By Smt. C.S. Sulekha Beevi, President,<br /> <br /> 1. The case of complainant is that he approached opposite party on 02-02-05 with complaint of tooth ache. Opposite party instructed him to take an X-ray and after examination advised to undergo Root Canal Treatment (hereafter mentioned as RCT). He consented for the treatment and opposite party started the treatment. On 04-3-2005 opposite party told him that the treatment was over. By this time opposite party had collected Rs.1,000/- as fees for RCT from him. Opposite party demanded further amount. Since there was no relief for his pain he did not pay any more. Complainant then consulted another doctor of government hospital who referred him to the Professor of Medical college, Kozhikode. An X-ray was taken again. Comparing this X-ray with the previous one he was told that it does not appear that RCT is done. He was advised to undergo further RCT. He recovered fully after this treatment. Complainant alleges that opposite party cheated him by collecting fees for doing RCT and not performing the treatment. He had to undergo thereby physical and mental hardships and financial loss. Hence this complaint alleging deficiency in service and claiming for compensation of Rs.50,000/- together with costs.<br /> 2. Opposite party filed version admitting that complainant consulted her with complaint of tooth ache. It is also admitted that opposite party advised RCT for the 7, 8 teeth of upper jaw. It is averred that opposite party started treatment and had collected Rs.1,000/- as fees for treatment. It is vehemently denied that opposite party told the complainant on 04-3-2005 that treatment was over. Opposite party submits that complainant did not act according to the advice of opposite party. He did not turn up for timely check-up, did not take the medicines properly and had slipshod approach towards the treatment undertaken. That opposite party had advised the complainant that such careless attitude towards treatment would create difficulty in treatment. While so, on 28-02-05 complainant abused the assistant working in Clinic of opposite party for making him wait for long time and for not giving the complainant the first appointment. Complainant then told opposite party to dismiss the assistant from work or else she would have to face dire consequences. Again on 04-3-2005 complainant came for treatment. After consultation opposite party advised to come after 10 days. Complainant failed to turn up and therefore the treatment could not be completed. On 01-8-2005 complainant issued a notice through lawyer stating false contentions. Opposite party replied for the same but the reply was returned as unclaimed. The complaint is vexatious, frivolous and filed on an experimental basis to exhort money. Complainant is not entitled to get any reliefs.<br /> 3. Evidence on the side of complainant consists of the oral evidence of PW1 and PW2. Exts.A1 to A4 marked. Opposite party was examined as DW1 and Ext.B1 and B2 marked for opposite party.<br /> 4. Points for consideration:-<br /> (i) Whether opposite party is deficient in service.<br /> (ii) If so, reliefs and costs.<br /> 5. Point (i):-<br /> The main grievances of the complainant alleging medical negligence on the part of opposite party are (i) opposite party made the complainant believe that she has done RCT and collected Rs.1,000/- as fees for the treatment, when actually she had not done RCT. (ii) Even after treatment under opposite party, his complaint of pain persisted and complainant had to undertake further treatment under another doctor to recover fully and thereby suffered hardships and incurred further expenses.<br /> 6. Negligence in short is the breach of a duty caused by omission to do something which a reasonable man would do, or doing something which a prudent and reasonable man would not do. The definition involves the following constituents:-<br /> (i) a legal duty to exercise due care.<br /> (ii) breach of the duty; and <br /> (iii) consequential damages.<br /> In a catena of cases it has been held that a medical practitioner can only be liable if his act is so palpably wrong as to prove negligence, that is to say, if his mistake is of such nature as to imply absence of reasonable skill and care on his part, regard being to the ordinary level of skill in the practitioner. We proceed to examine the present case basing upon these principles.