IN THE CONSUMER DISPUTES REDRESSAL FORUM, KOTTAYAM
Dated this the 28th day of February, 2023
Present: Sri.Manulal.V.S, President
Smt.Bindhu.R, Member
Sri.K.M.Anto, Member
CC No. 283/2014 (Filed on 18/08/2014)\
Complainant : Theresa Joseph, D/o Joseph
Madikkiyankal House
Koottickal P.O, Koottickal Village
Koottickal Kara, Kanjirappally Taluk
(By Adv.Sakeer Hussain)
Vs
Opposite parties : 1. Dr.Sherry M Joseph B.D.S
Dental Surgeon
Proprietor
C.V.M Dental Clinic Mundakkayam
Koottickal Road, Mundakkayam P.O
2. Dr.Jeev Thomas Cherian M.D.S
Consultant Endodontist
C.V.M Dental Clinic Mundakkayam
Koottickal Road, Mundakkayam
(By Adv.Shyam Padman)
O R D E R
Smt.Bindhu.R, Member
The Complaint is filed under section 12 of the Consumer Protection Act 1986.
The 1st opposite party is the proprietor and the dental surgeon of C.V.M Dental Clinic. Second opposite party is working as dental surgeon cum endodontist in the said clinic. The complainant, who was working abroad, visited the 1st opposite party on 01.08.2011 due to the pain in the 1st molar right of the lower jaw with registration number 20110801-013. The 1st opposite party after examining the painful tooth suggested for root canal treatment and after cleaning the teeth put gap on the front raw of teeth. The next appointment was given on 04.08.2011 for doing root canal. On 04.08.11 the complainant paid Rs.15,250/- for root canal. The 2nd opposite party had done the surgery on the said tooth and before noon the root canal procedure was finished. The 2nd opposite party asked the complainant to come after one week for bridging the teeth.
After one week when the complainant went for bridging, she informed the opposite parties that there existed pain in the tooth. But both the opposite parties did not attend to the pain but bridged the teeth. Again the complainant had to pay Rs.3,400/- for the same. Thereafter when the pain increased and spread to the whole mouth, ear and neck. The complainant approached the opposite parties again. But the 1st opposite party took the x -ray of the tooth and told the complainant that there was no problem and everything would be fine within one week.
The complainant had to return to London. Even after reaching there the pain did not subsided but increased. The complainant was not relieved from the pain even after having paracetamol and bruphen tablets and she sought treatment from Northwest London Hospital as inpatient. It was revealed in the X-Ray taken from there that there was a part of the needle in the tooth for which root canal was done. As the hospital authorities informed her that all her ailments were post root canal infection and as it was a case of medical negligence happened in India, they could not do the surgery to remove the needle. So the complainant had to return to India and she was got admitted in the Lakeshore hospital, Ernakulam. On 02-01-2012 she consulted with one Dr.Biju Thomas in Scientific Health Care, Valanjambalam, Ernakulam. There Dr.Biju confirmed the needle separation after taking the X-Ray and scan of the paining tooth. He did bone graft surgery and removed the needle, plucked the tooth on which root canal was done and the adjacent bridged tooth also was removed. He did metal implantation in the place of the removed tooth. The complainant was finally relieved from the pain she was suffering from 04-08-2011. She had to spend Rs.96,000/- in the said clinic.
The complainant is a consumer of the opposite parties who had performed the root canal surgery on the complainant in a careless manner causing instrument separation. The act of the opposite parties caused great mental agony and financial loss to the complainant which is to be compensated. Hence the complaint is filed.
Upon receipt of notice, opposite parties appeared before the Commission and filed version.
The opposite parties oppose the allegations in the complaint that the complainant has approached the Commission by suppressing material facts. The complainant has not produced the entire treatment record relating to the further treatment.
On examination the 2nd opposite party found that she had deep caries and slight pain right lower molar, patient was advised for root canal treatment (RCT). A brief description about the treatment plan was told to the patient, and she had agreed to undergo, the RCT. The tooth was vital and so the treatment was planned to do in a single visit. RCT was started by giving an Inferior Alveolar Nerve Block/ Mandibular Nerve Block for the tooth to get anesthetize. Local anesthetic solution used was Lignocaine. After the block given patient was asked to wait for 10 minutes to get anesthetise so as to do the procedure without any pain. Then RCT procedures were started. First the access opening was done using an Endo Access bur. Canals were located using K-files of 15 and 20 sizes. Then the working length was determined using K-files by both ways using an apex locator and an X-ray. Three canals wee identified in that tooth, a) Mesiobuccal-23mm, b) Mesiolingual 2-3 mm instrument separation, 20mm and c) Distal -23 mm. Then cleaning and shaping of the canals were done with ProTaper Rotary files using an Endomotor (X-mart). For this procedure five Rotary files were required, viz 1.SX- orifice sharpener, 2.S1 & S2 – shaping files and 3, F1 & F2- finishing files. During the insertion of S2 rotary files in Mesiolingual canal, the file got separated at the apical 1/3rd.
