Delhi

East Delhi

CC/438/2015

KIRESH WATI - Complainant(s)

Versus

KUMAR DENTAL CLINIC - Opp.Party(s)

10 Feb 2023

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION (EAST)

GOVT. OF NCT OF DELHI

CONVENIENT SHOPPING CENTRE, FIRST FLOOR,

SAINI ENCLAVE, DELHI – 110 092

 

C.C. NO. 438/2015

 

	Smt. Kireshwati R/o: 9/5180, Gandhi Nagar, Old Seelampur, D.P.H. Delhi	….Complainant
Versus
1	Dr. Kunwar Kunal Uppal 652, Jheel Kuranja Main Road, Opposite Gurdwara, Near Krishna Nagar, Delhi – 110051	……OP1
2	Dr. Y.K. Uppal 652, Jheel Kuranja Main Road, Opposite Gurdwara, Near Krishna Nagar, Delhi – 110051	……OP2
3	Kumar Dental Clinic 652, Jheel Kuranja Main Road, Opposite Gurdwara, Near Krishna Nagar, Delhi – 110051	……OP3

 

                                                         

Date of Institution: 18.06.2015

Judgement Reserved on: 06.01.2023

Judgement Passed on: 10.02.2023

                  

QUORUM:

Sh. S.S. Malhotra (President)

Sh. Ravi Kumar (Member)

Ms. Rashmi Bansal (Member)

 

Order By: Sh. Ravi Kumar (Member)

 

JUDGEMENT

1. The Complainant has filed complaint against the OPs wherein she has alleged deficiency in service in treating her tooth problem by leaving some broken instrument inside while doing the Root Canal Treatment (RTC) and in Fixing Partial Denture (FBD) which resulted in continuous severe and unbearable pain to her and finally she had to go to AIIMS for removal of those broken instruments.  OP1 & OP2 are running the dental Clinic in the name of OP3 i.e. Kumar Dental Clinic and as such all the OPs have been collectively given the nomenclature as OPs.
2. The Complainant has contended that in September, 2013 she was feeling some hot and cold sensation between her upper jaw tooth No. 5 and 7.  She visited the Clinic of the OPs i.e. Kumar Dental Clinic and after checking the OPs told her that she was not having Tooth No. 6 which resulted in the said problem and that they will fix the problem by bridging tooth No. 7 and 5 and fix tooth at No. 6 through RCT and that there is no other option.  OP1 called her for treatment on 18.09.2013 in their Clinic and after doing X-rays RCT process was started on 18.09.2013 which continued on various follow-up sittings i.e. on 18.09.2013, 21.09.2013, 24.09.2013, 01.10.2013, 07.10.2013, 08.10.2013, 10.10.2013, 12.10.2013, 15.10.2013, 19.10.2013, 09.11.2013, 12.11.2013, 19.11.2013, 26.11.2013, 28.11.2013, 05.12.2013  and lastly was done on 07.12.2013 and the OP1 charged Rs.24,800/-.  However, the Complainant did not get any relief and the pain sustained and when she told OP1 about it then he said that the treatment given is new and it takes time to adjust.  Due to pain, the Complainant was not able to sleep or eat and was under mental stress.  When there was no relief from the OPs side then she visited another clinic i.e. Dental World Clinic where she met Dr. Saurabh Malik and who after doing X-rays told her that there was some instrument left between tooth No. 5 and 7 due to which she had infection and she was advised to get the further treatment done at AIIMS. 
3. On 03.04.2014 she visited AIIMS and there X-ray was done and she was told that there was some broken instrument left in the RCT done to her which was operated by one Dr.Rahul of AIIMS and said instrument was removed, however, she is still suffering pain and she has filed present complaint making the following prayers:

• To give direction to OP to pay Rs.2,00,000/- to the Complainant.
• To give direction to OP to pay Rs. 1,70,000/- to the Complainant for mental harassment.
• To pay litigation charges of Rs. 3000/- to the Complainant. 

