BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL COMMISSION, JALANDHAR.

Complaint No.348 of 2018

      Date of Instt. 27.08.2018

      Date of Decision:22.02.2022

Mrs. Surekha Malhotra wife of Shri Ameer Chand Malhotra, resident of E. J. 114, Kot Pakshian, Jalandhar City (now deceased) through her     L. Rs:

a)       Ameer Chand Malhotra, Husband

b)      Rajbansh Malhotra, Son

c)       Sumeer Malhotra, Son

d)      Sumiti Malhotra, Daughter

..........Complainant

Versus

Dr. Sanjeev Kukreja, B. D. S., Kukreja Dental Clinic, Mata Chintpurni Mandir Road, Mai Hiran Gate, Jalandhar City.

….….. Opposite Party

Complaint Under the Consumer Protection Act.

Before:        Dr. Harveen Bhardwaj             (President)

                   Smt. Jyotsna                            (Member)

                   Sh. Jaswant Singh Dhillon       (Member)                                         

Present:       Sh. S. C. Sood & Sh. Kunwar Sood, Adv. Counsels for                             Complainant.

                   Sh. Ravish Malhotra, Adv. Counsel for the OP.

Order

Dr. HarveenBhardwaj(President)

1.                The instant complaint has been filed by the complainant, wherein it is alleged that the complainant was having dental problem and had accordingly, approached the OP for treatment. The OP had examined the complainant and the complainant also believed the advice given by the OP and the OP had assured that complete denture (set of teeth) was required to be installed and the same would be in alignment with the natural teeth and with the colour of the teeth which would    co-relate with the colour of remaining teeth. That the OP for the said denture initially received Rs.2000/- on 28.03.2017. The complainant had also been examined on 29.03.2017 when the OP took final impression for preparing denture and thereafter on 31.03.2017, even the trial had been taken by the OP. Eventually being satisfied with the    pre-denture condition the OP installed the denture on 03.04.2017 and also received balance amount of Rs.10,800/- on the said occasion. It may be pertinent to mention that the OP was fully satisfied with the denture given by him and did not prescribe any post denture visit or any medicine etc. That it had been assured by the OP that the denture has been installed as per standard medical procedure. That initially reservation of complainant on 03.04.2017 were also ignored and the complainant was assured that the same would settle in proper place. That the complainant observed multiple deficiencies with the denture in the form of discoloration, loose denture was found and the same were brought to the knowledge of the OP. That eventually acknowledging the aforesaid defects the defective denture was received back by the OP on 06.05.2017 i.e. only after 32 days and acknowledgment to that effect was also given. That it is clear that the OP did not prepare the denture as per standard procedure and the same was loose, docile and was loose in nature. The denture had no alignment with the natural teeth of the complainant and was discoloured. That eventually the complainant had to get fresh denture installed from Dr. Wahi of Wahi Dental Clinic, Jalandhar and on the same an amount of Rs.19,500/- had been spent by the complainant. That the complainant has suffered unnecessarily harassment on account of unfair trade medical practice by the OP and to this effect a legal notice dated 15.05.2018 had also been sent to the OP and the OP has given vague and incorrect reply to the said notice on 30.05.2018. It is pertinent to mention though the complainant had been diagnosed with Cancer, but no Radiation whatsoever has ever been given to the complainant as the complainant has feeble heart pumping, even no Chemotherapy had been given in 2017and only Chemotherapy at lower level had been given to the complainant from 12.02.2016 to 22.08.2016. Even otherwise it is unimaginable that the denture so prepared by the OP would fall apart in about 32 days and subsequent denture prepared by Dr. Wahi would remain intact. It may be mentioned that the complainant has undergone Chemotherapy from 05.04.2018 to 07.06.2018 and during the period of Chemotherapy Dr. Wahi installed the denture. That it is clear that the Op is guilty of deficiency in service and unfair medical practice and as such, necessity arose to file the present complaint with the prayer that the complaint of the complainant may be accepted and OPs be directed to pay cost of denture of Rs.12,800/- alongwith interest @ 18% per annum till realization and further OPs be directed to pay damages for mental tension, agony and harassment to the tune of Rs.50,000/- and Rs.10,000/- on account of litigation expenses.                                 

