date and it was also divulged to the O.P by the complainant that she was a diabetic patient associated with cardiac ailment. Thereafter, on 24.3.2015 the complainant again went to the chamber of the O.P who applied anesthesia on the affected part of the gum and asked the complainant to wait outside his chamber for a few minutes. This time ,she felt breathing difficulty and her voice was about to be chocked. The condition was reported to the O.P and, then and then, the O.P restored the complainant to normalcy by making her to smell something. The tooth of the complainant was then extracted by the O.P. But, pain of tooth did not show any sign of abatement. However, she returned to her home and the O.P asked her to report back on 31.3.2015 for removal of stitch. On 31.3.2015 stitch was removed and the O.P gave out that there was no problem with the tooth of the complainant ,although she was having a pungent taste of pus inside her mouth .
It was on 2.4.2015 when she happened to discover that the very affected tooth of her ( which is technically called no.5 tooth) was not extracted by the O.P doctor and that the O.P doctor extracted another tooth just adjacent to the affected tooth i.e tooth no.5. Recurrence of pain made the complainant restless and she rushed to Dr. Soma Halder, MDS for getting relief. Dr. Halder extracted the tooth no.5 of the complainant and it was opined by Dr. Halder that the tooth extracted by the O.P need not be extracted and should have been cured by Root Canal Treatment (RCT).
According to the complainant, the O.P did not take due care in treatment of her ; he negligently extracted another tooth instead of the affected tooth i.e tooth no.5, causing harassment and mental agony to her. So, she has come up before this Forum by filing the instant case, praying for payment of compensation amounting to Rs.80,000/- and litigation cost Rs.10,000/-. Hence, this case.
The O.P has filed written statement ,contending inter alia that he has never been negligent in the treatment of the complainant. According to him, he examined the complainant thoroughly. So far as the treatment of her tooth was concerned, he found that the teeth nos. 6 and 7 were affected. Tooth no.5 was never affected and there was no pain felt by the complainant relating to tooth no.5. So, he extracted tooth no.6 and suggested root canal treatment for tooth no.7 and this was done on 23.3.2015 by him after taking verbal consent from the complainant. The tooth no.5 was not at all affected. He treated the complainant with utmost care and skill and there was no negligence on his part and so far as the treatment of the complainant is concerned, there is no cause of action for initiating the case against him by the complainant and, therefore, the complaint should be dismissed in limini.
Upon the averments of both sides the following issues are formulated for proper adjudication of the case:
- Is the O.P guilty of medical negligence as alleged by the complainant?
- Is the complainant entitled to get relief or reliefs as prayed for ?
Evidence of the parties:
Both the parties have filed affidavits-in-chief which are kept in the record. The questionnaires and replies filed by them are also kept in the record.
DECISION WITH REASONS
Point nos. 1 and 2:
It is submitted by the complainant herself that she is so unfortunate that the doctor has extracted her another tooth instead of the affected tooth. According to her, such act on the part of the O.P Doctor is a glaring instance of negligence and such kind of negligence should be dealt with in iron hand, because unless it is done, the mischievous element will gradually raise ugly heads and destroy the healthy fabric of the society in entirety.
Ld. Lawyer appearing for the O.P has contended that there was no negligence on the part of the O.P doctor, while rendering the treatment to the complainant . Accordingly to him, it is the treating physician who is the best person to ascertain what tooth is to be extracted, because his duty is to ensure comfort and good health to the complainant. It is further submitted by him that tooth no.5 was not at all affected when the complainant made visit to the chamber of the O.P and , therefore, the O.P extracted the tooth no.6 of the complainant, having detected clinically and readiographically the morbid condition of tooth no.6.
We have gone through the evidences on record as adduced by both sides. Considered all these along with the submissions made by and on behalf of the parties. While perusing the materials on record, our notice is struck to a vital thing which transpires on the prescription granted by the O.P. There are two prescriptions ( Xerox ) dated 20.3.2015 and 3.4.2015 on record and these prescriptions and the genuineness of the prescriptions have not been ever disputed by the O.P. A careful perusal of these two prescriptions reveals that there is no mention of any registration number of the O.P on the prescriptions. Mention of registration number on the prescription is a mandatory duty of each and every physician and the absence of such number on the prescription is nothing but an example of negligence on the part of the physician. As there is no registration number mentioned on the prescription of the O.P, we may hold that the name of the O.P does never appear on the roll maintained by the State Dental Council. If this be so, the O.P does not have any right to practice, but he goes on practicing , showing himself as a doctor having BDS degree. Is it not negligent on the part of the O.P? It is surely a negligent act on the part of the O.P. It is not only a negligent act but also a fraudulent act on the part of the O.P. We may also judge the matter from a different angle. It may so happen that the O.P has registration number but due to bonafide mistake it has not been mentioned in the prescription. In that case also, one thing becomes most palpable and the thing is that the O.P forgot to mention his registration number ,if he has any, on the prescription due to his negligence only.