Instrument separation occurring at coronal or middle 1/3rd can be retrieved better than occurring at apical 1/3rd. Separation at apical 1/3rd the separated instrument itself can be considered as an obturating material within the canal and can be obturated fully. So obturation was done in all three canals. Separated instrument retrival was not done. Obturating material used was 6% Gutta percha. In Mesiobuccal and Mesiolingual canals 6% 20 size Gutta percha was used and in distal 6% 25 size Guttapercha was used. So in Mesiolingual with the separated instrument in apical 1/3rd the canal was obturated. Permanent filling was given with miracle mix. A post operative X-ray was also taken to confirm that the separated instrument was not beyond the apex. Patient was informed about the separation, and she was told that for 3 to 4 days sometimes pain would be there. She was advised to have analgesics/ anti inflammatory if pain is present. Then the patient was advised to have a crown on that root canal treated tooth after few days if no pain persists.
As indicated above on 04/08/2011 a single visit endodontic treatment (RCT) was done on lower right first molar teeth by consultant endodontist. After completing the treatment the 2nd opposite party had given the patient proper instruction and mentioned about the instrument separation. Fees of Rs.1300/- was collected after completing the treatment. On the same day, as requested by the patient, a cosmetic filling using light cure composite resin was done on upper right lateral incisor teeth by the 1st opposite party. Rs.600/- was collected for the above treatment. As decided in the treatment plan, patient reported to the clinic on 08.08.2011 (for days after RCT) for crown preparation of the root canal treated teeth and replacement of missing adjacent teeth. On examination the RC treated teeth was found to be slightly tender on percussion. So the 1st opposite party had advised the patient to postpone the next treatment (crown & bridge preparation) to a later date until the tenderness or pain completely subsides. The root canal treated tooth was kept under occlusion and the patient was asked to take the medicine tab SN-15 BD for 2 days. No fee was collected for the above visit.
On 12.08.2011 patient reported to the clinic stating that she was completely relived of pain, and wanted the further treatment procedures to be completed. After examination the 1st opposite party decided to start with crown and bridge preparation. Crown preparation on lower right first and third molar was done under local anesthesia. Impressions were made using rubber base impression material. Temporary crowns were also fixed on the above prepared tooth on the same day. The total treatment cost of above was Rs.12,000/-. The amount of Rs.7,000/- was paid by the patient as first installment. The amount of Rs.500/- was paid by the patient as the cost for the temporary crowns for three tooth. On the same day, as the patient complained of a fractured filling, a cosmetic filling using light cure composite resin was done on upper right lateral incisor teeth, for which Rs.500/- was paid. No medication was given on this visit.
On 17.08.2011 patient reported to the clinic for fixing the permanent crown and bridge. Temporary crown which was fixed earlier was removed and premium quality porcelain fused to metal full ceramic crown (PFM 3 unit) was cemented using premium quality cement (Fuji Cem). On completion of the treatment patient had paid the balance amount of Rs.5,000/-. No medication was given on this visit. Thereafter the patient is known to have gone abroad. Later during the end of November on one Thursday patient called over phone the 1st opposite party from London and complained about pain on root canal treated tooth. As the 2nd opposite party was also present that day, he also talked to the patient and advised to take the medicine which he prescribed over the phone. He also advised to consult a dentist/doctor, if the above medication is not working. He also explained about management of infection control in instrument separation. He also explained about other modalities of management like instrument retrieval, re-root canal treatment, hemisection etc. Thereafter the patient was lost for further follow up and treatment.
On 19/12/2011 one tube of tooth paste (Hiora-K) and a tooth brush (Colgate sensitive) was purchased from the counter by showing the above patients registration card for Rs.100/-, but the patient had not turned up for any consultation. On 22.12.2011 patient’s brother came to the clinic of opposite party and asked the 1st opposite party to furnish a medical certificate for her sister claiming it to be necessary for getting re-imbursement. On 28.12.2011 the report was prepared and duly signed by the endodontist on 29.12.2011 and handed over to her brother on 29.12.2011. Thereafter till notice in the above compliant was served on the opposite parties on 17th September 2014, no further letters or phone calls or any other communications were received from the side of the patient. There was absolutely no negligence, deficiency in service or carelessness and seen alleged or otherwise on the part of the opposite parties.