2.                Notice of the complaint was given to the OP, who filed reply and contested the complaint by taking preliminary objections that the complainant has not come before this Commission with clean hands as she has suppressed many material facts from this Commission. So, on this short ground this complaint is liable to be dismissed with heavy cost of Rs.50,000/-. That it is the OP who is sufferer in the hands of complaint as OP has already prepared the set of denture of complainant and its cost is about Rs.15,000/- which the OP has already paid to the person who prepares it. So, on this short ground this complaint is liable to be dismissed with heavy cost of Rs.50,000/-. It is further averred that the complainant is a known case of cancer patient and undertaking radiation therapy treatment from other cancer doctor. This cancer was relapsed within two year back for which she was under treatment and she is very much know about the facts regarding side effects of cancer over the human body. In cancer, biological changes in human body are very common and specifically related to dental tissue cases, a lots of changes has been seen in body like delayed healing, shrinkage of bone, pain and burning suction related to the gums are common in nature which complainant has also gone through. It is pertinent to mention here that the family members of complainant are regularly visiting OPs clinic for routine dental check-ups from the last more than 10-15 years. Complainant came to the clinic of OP on 28.03.2017 with the problem of extraction and told OP about extraction which was done earlier in PIMS Hospital, Jalandhar. She had a lacerated wound with osteomyelitis and at that point of time OP suggested her not to go for further extractions being a cancer patient as complainant had already undertaking chemotherapy from other doctors, accordingly, OP advised the removal partial denture with upper lower jaws. She was explained in detailed regarding the removal partial dentures that the artificial teethes are going to rest on bone with the help of remaining other natural teeth and she had gone that day. On 06.05.2017, she again visited the clinic of OP with dental problem but due to tissue changes in body and medically compromised patient, the gum bleeds and her Heomoglobin gone down due to biological changes related to chemotherapy and radiation effect. Then she again went to the other doctor regarding the chemotherapy of cancer where they suggested future relapse of cancer as said by her and advised total extraction of remaining natural teeth. OP performed standard procedure and extracted under aseptic condition with all antibiotic coverage and suggested for complete denture after a period six months and charged Rs.12,800/- against the surgical extraction and removable denture which was given at that stage of removal partial denture. All these facts are concealed from this Commission by the complainant. So, on this short ground this complaint is liable to be dismissed with heavy cost. That keeping in view the health condition of complainant, the OP has explained in detail the entire denture procedure to complainant whereas she has been told that in denture procedure, in which the artificial teethes are not going to fix in the bone permanently rather the denture only rests on the bone, the bone supports the artificial denture. Thus, OP has performed treatment with all his wisdom, knowledge, experience and precaution while performing standard procedure. On merits, it is admitted that the OP is a dental medical practitioner. It is also admitted that the complainant had also been examined on 29.03.2017 when the OP took final impression for preparing denture, but the other allegations as made in the complaint are categorically denied and lastly submitted that the complaint of the complainant is without merits, the same may be dismissed.

3.                In order to prove the case of the complainant, the counsel for the complainant tendered into evidence affidavit Ex.CA alongwith some documents Ex.C-1 to Ex.C-11 and closed the evidence.

4.                In order to rebut the evidence of the complainant, the counsel for the OP tendered into evidence affidavit Ex.OP1/A and some document Ex.OP-1 and Ex.OP-2 i.e. photographs of dentrue and closed the evidence.

5.                We have heard the learned counsel for the respective parties and have also gone through the case very minutely.