So, considered the matter from two angles, we come to hold that the O.P doctor is negligent by nature ,especially when he is to deal with the treatment of such a grave nature which may also cause the life of the patient to be endangered.
The O.P has stated in his written statement that he took the consent of the complainant before extracting the tooth, although it is given out by the complainant that no consent was taken from her by the O.P. Implied consent was certainly taken by the O.P from the complainant. Complainant went to the chamber of the O.P for the purpose of extraction of her tooth and this implies that the complainant had the consent in the extraction of tooth by the O.P. But “Implied consent” is not “Informed consent”. Every doctor is under a strict obligation to take “Informed consent “from the patient during the treatment or operation. Informed consent means the physician will have to inform the patient pros and cons of the proposed treatment , application of anesthesia if any, the reaction of medicine or anesthesia, if any, the effect of the proposed treatment etc. Had the O.P informed the complainant about the fact that anesthesia would be applied to her during extraction and that such application of anesthesia could have a sort of reaction, the complainant would not have felt illness such as suffocation or chocking of throat after application of anesthesia before extraction of tooth. She has certainly undergone a kind of harassment and mental agony during that period and it was only due to the negligent act of the O.P. She would not have gone through such torment if the O.P had divulged the effect of the application of anesthesia to her that time. So, regards being had to this aspect, we feel no hesitation to hold that informed consent was not taken from the complainant by the O.P and thus the O.P has committed the act of negligence while rendering treatment to the complainant.
Then comes the main question as to whether the O.P extracted tooth no.6 instead of tooth no.5 for whose extraction the complainant approached the O.P.
The complainant made her last visit to the chamber of the O.P on 3.4.2015 and prior to this date she was lastly examined on 31.3.2015. On 3.4.2015 the O.P detected having heard the complaint of the complainant, her husband and her daughter that tooth no.5 was also having a fracture at its vertex and it is so mentioned by the O.P in the prescription dated 3.4.2015 issued by him. The Xerox copy of that prescription is kept in the record. From the contents of this prescription dated 3.4.2015, it can very well be held that tooth no.5 of the complainant was affected as it also got fractured as mentioned in the prescription dated 3.4.2015 of the O.P. it is submitted by the O.P that he examined the patient i.e the complainant on 31.3.2015 prior to 3.4.2015 and that many a thing could have happened by this time. According to him, the complainant got her tooth no.5 fractured by some other means. The complainant was examined by the O.P on 31.3.2015 and there is no mention on the prescription dated 31.3.2015 ( it is written on the reverse page of prescription dated 20.3.2015) that the tooth no.5 of the complainant was affected. But prescription dated 3.4.2015 mentions it. Can there be such a fracture of tooth no.5 of the complainant within this gap of three days. Two explanations are possible in this case. It might have been that the fracture was sustained by the complainant on her tooth no.5 within those three days or the O.P negligently did not extract the said tooth when the complainant went to him for treatment.
Let us now see, which thing is possible having regard to the theory of preponderance of probability. The complainant has mentioned in her complaint that she felt pain in tooth no.5 which was fractured one. She was examined by another doctor namely Dr. Soma Halder on 4.4.2015 and tooth no.5 was extracted by the said doctor. The Xerox copy of the prescription of said doctor is also filed herein and it is revealed from that prescription that tooth no.5 was having vertical fracture. This prescription of Dr. Halder has not been disputed by the O.P. From all these, it is determined that tooth no.5 of the complainant was affected one. According to the complainant for the treatment of this tooth she went to the O.P. If this statement of the complainant is rejected as being a lie, we can believe the averment of the O.P that tooth no.5 of the complainant was not at all affected on the date of extraction of tooth by him. But we have come to see that the O.P is negligent in all respects. It appears to us that negligence has entered into the soul of the O.P and that has been pointed out by us in our previous discussions. A man can be best known by his conduct ,not by his external appearance . Regards being had to the negligent conduct of the O.P as pointed out above vis a vis the complainant’s version that she went to the O.P for treatment of her tooth no.5 , we cannot discard the averment of the complainant having branded her a liar. On the other hand, we do hold having considered the preponderance of probability that the tooth no.5 was already affected and the O.P did not extract the said tooth and instead of extracting the said tooth negligently extracted another tooth i.e tooth no.6 just adjacent to tooth no.5. But such kind of act is not expected from the O.P and it is found that the O.P has committed medical negligence as alleged by the complainant.
Point nos. 1 and 2 are thus answered in favour of the complainant.
In the result, the case succeeds.
Hence,
ORDERED
That the complaint case be and the same is allowed on contest against the O.P with cost which is quantified as Rs.10,000/-.
The O.P is directed to pay a compensation of Rs.40,000/- along with cost as referred to above, within a month of this order, failing which the amounts of compensation and cost will bear interest @ 12% p.a till realization.
Let a free copy of this order be given to the parties concerned at once.
President
We / I agree.
Member Member