No gap filling as alleged in the complaint was done at that visit and the fees collected was only Rs.500/- and not Rs.3,000/-. The opposite parties had never collected Rs.15,250/- on 04.09.2011 for root canal treatment as seen falsely alleged. They had charged Rs.1300/- only for RCT and that was collected only after completing the treatment. On examination the tooth was found to be vital and decided to do RCT in a single visit under local anesthesia. There were no surgical procedures involved in the entire treatment. After the treatment patient was given instructions and suggested to do crown and not bridge. She never came to the clinic on 11.08.2011 as seen alleged, but she came to the clinic complaining of pain on biting on 08/08/2011 (four days after the procedure). RC treated teeth was relived from occlusion and tab SN-15 BD x 2 days was prescribed. No bridge was given on that day, nor any cash collected, and not brufen or paracetamol tables prescribed. Even though the patient insisted on starting with the bridge preparation, the opposite parties had asked her to wait until the tooth becomes completely normal.
Complainant mentioned in paragraph no.6 of the complaint is totally fabricated. She never came to the clinic after fixing the crown and bridge on 17.08.2011. No radiographs/ X-ray taken and no medicines given as seen alleged. The allegation that the complainant came to know about instrument separation from UK hospital on 08.11.2011 is false and purposely stated for the purpose of the above compliant. The same was informed to her after the treatment on 04/08/2011 itself. Even though the patient was in Kerala from 30.12.2011 to 14.01.2012 she did not contact or communicate with the clinic or the opposite parties. The allegation in paragraph no.8 that the root canal treatment was done carelessly is baseless, false and unsustainable. It was done with utmost care and using the latest diagnostic and endodontic operating instruments. (IOPA radiograph, apex locator, X-smart endo motor etc). Instrument separation which can happen while doing multi rooted teeth is a medically accepted and expected complication. It was informed to the patient too. Post treatment pain which occurs in most of the cases is also addressed in this case. Only after the post endodontic pain got subsided and after getting the consent from the patient, the crown and bridge preparation was started. This was done on 12.08.2011 and completed on 17.08.2011 unevenfully. Patient was in India till 28/08/2011 and she had never raised any complaints.
It is submitted that the complainant was well informed about the instrument separation after the treatment. She did not consult the Endodontist after the treatment. The amount paid for RCT is only Rs.1300/-. The opposite parties had waited for the post endodontic pain to subside and then only they did crown and bridge treatment. The patient had never complained of any discomfort until she left India. Patient is purposefully and falsely trying to establish that she had pain from date of treatment and continued until she undergone bone graft surgery. Patient is purposefully trying to establish that the opposite parties tried to cover up the instrument separation episode. The post endo pain was dealt properly. Even though the complainant had many options like instrument retrieval/ Re-RCT/ hemisection/ extraction followed by FPD etc, she went for a very expensive treatment which was not necessary or warranted in the given circumstances, that too without any reference or consultation with the opposite parties, inspite of the fact that the above options were explained to the patient by the endodontist over the phone. It appears that before coming back to India itself she was planning to precipitate the matter in the form of the litigation, and thus is attempting to make unjust enrichment at the expense of the opposite parties.
As a part of evidence, complainant sworn her own affidavit and has filed 10 documents which were marked as Exhibit A1 to A10 and PW1 to PW3 were examined. The opposite parties produced Exhibit B1 and DW1 to DW3 were examined.
On the basis of the above facts and evidence we see that the issues to be resolved are whether there is any deficiency of service established against the opposite parties and if so what are the allowable reliefs.
The case of the complainant is that she had to undergo root canal treatment conducted by the opposite parties which caused several complications causing much mental agony and monetary expenses to her only as a result of the instrument separation due to negligence of the opposite parties. The opposite parties contested the matter by raising contentions that there was no negligence on the part of the opposite parties as the instrument separation is only the usual complication in the root canal process and it cannot be attributed to as negligence.