6.                The contention of the Ld. Counsel for the complainant is that there is a negligence and deficiency in service on the part of OP. The complainant was having dental problem, therefore she approached the OP for the treatment on 28.02.2017. The OP assured the complainant that the complete denture is to be installed and it would work with the natural teeth. He has further submitted that on 29.03.2017 the final impression for preparing denture was taken and on 31.03.2017 the trial was taken and on 03.04.2017 the denture was installed by the OP, when he was fully satisfied with the pre-denture condition of the complainant. He never prescribed any post-denture visit or any medicine. He has further submitted that there were multiple deficiencies like discoloration, loose denture occurred with the denture installed by the complainant. When the complainant approached the OP, her denture was received back by the OP and the complainant had to get fresh denture installed from Dr. Wahi from Wahi Dental Clinic. She had given Rs.12,800/- for her denture to OP and spent Rs.19,500/- for installing fresh denture. He has further submitted that though the complainant was diagnosed with cancer, but at the relevant time she was not having any chemotherapy. The OP has acted negligently and the complainant has suffered a lot due to the negligence of the Doctor. Request has been made to allow the complaint. 

7.                The Ld. Counsel for the OP submitted that the complainant is a cancer patient and was undertaking chemotherapy and radiation therapy. He has further submitted that in cancer, biological changes in human body are different and especially in dental tissue cases, a lots of changes are seen like delayed heeling, shrinkage of bone, pain and burning suction etc. He has further admitted that the complainant approached the OP with the problem of extraction and also informed about the extraction got earlier done in PIMS Hospital Jalandhar. He has further submitted that everything was explained to the complainant and she was advised not to go for further extraction being cancer patient, but she did not agree. The cancer was relapsed within two years back for which she again underwent the chemotherapy. The OP performed standard procedure and extracted under aseptic condition with all antibiotic coverage and suggested for complete denture after a period of six months. She was suggested to fix new complete denture after six months as at that time removable partial denture was fixed. Being a cancer patient her bone heeling was not proper and the OP refused to prepare the new denture at that moment keeping in view her condition.There is no negligence or deficiency in service on the part of the OP. Due care was taken at the time of treating the complainant. The OP is well qualified doctor and there is no medical negligence. Request has been made to dismiss the complaint.

8.                It is admitted fact that the complainant/deceased Surekha Malhotra approached the OP and got affixed removable partial denture from the OP. It is also admitted fact that the complainant was a cancer patient. As per Ex.C-8, she was diagnosed with carcinoma breast. On 28.08.2016 she was admitted for chemotherapy in DMC Ludhiana. Similarly, as per Ex.C-9 she was given chemotherapy in the year 2016. As per Ex.C-10 and Ex.C-11 the cancer was relapsed and she suffered metastatic breast cancer. It is also proved that she got treatment from Wahi Dental Clinic on 09.05.2018 i.e. during the period when she was getting chemotherapy from DMC Ludhiana. The contention of the Ld.Counsel for the complainant is that the OP has not explained about the treatment and the problem suffered by the complainant in the prescription Ex.C-1. As per Ex.C-1, the complainant has been visiting the OP on different dates, when the trial was done and the denture was fixed. He has relied upon the law laid down by the Hon’ble National Commission, in case titled as “Arvind Shah Vs. Kamlaben Ramsingh Kushwaha”, that it is incumbent on the doctor to record prescription mentioning patient’s history of complaints, current symptoms vital parameters and other clinical observations and provisional diagnosis. The Hon’ble National Commission in the above said case has laid down nine principles. Out of nine principles one of the principle is that the adequate information should be furnished by the doctor, who treats the patient, should enable the patient to make a balanced judgment as to whether he should submit himself to the particular treatment or not. This means that the doctor should disclose (a) nature and procedure of the treatment and its purpose, benefits and effect; (b) alternatives if any available; (c) an outline of the substantial risks: and (d) adverse consequences of refusing treatment. But there is no need to explain remote or theoretical risks involved, which may frighten or confuse a patient and result in refusal of consent for the necessary treatment. It has further been held that there is no need to explain the remote or theoretical risk of refusal to take treatment, which may persuade a patient to undergo a fanciful and unnecessary treatment. A balance should be achieved between the need for disclosing necessary and adequate information and at the same time avoid the possibility of the patient being deterred from agreeing to a necessary treatment or offering to undergo an unnecessary treatment.

