In the Court of the
Consumer Disputes Redressal Forum, Unit -I, Kolkata,
8B, Nelie Sengupta Sarani, Kolkata-700087.
CDF/Unit-I/Case No.185/2009
1) Miss. Priyanka Saha,
Siddeswari Garden, Flat No-208, 2nd Floor,
181, Dum Dum Road, P.S. Dum Dum, Kolkata-74. ----------- Complainant
---Versus---
1) Dr. Om Prakash Agarwal,
C/o Smile Craft Dental Treatment Centre
HA-43, Salt Lake City, Kolkata-97
Residence: 18A, Mayfair Road, Kolkata-19.
2) Belle Vue Clinic,
9, Loudon Street,
P.S. Shakespeare Sarani, Kolkata-17.
3) Dr. Abhijit Mahata,
C/o Smile Craft Dental Treatment Centre
HA-43, Salt Lake City, Kolkata-97.
4) Dr. R. Mondal,
C/o Maa Durga Diagnostic Centre,
Good Luck House, P-62,
CIT Scheme-VII (M), Kolkata-54. ---------- Opposite Parties
5) Dr. Uttam Deb, MDS, Associate Professor,
Dr. R. Ahmed Dental College & Hospital, Kolkata,
Residing at Uttarayan Apartment, BL-B, Flat No.5A,
40, Dum Dum Road, P.S. Dum Dum, Kolkata-74. ---------- Proforma Opposite Parties
Present : Sri Sankar Nath Das, President.
Smt. Sharmi Basu, Member
Order No. 34 Dated 31/12/2012.
The petition of complaint has been filed by the complainant Miss. Priyanka Saha against the o.ps. Dr. Om Prakash Agarwal and others. The case of the complainant in short is that the complainant sometime in the month of June 2007 started suffering from tooth pain and slight swelling of the gum for which she consulted o.p. no.3, Dr. Abhijit Mahata of Smile Craft Dental Treatment Centre on 21.6.07. Complainant states that o.p. no.3 noted his observations in the prescription dt.21.6.07 after examining the complainant at his centre and advised for x-ray of OPG (Jaws) which was subsequently and immediately done at Maa Durga Diagnostic Centre. The complainant having done x-ray of OPG (Jaws as advised by o.p. no.3 and went to him with the x-ray plate which was then examined by o.p. no.3 on 21.6.07 and noted his further clinical observations therein the said prescription without any (a) specific diagnosis (b) existence of mandibular cyst and (3) reasons for referring the complainant to o.p. no.1 who is also attached with said dental treatment center at Salt Lake City. O.p. no.3 verbally told the complainant that there are sufficient reasons for her to panic about her tooth and she needs advanced surgical dental treatment from o.p. no.1. Complainant states that she rushed to o.p. no.1 for consultation on 24.6.07 at the aforesaid dental treatment centre at Salt Lake City. O.p. no.1 then verbally told the complainant and her father who accompanied her daughter that the complainant needs immediate dental surgery to avoid serious danger and to protect all her live teeth intact. O.p. no.1 advised the complainant for admission in Belle Vue Clinic on 25.6.07 at 6-00 a.m. in his prescription dt.25.6.07. Complainant being an innocent patient of o.p. no.1 accordingly got admitted in o.p. no.2 clinic on 25.6.07 vide regn. no.271502 in room no.406 as arranged by o.p. no.1. Complainant has been admitted in this clinic on 25.6.07 under o.p. no.1 for undergoing an operation namely E/O Mandibular Cyst without having and referring the source of this specific diagnosis which required surgery. Complainant was discharged from o.p. no.2 clinic on 26.6.07 as per hand written discharge summary and certificate issued by o.p. no.1 dt.26.6.07 on the printed format of o.p. no.2 clinic as if o.p. no.1 is the authorized signatory of o.p. no.2 as their pay rolled surgeon. The said hand written discharge summary and certificate dt.26.6.07 does not mention anything about so called surgery of mandibular cyst as mysteriously mentioned in the certificate issued by Sri T.N. Bhattacharjee, Manager-Administration of o.p. no.2 clinic on 25.6.07 or actual performance of surgery for extraction of one live tooth (the original extracted tooth is lying with the complainant which was delivered by o.p. no.1 to the complainant’s father immediately after its extraction in the OT at o.p. no.2 clinic on 25.6.07. the complainant was admitted on 25.6.07. The duration of surgery by o.p. no.1 at o.p. no.2 clinic was one hour from 8-00 a.m. to 9-00 a.m. on 25.6.07. No statuary and standard pre-operative radiological or other examination / test was done prior to surgery in order to ensure that the complainant was fit to sustain surgery under GA as per total bill referred hereinbefore. No expert opinion and/or second opinion from any other dental surgeon was obtained/secured taken by o.p. no.1 any time before this intentional, vindictive and wrongful extraction of one live tooth of the complainant in order to confirm his decision for such unwanted extraction. His own prescription dt.24.6.07 also does not allow him to go for extraction of one live tooth of the complainant under general anesthesia at o.p. no.2 clinic on 25.6.07. Thus o.p. no.1 was conscious / serious about his willful and vindictive delinquency, malfeasance and negligence in discharging his professional duties as fair dental surgeon.