On evaluation of the pleadings and evidence, we see that the complainant has admittedly consulted with the opposite parties and the date of the root canal treatment was fixed. As per the version of the opposite parties, on 04.08.2011 root canal treatment was done. On 08.08.2011, after four days of the RCT, on examination the RC treated tooth was found to be slightly tender on percussion. So the 1st opposite party had advised the patient to postpone the next treatment to a later date until the tenderness or pain completely subsides. DW2 has deposed that in Exhibit B1, in the patient case record on 04.08.2011 it is recorded as “INST SEPTN 2mm”. He further deposed that he knew about the instrument separation only in the evening through the records. DW1, who is the treating doctor, has deposed that he has recorded the instrument separation in B1. But he has not answered that he had informed the patient about the instrument separation as and when it happened. Even at any point of time during the entire treatment period, the opposite parties had not informed the complainant about the happening of instrument separation.
Thereafter, the complainant bonafidely believing her doctors followed the procedures as advised. Later she had to suffer from severe pain in the mouth, ear and neck. The complainant who was totally unaware of the instrument separation sought treatment for the pain in the hospital in England where she was working. Exhibit A3, which is the discharge summary issued by the North West London Hospitals though reveals that the treatment sought for there was for asthma, the complainant who being unaware of the condition of her tooth could not seek proper treatment there. Though the said treatment was for asthma, the complainant had later sought treatment for the teeth from PW2, Dr.Biju. This Dr. Biju was examined as PW2 and he deposed that he got the impression from the X ray taken by him that in the masio lingual canal there was overextended filling presumed to be subsequent to instrument separation. He deposed that he had seen the certificate from the doctor who conducted RCT. So though the treatment taken in London did not show any connection with the tooth problem, it is evident that the complainant had developed several problems consequent to the dental treatment and she had sought treatment for the teeth subsequently from Dr.Biju when all the problems came to an end.
The complainant being a consumer/patient has the right to accept or refuse the advised treatment and make decisions about end of life care. The opposite party should obtain the consent of the patient before starting the treatment. Exhibit B1 is the treatment history in which the patient has signed her consent but on 01.08.11 whereas the RCT was conducted only on 04.08.11. The opposite party has at the time of argument produced a judgment of Hon’ble Supreme Court Samira Kohli vs. Prabha manchanda & others in which the Hon’ble Apex Court have pointed out that when a patient enters a Dentist’s clinic and sits in the dental chair, his consent is implied for examination, diagnosis and consultation.” It is to be noted that by sitting on the chair of the patient, it cannot be inferred that the patient has given consent to whatever treatment the doctor wants, can be given to him. The implied consent is only for examination, diagnosis and consultation. After proper consultation with the patient only the doctor can proceed with the treatment. So here in the case on hand, the opposite parties have no documentary proof that they had obtained the consent of the complainant for conducting RCT, bridging etc.
Moreover, the opposite party has not informed the complainant about the procedural error of instrument separation on time. The 2nd opposite party while cross examined as DW2, admitted that no documents have been produced by the defense side to prove that there was proper communication between the doctor and the patient regarding the instrument separation. Only intimated the patient orally.
So as a whole, when Exhibit B1, the treatment record is considered, it is seen that the opposite parties were not keen in keeping proper documentation of their treatment which itself constitutes negligence. DW1 who is the 1st opposite party also has deposed about the treatment history, Exhibit B1 in a vague manner. There is no clarity regarding Exbt B1. For constructing a good defence against alleged medical negligence, a well prepared treatment history is very much necessary. In the case on hand the opposite parties have failed to keep one of the prescribed standard. In B1 document there is no mention anywhere about such procedures. So there is no evidence before us to prove that the opposite parties have done all procedures needed if an incident of instrument separation occurs.
In Dr. Naresh Gupta, Gupta Dental Clinic, Appellant/Op Versus Abhishek Dennis State Consumer Disputes Redressal Commission, Punjab. “It was further observed that every tooth containing a fractured instrument should be considered a failure. On the basis of this medical literature, no doubt instrument may break during the root canal but the file segment may be left behind, if an acceptable level of cleaning and shaping has already been completed and admitted to remove the segment would risk damage to the tooth, therefore, every effort should be made to remove the instrument brakes without damage to the tooth. It was not possible, therefore, it was not done, therefore, it is not a case of medical negligence. However, counsel for the complainant stated that in case any file/needle had broken while conducting the RCT then no intimation was given to the complainant or his parents that it has happened or not. Effort was made by the Doctor to remove it and that there are no findings that broken file cannot be removed without any damage to the tooth. Ex. C-1 is the prescription slip, which does not refer the breaking of the file while undertaking RCT or that any effort was made by the Doctor or that it could not be removed without damage to the tooth. Ops in their evidence has filed the affidavit of Dr. Rajnish Kansal, MDS, Dr. Munish Singla, MDS and Dr. Puneet Gopal apart from his own affidavit in which they have referred to the medical literature that it is common complication of the procedure. They have not placed on record any document internally prepared by the opposite party at the time of giving treatment to the complainant that the file had broken and that its intimation was given to the complainant or his attendants. There is no case on behalf of the opposite party that they had made effort to remove it without any damage to the tooth but it was not possible.