9.                 In the present case, perusal of the prescription Ex.C-1 shows that the OP has mentioned the condition of the gums of the patient and the medicine prescribed by him, he has further mentioned about the trial given that means the denture were prepared and the trial was given as per written statement and even as per complaint. Thereafter, the denture was given to the patient on 03.04.2017 though as per this document the denture was received by the Doctor on 06.05.2017. This shows that denture was given to the patient and if the patient was not satisfied or was not ready for the installation of the denture she should not have gone for the installation. As per the article on the dental treatment considerations in the chemotherapy patient published in Journal Section: Oral Medicine and Pathology that during the chemotherapy dental treatment should be limited to emergency procedures while dental treatment can be prescribed after chemotherapy with special considerations in the case of patients who have received treatment with intravenous bisphosphonates. In this article, the detail has been mentioned that the patient on chemotherapy should avoid the general treatment of denture. In the present case, as per the submission of the Ld. Counsel for the OP, the patient was made aware about the consequences of the treatment, she, being a cancer patient. This is not the case of the complainant that she was not explained about the consequences of extraction. The complainant has not produced on record any document to show that she earlier got the treatment about extraction from PIMS Hospital, Jalandhar. She was further refused for installing complete denture after six months. This fact has not been denied by the complainant in replication. Similarly, this fact has not been denied by the complainant in the replication that she was not explained about the consequences she being compromised patient. This is also not the case of the complainant that the OP is not a qualified doctor. Ex.C-4 is the prescription by Dr. Wahi, but in this prescription it has nowhere been mentioned that the treatment given to the complainant was wrong or there is any negligence on the part of the doctor.

10.              It is the duty of the complainant to prove the medical negligence of the doctor. It has been held by the Hon’ble Supreme Court in a case titled as “Vinod Jain Vs. Santokba Durlabhji Memorial Hospital”, that in cases of medical negligence, the liability of the doctor will come only, if either the doctor did not possess requisite skills professes to have been possessed by him and he did not exercise with reasonable competence in given case, skill which he possesses. The medical negligence has been defined by the Hon’ble Supreme Court, in a case titled as “Jacob Mathew Vs. State of Punjab and Anr.” in 2005 (6) SCC 1, which is as under:-

                   “A case of occupational negligence is different from one of      professional negligence. A simple lack of care, an error of        judgment or an accident, is not proof of negligence on the part of          a medical professional. So long as a doctor follows a practice           acceptable to the medical profession of that day, he cannot be          held liable for negligence merely because a better alternative      course or method of treatment was also available or simply         because a more skilled doctor would not have chosen to follow or           resort to that practice or procedure which the accused   followed.”

                   It has been the Hon’ble Supreme Court in Consumer Protection Judgments-2022 (I), in a case titled as “Bombay Hospital & Medical Research Centre Vs. Usha Jaiswal & Ors”, which is as under:-

                   “In post-operative complications doctor cannot be held           liable for medical negligence by applying doctrine of res ipsa           loquitur for reason that patient has not favorably responded to   treatment given by doctor or surgery has failed. Simple lack of           care, error of judgment or accident, is not proof of negligence on     part of medical professional .The Commission ought not to          presume that allegations in Complaint are inviolable truth even       though they remained unsupported by any evidence. Sufficient           material or evidence should be available before adjudicating authority to arrive at conclusion that death is due to medical       negligence.”

11.              In the present case, there is no evidence on the record or the opinion of any expert on the record to prove that there was medical negligence of the doctor except the affidavit of the complainant. This is not the case of the complainant that proper and reasonable care was not taken by the doctor while treating the complainant. There is nothing on the record to come to the conclusion that there is any medical negligence on the part of the doctor while doing the extraction or treating the complainant, who was a cancer patient. It is proved that the removable denture was fixed seeing her condition and considering the fact that all the natural teeth were not fallen, as per submission of the Ld. Counsel for the OP and not denied by the complainant. Thus, in view of the above detailed discussion, the complaint of the complainant is dismissed with no order of costs. Parties will bear their own costs. This complaint could not be decided within stipulated time frame due to rush of work.

12.              Copies of the order be supplied to the parties free of cost, as per Rules. File be indexed and consigned to the record room.

Dated          Jaswant Singh Dhillon    Jyotsna                Dr.Harveen Bhardwaj    22.02.2022         Member                        Member           President