<br /> 7. The case of the complainant as averred in the complaint is simple and straight forward. According to him he consulted Dr.Fareeda Razack, Opposite party with complaint of tooth ache. On her instructions an X-ray was taken and after examination he was advised for RCT. He states that on 04-3-2005 the doctor, told him that treatment was over and by this time opposite party collected Rs.1,000/- as fees for RCT. Though opposite party demanded more money he did not pay further since his pain aggravated day by day. He consulted another doctor of government hospital who referred him to Professor of Medical College. A fresh X-ray was taken. It is his case that on comparing this X-ray with the previous one he was informed that it does not appear that RCT was done. It is also his case that he recovered fully only after undertaking RCT again under another doctor.<br /> 8. On the side of opposite party it was admitted that complainant had consulted her with tooth ache and she advised RCT for 7, 8 teeth of upper jaw. It is also admitted that she collected Rs.1,000/- as fees towards RCT. While abjuring herself from the allegation of deficiency in service opposite party has come out with the specific defence that complainant did not turn up for timely check-up, did not adhere to her advices did not take medicines properly and was not vigilant in pursuing the instructions of treatment. It is stated by opposite party that she never told the complainant that treatment was over. In fact she states that she could not complete the treatment because complainant did not turn up after 04-3-2005.<br /> 9. Therefore, the first issue that comes up for consideration before us in analyzing medical deficiency in service in the instant case, is whether there was non diligance on the part of complainant to adhere to the instructions of the treating doctor, ie; opposite party.<br /> 10. Complainant places reliance on Ext.A1, A3 and the testimony of PW1 and contends that opposite party failed to apply gutta pursche as the completion of Root Canal Treatment and thereby has not completed the treatment. Due to this incomplete treatment complainant suffered severe pain. It is evident from Ext.A1 and Ext.A3 that 7, 8 teeth of upper jaw ie; 2nd and 3rd molar of upper left line was subject to RCT. Dr,.Rameshkumar, a Professor of Dental College, Kozhikode is the doctor who treated the complainant subsequently. This doctor was examined as PW1. Ext.A1 is the prescription dated, 11-4-05 issued by PW1. In Ext.A1 it is noted as under:<br /> “C/O -- H/O RCT and root filling else where.<br /> Pain |7, 8 <br /> O/E -- X-ray shows no gutta pursche applied in root canal X-ray was taken on <br /> 21-3-2005 elsewhere. Pain on |7, 8 “<br /> PW1 has testified that the failure of earlier RCT was due to in completion of Root Canal Treatment. Usually after opening and cleaning the root canal a permanent filling by applying gutta pursche is done. PW1 has stated that this treatment can be done in one sitting or several sittings. That sometimes the doctor applies a temporary filling in order to watch whether the patient is having any pain. After treatment the teeth is capped by applying the filling. PW1 has also deposed that this cap can be applied even after one month of RCT. Thus from the evidence of PW1 it is seen that application of gutta pursche is an essential procedure of RCT.<br /> 11. Ext.A3 is the prescription issued by opposite party. It is evident that opposite party had started the treatment of RCT. It is noted in Ext.A3 that on 08-02-2005 opposite party had opened the root canals and temporary filling was done. On the same day Bio Medical Preparation (BMP) was done. Though the patient was advised to review after 3 days it is seen that the patient has come only on 28-02-2005. On this day, the patient complained of pain and opposite party advised to come after 3 days. The next consultation is on 04-3-2005. On this day cleaning was done and the patient was advised to come for review after 10 days for permanent filling or crown. According to opposite party patient did not turn up after 04-3-2005 and therefore permanent filling or gutta pursche was not applied and treatment could not be completed.<br /> 12. In the complaint the averment is that after 04-3-2005 complainant consulted another government doctor since he had no relief for his pain. But the evidence of complainant tendered by affidavit shows a lot of deviations and improvements. It is his case in the affidavit, that 10 days after 04-3-2005 he consulted opposite party with complaint of tooth ache. That opposite party advised him, to come after taking an X-ray if the pain continued even after a week. That as per instructions of opposite party complainant took an X-ray again and approached opposite party on 21-3-2005. That opposite party then asked him to come after another week. Since there was no relief for the pain he again consulted opposite party, who advised him that RCT