Nowhere in the discharge summary and certificate issued by o.p. no.1 or o.p. no.2 dt.26.6.07, extraction of tooth which was mandatory obligation on the part of attending surgeon to be complied with pertaining to each and every surgery. Complainant was with proper medication as per instruction of o.p. no.1 as mentioned / advised in the discharge summary and certificate dt.26.6.07 as her residence immediately after discharge on 26.6.07 from o.p. no.2 clinic till night of 28.6.07. On 29.6.07 morning the complainant started feeling new type of severe pain and other unexpected oral painful symptoms.
Finding no alternative and realizing the deceitful act of o.p. no.1 and with heavy heart the complainant’s father then moved the complainant to the proforma o.p. no.5 Dr. Uttam Deb and the complainant got much relief having swallowed prescribed medicines and followed other procedures suggested by Dr. Deb. The complainant with all this severely painful and unbearable sufferings, however made her preparations and finally appeared in her final M.A. (English ) Examination from Presidency College, Kolkata under University of Calcutta in the very first week of July 2007 and ultimately got first class but unfortunately missed much expected ranking within top five in CU as a whole.
In the result, the complainant has lost an opportunity to build her academic result in MA (English) final examination in 2007 with first class and within top five in the University of Calcutta for ever only due to above explained mischievous, vindictive, willful, intentional, wrong and unwanted surgical extraction of one live tooth and subsequent ill treatment (both pre and post hospitalization by o.p. no.1.
The allegation of the complainant is that o.p. no.1 in collusion with other o.ps. underwent operation in the gum of the complainant having an ulterior motive for gain without prior investigation and even going through x-ray report etc. and proper diagnosis, resulting in huge sufferings of the complainant. Hence the case was filed by complainant with the prayer contained in the petition of complaint.
Herein the instant case o.p. no.1 i.e. Dr. Om Prakash Agarwal did not appear in this case despite receipt of notice which is apparent from the record and the a/d card is lying with the record and the matter was heard ex parte as against o.p. no.1.
O.p. nos.2,3,4 and 5 had entered his appearance in this case and o.p. nos.2,3 and 4 by filing w/v denied all the material allegations labeled against them and prayed for dismissal of the case. Here it is to be mentioned that o.p. no.5 has been impleaded as proforma o.p. in this case by complainant and no relief has been sought for against o.p. no.5.
Decision with reasons:--
We have gone through the pleadings of the parties, evidence and documents in particular. It is seen from the record that the complainant sometimes in the month of June 2007 was suffering from tooth pain and swelling in her gum for which consulted with Dr. Abhijit Mahata, o.p. no.3 on 21.6.07 and o.p. no.3 noted his observations in the prescription dt.21.6.07 after examining the complainant and advised for x-ray of OPG (Jaws) and which was done under o.p. no.4 and o.p. no.3 after examining the complainant referred to o.p. no.1 i.e. Dr. O.P. Agarwal, Consultant Oral and Maxilofacial Surgeon and o.p. no.1 examined the complainant at his centre and immediately arrange for x-ray of the complainant’s pain affected tooth at the said centre on 24.6.07, but no x-ray plate was given to the complainant despite several requests on behalf of the complainant and o.p. no.1 suggested immediate dental surgery to avoid danger and to protect all the life teeth of the complainant and o.p. no.1 insisted for urgent surgery on the said plea and accordingly, complainant was admitted at the hospital of o.p. no.2 as per direction of o.p. no.1 of 25.6.07 on 6-00 a.m. and this will be revealed from the prescription of o.p. no.1 vide dt.24.6.07. It further reveals from the record that prescription dt.24.6.07 of o.p. no.1 does not provide any specific diagnosis in the shape of mandibular cyst and complainant was admitted in o.p. no.2 clinic in the morning of 25.6.07 under o.p. no.1 for undergoing an operation viz. E/O Mandibular Cyst and the same date o.p. no.1 took up operation of the gum of the complainant without any specific diagnosis and was released on 26.6.07 and the said o.p. no.1extracted one live tooth for the reasons best known to him and it is not understood what prompted o.p. no.1 to operate the gum of the complainant without proper diagnosis nor even going through the x-ray report also and there is no existence and operation of mandibular cyst of the prescription of o.p. no.1 but there is no mention of mandibular cyst in the discharge summary and certificate issued and signed by o.p. no.1. Signature of o.p. no.1 appearing in discharge summary dt.26.6.07 and the receipt of Rs.16,000/- on the same date appears to be the signature of o.p. no.1 both the cases and that being the position o.p. no.1 cannot shirk off his responsibility being a specialist surgeon for undergoing such an operation without proper diagnosis and even without going through x-ray report also which is unethical and unbecoming a doctor and there is no mention of mandibular cyst either in the “Case Summary” or in the “Treatment” in the discharge summary and certificate dt.26.,6.07 and there is no whisper of cyst.