4.           OPs have filed joint reply wherein they have denied the contents of the complaint and stated that the same is motivated and is beyond limitation as the Complainant last visited them on 07.12.2013.  The Complainant was given complete treatment and she paid Rs.12100/- for herself and Rs.2500/- for the treatment of her son Yogesh and in order to avoid remaining payment she has filed the present complaint against them. OPs have also stated that  Complainant has not filed report of Dr. Saurabh Malik where it is mentioned that RCT is faulty and it cannot be believed that without seeing the X-rays how Dr. Suarabh Malik came to the conclusion that RCT 7 is faulty.  If there is any fault then the same is due to retreatment done by Dr. Malik and OPs are not responsible for the same.  OPs have also stated that even the report of AIIMS clearly states about the re-treatment at private clinic and not about the treatment and if there is any fault, the same is due to the treatment of Dr. Saurabh Malik.  They have also stated that for a period of 2 months i.e. from 07.12.2013 to 27.01.2014 she did not come back to them to report about the difficulties and she could have visited them if she was having problem and therefore the complaint has been filed to harass the OPs.   
5. The Complainant has filed Rejoinder denying the stand of the OPs and has stated that the complaint is filed within limitation and she has reiterated contents of her complaint. 
6. The Complainant has filed Evidence by way of Affidavit and she has filed copy of Treatment Card/Prescription of the medical treatment given to her by OPs, Copy of Prescription dated 27.01.2014 of Dr. Saurabh Malik, copy of OPD treatment given to her at AIIMS alongwith her complaint.
7. OPs have filed their Evidence by way of Affidavit of Dr. Kunwar Uppal wherein he has marked the Treatment Card in three pages as exhibit Ex.RW-1/1.    
8. Before admitting the case, this Commission in 2015 had referred the matter to the Maulana Azad Institute of Dental Sciences , New Delhi (MAIDS) for giving Expert’s Opinion on the question whether there was any negligence in the treatment given to the Complainant.  The MAIDS submitted their report dated 16.03.2016 which reads as follows:

‘As per the request received from District consumer redressal forum regarding expert medical opinion in the case no 438/15, a committee of three specialists viz. Dr. Rekha Gupta, Dr. Amit Malhotra, Dr. Ranjit Bodh was constituted. The report from the committee is as follows: 

Patient reported before the Committee on 19/02/2016 with the treatment records. On clinical examination, tooth no. 16 and 17 were missing 15 was restored with a crown which was not found to be tender on palpation or percussion.

According to the history and records submitted by the patient, the patient reported in Kumar Dental Clinic on 14/09/2013 with the chief complaint of pain in right upper back region. According to the prescription submitted, the doctor has taken IOPA radiograph but the same is missing from the records. During the next visit on 16/09/2013, Patient was advised full mouth radiograph (OPG). The OPG does not show any pathology with respect to this region however final conclusion cannot be drawn. The patient was advised for root canal treatment (RCT) in the tooth no. 17 and replacement of 16 with a three unit fixed partial denture (FPD) Treatment was initiated on 18/09/2013 and root canal treatment was performed in 7-8 appointments over 3 weeks subsequently three unit FPD was cemented with no treatment details mentioned.

As per patient, she reported to the doctor again after cementation of FPD because of pain, another RCT was advised w.r.t tooth no. 15. On clinical examination access cavity is present on 15 which has been restored with composite thus verifying the fact that RCT of 15 was done through FPD after its cementation.

According to the patient, pain continued despite this intervention for which she visited another clinic ‘Dental World’. The doctor carried out IOPA radiograph which the patient presented before the committee on 19/02/2016. The radiograph showed breakage of instrument beyond the canal in both the teeth treated for root canal treatment. The abovementioned clinic did not intervene. Subsequently patient visited Centre for Dental Education & Research, AIIMS. The investigation carried out by this Centre reported underfilled root canal and instrument separation w.r.t. tooth no. 17 The centre initiated retreatment for this tooth and was able to retrieve the instrument however the pain persisted and the patient was advised for extraction of this tooth.

After going through the patient examination, history and investigation reports presented, it can be determined that there was faulty RCT done and instrument separation w.r.t. 15:17 and the patient was not informed about it by the operating doctor’.

 