has to repeated and that he will have to pay Rs.1,000/- more. These statements in the affidavit are totally unsupported by pleadings or documents. In Ext.A3 the last date of treatment noted by opposite party is 04-3-2005. It is the definite case of opposite party that complainant failed to turn up after 04-3-2005. Further complainant himself has stated that opposite party used to note the dates for each consultation and review in the prescription. So the contention of complainant that he continued treatment under opposite party even after 04-3-2005 is totally unsupported by pleadings and documents and therefore is not reliable or acceptable. It is crystal clear that complainant has abandoned the treatment of opposite party after 04-3-2005.<br /> 13. We have to say that the testimony of complainant who was examined as PW2 did not inspire any confidence in us. Apart from the fact that the complainant did not have any consistent case as to the dates of treatment undertaken with opposite party he has made upteen number of contradictory statements regarding the number of X-rays taken as part of his treatment. In the complaint his case is that a total number of two X-rays were taken; the first one on the advise of opposite party and the second one on the instruction of Dr.Rameshkumar. In the affidavit his case is that a total of three X-rays on different dates were taken on the instruction of opposite party. Dr.Rameshkumar has deposed that he did not advise to take any X-ray and treated the patient referring to the X-rays the patient had brought with him. Complainant contradicts this statement of PW1 and contends that an X-ray was taken on advise of Dr.Rameshkumar. But evidence of PW1 and Ext.A1 prescription proves him wrong. Further complainant states that the prescription issued by Dr.Lisha Sanal, the government doctor whom complainant consulted immediately after treatment of opposite party is with him. Complainant has neither produced this prescription nor has he examined Dr.Lisha Sanal. Moreover complainant has deposed that opposite party told him that treatment is completed on two or three occassions. This is emphatically contradictory to the pleadings and his affidavit. All these together impells us to conclude that the evidence tendered by complainant is not at all reliable or trustworthy. It is candid that he does not even have a consistent case against opposite party.<br /> 14. From the foregoing discussions we are able to reach the inescapable conclusion that complainant has voluntarily abandoned the treatment of opposite party after 04-3-2005. Needless to say that, complainant therefore cannot turn around and blame the doctor for non-completion of treatment or failure in treatment. It is held in 2007 CTJ 23 (CP) (NCDRC) Munna Devi Vs. Dr. R.P. Tandon decided on 06-9-2006 that “if a patient does not adhere to the advice of the doctor, does not appear for timely check up and voluntarily abandons his services, he cannot turn around and say that the doctor was deficient.” The principle laid in the above decision is squarely applicable to this case. We therefore hold that complainant has miserably failed to establish any deficiency in service on the part of opposite party. We find opposite party not deficient in service.<br /> 15. In the result we dismiss this complaint. However we do not make any order as to costs.<br /> <br /> Dated this 3rd day of November, 2008.<br /> <br /> <br /> Sd/-<br /> C.S. SULEKHA BEEVI, PRESIDENT<br /> <br /> <br /> Sd/-<br /> MOHAMMED MUSTAFA KOOTHRADAN, <br /> MEMBER Sd/-<br /> E. AYISHAKUTTY, MEMBER<br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> APPENDIX<br /> <br /> <br /> Witness examined on the side of the complainant : PW1 and PW2<br /> PW1 : Dr. M. Rameshkumar, Endodontist, Medical College, Kozhikkode.<br /> PW2 : K. Sivadasan, Complainant.<br /> Documents marked on the side of the complainant : Ext.A1 to A4<br /> Ext.A1 : Ext.A1 is the prescription dated, 11-4-05 issued by PW1<br /> Ext.A2 : X-ray (2 Nos.)<br /> Ext.A3 : Prescription issued by opposite party <br /> Ext.A4(series) : Cash Bills <br /> Witness examined on the side of the opposite parties : DW1<br /> DW1 : Dr. Fareeda Razack, Opposite party.<br /> Documents marked on the side of the opposite parties : Ext.B1 and B2<br /> Ext.B1 : Photo copy of lawyer notice dated, 01-8-2005 sent by complainant's<br /> counsel to opposite party.<br /> Ext.B2 : Reply notice dated, 19-8-2005 sent by opposite party's counsel to<br /> complainant's counsel.<br /> <br /> <br /> Sd/-<br /> C.S. SULEKHA BEEVI, PRESIDENT<br /> <br /> <br /> Sd/-<br /> MOHAMMED MUSTAFA KOOTHRADAN, <br /> MEMBER Sd/-<br /> E. AYISHAKUTTY, MEMBER<br />