From the prescription of o.p. no.5 there is no mention of mandibular cyst. From the report of Dr. Amit K. Roy, FFDRCS, Consultant Oral and Maxilofacial Surgeon, Okhard Hospital and Kidney Institute, CMRI vide report dt.17.9.07 in response to the letter dt.14.9.07 issued by father of the complainant and it is mentioned in the said report vide para E that the word ‘mandibular cyst’ is not written in Dr. R. Mandal’s x-ray report. In my opinion, x-ray OPG showed presence of apical lesion in both mesial and distal root of mandibular first molar with involvement of bifurcation area. Presence of all four impacted wisdom teeth. I could not detect any carious lesion present in the teeth mentioned in Dr. R. Mndal’s report and there is also mentioning in the said report “In the x-ray reort there was no presence of mandibular cyst”. It is further evident from the record that x-ray was done on 21.6.07 and report is dt.26.7.07 and there is no whisper of mandibular cyst in report dt.26.7./07 of Maa Durga Diagnostic issued by o.p. no.4.
On perusal of the entire materials on record minutely and in view of the findings above it is crystal clear to this Forum that o.p. no.1 being a specialist dental surgeon has committed medical negligence towards the consumer / patient / complainant and we find flaws in course of diagnosis as well as treatment and moreover, in case of post operative cares, whilst in particular complainant had to consult proforma o.p. no.5 for her relief after exertion of best operative care vide prescription dt.27.6.07 and 1.7.07 and this principle has been settled principles of law to decide there has been caused any medical negligencies or not by any medical practitioner as per observations of the Hon’ble Supreme Court of India and all these principles are present here and o.p. no.1 had sufficient negligencies so far as the aforesaid principles are concerned. It is pertinent to mention here that aforesaid report dt.17.9.07 of Dr. Amit K. Roy is treated as ‘expert opinion’ and we rely upon the said report while arriving at a decision.
Now complainant has alleged that o.p. no.1 in collusion with o.p. nos.2,3, and 4 underwent operation of the complainant in her gum in improper manner and unethically, but on perusal of the entire materials on record minutely together with evidence in particular we find that complainant has failed to prove her allegation so far as allegations against o.p. nos.2, 3, and 4 are concerned. More precisely there is no direct evidence adduced by the complainant in her evidence to substantiate and prove her allegation against o.p. nos.2, 3, and 4 as per her allegation lodged in her petition of complaint and complainant has failed to substantiate her allegation so far as o.p. nos.2, 3 and 4 are concerned and we find no negligencies on the part of o.p. nos.2, 3 and 4 from the materials on record available.
Now in view of the findings above we hold that o.p. no.1 had sufficient medical negligencies while operating upon the complainant without proper diagnosis and x-ray etc. and he had deficiencies in course of diagnosis as well as treatment and including post operative cares and o.p. no.1 cannot shirk off his responsibilities at all and that apart, o.p. no.1 did not contest the case even after valid service of summons, as such, evidence adduced by the complainant as well as documents produced by the complainant have remained unchallenged testimony so far as o.p. no.1 is concerned and o.p. no.1 is liable to compensate the tremendous sufferings of the complainant caused owing to his negligent act.
Hence, ordered,
That the case is allowed ex parte with cost against o.p. no.1 and disallowed against o.p. nos.2,3,4 and 5 on contest without cost. O.p. no.1 is directed to pay a sum of Rs.7,50,000/- (Rupees seven lakhs fifty thousand) only to the complainant for the permanent loss of one live tooth at the age of 22 years and the huge sufferings as compensation and o.p. n o.1 is further directed to pay litigation cost of Rs.10,000/- (Rupees ten thousand) only to the complainant and o.p. no.1 is further directed not to recur such type of things in future and the action on the part of o.p. no.1 is highly unethical and unbecoming a medical practitioner. The aforesaid order shall be complied within 45 days from the date of communication of this order, i.d. an interest @ 9% shall accrue over the entire sum due to the credit of the complainant till full realization.
Supply certified copy of this order to the parties free of cost.