9. This Expert’s Opinion of MAIDS was provided to the OPs and they  filed objections to the same wherein it has been submitted that ‘in Para 4 of the report in question it was mentioned ‘on clinical examination access cavity is present on 15 which has been restored with composite thus verifying the fact that RCT of 15 was done through FPD after its cementation’.  The OP has submitted that he never did composite filling and that the composite filling was done by some other Doctor who treated the Complainant subsequently to the treatment taken from OPs as she did not visit their Clinic  on 07.12.2013.
10. However, strangely though there was strong objection to the above said Expert Opinion of MAIDS yet there is no whisper of the same in the Written Statement dated 18.11.2016 of the OPs filed before this Commission nor did they rely upon their said objection in their Evidence by way of Affidavit and they had filed only the treatment papers as Exhibit RW1/1.
11. OPs have also taken objection about the limitation and have stated that Complainant made last visit in their Clinic on 07.12.2013 and thereafter she did not come to their Clinic for further treatment and filed complaint after two years which is beyond limitation.  However, the facts are different and complaint was filed by the Complainant in the Forum on 18.06.2015 and therefore the complaint is within limitation and contention of the OPs is untenable.
12. The whole case revolves around the controversy as to whether OPs gave proper medical treatment to the Complainant that was expected and was there any negligence on their part which resulted in further complication in the treatment and finally the problem was treated by Doctors in AIIMS where the Complainant went for treatment.
13. The Complainant had initially approached OPs for her tooth problem and due to which she was not able to eat and sleep properly.  The OP advised her RCT of tooth number 5 & 7 and also making bridge between tooth number 5 and 7 (the position of the tooth has been reported as tooth number 15, 16 and 17 in the MAIDS report).  The treatment was done by OPs on various dates starting on 18.09.2013 by calling the Complainant to their Clinic – Kumar Dental Clinic (last visit to OPs Clinic was on 05.12.2013 - exhibit RW1/1) and she informed that she was still having problem of pain and she was told by the OPs that the same will be resolved with passage of time and medicines were prescribed to her.  However, there was no relief and she went to another Clinic i.e. Dental World Clinic on 27.01.2014 where she met Dr. Saurabh Malik who got the X-rays done and after examining it on his laptop he informed the Complainant that there was ‘faulty RCT at tooth 7’ as per his prescription dated 27.01.2014 due to which she has infection and he told her orally to visit AIIMS for further treatment.  Thereafter, Complainant visited AIIMS on 03.04.2014 where her X-ray was done and broken instruments were removed from her tooth located at number 7 and she was told that she will have to continue treatment for pain and it will take long time. 
14. The OPs have neither objected to the findings of the MAIDS expert body in their Written Statement nor they filed their reply objection to the said Report in their Affidavit by way of Evidence which are part of pleadings. Hence this Commission is not able to give credence to the stand of the OPs which they have taken at the time of oral arguments before this Commission. Further Expert Opinion of MAIDS have also observed that ‘The radiograph showed breakage of instrument beyond the canal in both the teeth treated for root canal treatment.’

 

As per exhibit RW1/1 which is the treatment document of the OPs it shows that OPs did Silver based treatment on 12.10.2013 and did RCT completion on 05.12.2013 which they had started on 09.11.2013.  Furthermore the report of the MAIDS clearly talks about ‘faulty RCT’ in which broken instrument was left which was removed by the Doctors at AIIMS on 03.04.2014.  The Complainant has not alleged any negligence on the part of Dr. Sourabh Malik to whom she had gone after she was not getting relief in pain despite of treatment given to her by the OPs between 08.09.2013 to 05.12.2013.  She has stated that when she was complaining about the persistent pain to OPs, that she was suffering from despite of treatment given to her then she was informed by OPs that it will take time to settle and she was given pain killers.  When there was still no relief then only she went to Dr. Sourabh Malik on 27.01.2014 and as per his advice after seeing the X-rays on his Laptop that some broken instruments were inside which were required to be removed and RCT done was faulty, finally she went to AIIMS and she was operated upon on 03.04.2014 and broken instruments were removed.

The contention of the OPs that Complainant did not visit their Clinic after 07.12.2013 to avoid further payment of the treatment is not convincing as the Complainant visited 15 times their Clinic regularly i.e. on 18.09.2013, 24.09.2013, 24.09.2013, 01.10.2013, 07.10.2013, 08.10.2013, 10.10.2013, 15.10.2013, 19.10.2013, 09.11.2013, 12.11.2013, 19.11.2013, 26.11.2013, 28.11.2013, 05.12.2013 (exhibit RW1/1) and she was making the payments also which were noted by the OPs in  exhibit - RW1/1 and according to OPs, the Complainant had paid an amount of Rs.12100/- to the OPs and there was no reason for her not making further payments if she was satisfied and getting relief after undergoing treatment for 15 sittings in about 2 ½ months from OPs. Further the need to go to another Doctor arose for the Complainant only when the OPs were not able to provide her the relief for which she had visited their Clinic otherwise there was no reason for her to leave the undergoing treatment of OPs and visit other Doctors.

 

Complainant  has not filed any documentary evidence that she paid Rs.24,800/- to OPs and going by the payment details mentioned as received by OPs in exhibit RW1/1 i.e. Rs.12100/- this Commission by holding OPs liable for deficiency in service in giving medical treatment to the Complainant and directs as follows:

• OPs (Jointly and Severally) to refund Rs.12100/- along with interest @ 7% p.a. from 18.09.2013 to the Complainant.

 

• OPs (Jointly and Severally) to pay Rs.10,000/- to the Complainant towards mental harrassment and Rs.3000/- towards legal expenses.

 

• This Order shall be complied within 30 days from the date of receipt of the Order by OPs (jointly and severally)  failing which OPs (Jointly and Severally) shall pay the all the above said amounts along with interest @ 9% p.a. till the date of payment.      

    

    Copy of the Order be supplied / sent to the parties free of cost as per rules. 

 

File be consigned to Record Room.