No doubt that breaking of the file while undertaking the RCT may be complication of the procedure but relationship of patient and Doctor is of utmost good faith. It was the duty of the Doctor to tell the patient that file had broken. Even the medical literature referred by the counsel for the party also speaks that effort should be made to retrieve the file, if it is possible without any damage to the tooth but opposite party did not make any effort to do that. In case the file had broken while undertaking the RCT, opposite party was very well in the knowledge because once you are undertaking RCT and file had broken, immediately Doctor will come to know that it had broken. In this way, not informing the patient with regard to breaking the file while undertaking the RCT is breach of utmost good faith, which the patient repossess in the Doctor. Secondly, his duty should have been made effort to remove it if it was possible without any damage to the teeth or if it was possible with some damage to the tooth then consent of the patient/guardian could be taken. In case it was constantly giving problem to the child then it was to be removed even at the cost of the tooth but no effort was made by opposite party for the removal of the file broken in the process of RCT for which the patient had approached other Doctor Dr. Rajneesh Bansal, Tooth Solutions Dental Care Centre, Bathinda and then to Maulana Azad Institute of Dental Sciences, New Delhi, it did the needful, therefore, case of medical negligence and deficiency in service is clearly made out and qua that the findings recorded by the Forum, we affirm those findings.”
So in the case on hand also, we find that the opposite parties have failed to keep the utmost faith the complainant had in them and omitted to try for the recovery of the broken file. The omission from the part of the opposite parties to intimate the occurrence of instrument separation to the complainant and to conduct further recovery procedure is considered as a deficiency in service.
S.2(1)(g) of the Consumer Protection Act, 1986 says “Deficiency: means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service. The opposite party has committed shortcoming in the nature and manner of their performance and hence this is found to be deficiency on the part of the opposite parties.
The complainant though alleged about her treatment in the North-western Hospital, London, and produced Exhibit A3 the discharge summary, it shows that the complainant was treated there for asthma and LRTI. As the complainant has averred that she had to return to India after the treatment in the said hospital in London, it cannot be presumed that she had returned by paying the flight tickets for the dental treatment. Pw2 has deposed that the Exhibit A3 does not reveal any dental treatment taken by the complainant from the London Hospital. But she had later taken the proper treatment.
Hence the complaint is allowed and the opposite parties are directed to pay Rs.1,00,000/- each to the complainant as compensation for the mental agony and sufferings she had to undergo.
Order shall be complied within 30 days from the date of receipt of the copy of this order, failing which the compensation amount will carry 9% interest till the date of realization.
Pronounced in the Open Commission on this the 28th day of February, 2023.
Smt.Bindhu.R, Member sd/-
Sri. Manulal.V.S, President sd/-
Sri. K.M. Anto, Member sd/-
Appendix
Exhibits marked from the side of complainant.
A1- Original of special power of attorney dated 20.08.2014.
A2- Hospital ID card
A3- Discharge summary dated 10.12.2011
A4- Medical certificate signed by Dr.Biju Thomas, Scientific Healthcare Pvt Ltd.
A5- Cash Bill dated 02.01.2012 issued by Scientific Healthcare Pvt Ltd.
A6- Cash Bill dated 07.01.2012 issued by Scientific Healthcare Pvt Ltd.
A7- Web e-ticket dated 28.12.2011 issued by Jet Airways.
A8- Certificate of R.M.D Enterprises Limited, dated 01.08.2014.
A9- Copy of the passport
A10- Certificate signed by Dr.Jeev Thomas Cherian , dated 28.12.2011
A11- Dental x-ray
Sworn statement from the side of complainant
PW1- Mercy Thomas, Madickankal , Koottickal P.O
PW3- Theresa Joseph, Madikkiyankal House, Koottickal P.O
Exhibit marked from the side of opposite party.
B1- Certificate signed by Dr.Sherry M Joseph dated 05.09.2019
Sworn statement from the side of opposite parties
DW1- Dr.Jeev Thomas Cherian, Kallupalam Hill Residency, Chalukkunnu, Kottayam
DW2- Sherry M Joseph, CVM Dental clinic, Mundakkayam
DW3- Dr.Robin Theruvil, Professor, Dept of conservative, St.Gregorios Dental College Kothamangalam.
By order
sd/-
Assistant Registrar
