By  Sri.P.K.Sasi, President

        The case of the complainant is that on 06/01/12 the complainant approached the 1^st opposite party clinic due to tooth ache. The 2^nd opposite party who was the dental surgeon of 1^st opposite party clinic examined the complainant and told that the extreme end tooth of upper right side of the complainant has got infection and that is the reason for the pain. He prescribed medicine for pain, infection and also asked the complainant to check his BP and blood sugar and asked him to come on 22/02/2012. Accordingly the complainant conducted suggested tests and obtained report stating that everything was normal. Then the complainant approached the 1^st opposite party clinic on 22/02/12 as decided earlier to abstract the infected tooth. The 2^nd opposite party gave required anesthesia and later removed one tooth. Since the entire mouth was under anesthesia the complainant could not know that which tooth is removed by the 2^nd opposite party. The extracted tooth was handed over to the complainant.

        2) After extraction of tooth there happened severe bleeding and the complainant was asked by the 2^nd opposite party to take him to some other hospital to get emergency expert treatments. Then the complainant informed the matter to his family member and he was taken to St. James Hospital at Chalakkudy. There he was admitted in casualty and the experts examined him and he was told that the infected rotten tooth is still in the mouth and the 2^nd opposite party has removed another uninfected tooth due to negligence and there is chance for further pain on the existing tooth. Subsequently on 23/03/12 and 29/02/12 he was treated by the dental surgeon at St. James Hospital.

        3) According to the complainant the treatments received from the 1^st opposite party clinic was not proper. There the 2^nd opposite party extracted an uninfected tooth instead of removing infected tooth. Thereby, the complainant happened to sustain unnecessary mental agony, bodily pain and he also lost a virgin tooth. Moreover, he happened to undergo treatments for the infected tooth subsequently.  He has incurred an amount of Rs.750/- for the treatments at 1^st opposite party clinic hence, this complaint is filed for getting the treatment expenses reimbursed along with compensation.

        4) Being noticed on the complaint both the opposite parties entered appearance through separate counsels and filed 2 separate detailed versions. In the version filed by the 1^st opposite party he has admitted that the complainant was treated at his clinic but he has categorically denied all other allegations stated in the complaint in detail. According to the 1^st opposite party the complainant has approached this Forum without clean hands by suppressing true facts with malafide intention to make undue gain. The 1^st opposite party further submitted that the complainant was examined and treated throughout by the opposite parties and the other staff attached to 1^st opposite party clinic as per the universally accepted standard dental protocol, bestowing all care, caution and attention.

        5) He further submitted that the complainant has not produced the treatment records and other relevant documents relating to the further treatment claimed to have been availed by him. According to him the 1^st opposite party clinic is a well equipped dental clinic, with state of the art equipments and qualified and well experienced dentists and paramedics and staff. He explained the qualifications of both the dentists attached to his clinic in detail.

        6) According to the 1^st opposite party the complainant approached them for dental consultation on 06/01/12 with complaints of dental pain and Grade III mobility of upper right first molar with furcation involvement. Upon examination he was found to be having poor dental hygiene, periodontal disease and dental caries in relation to upper right maxillary region. The complainant was advised antibiotics and analgecis and also duly apprised of the necessity to remove the offending tooth after the infection and pain subsided. He was also advised to do blood examination as well as blood pressure for ascertaining whether he has got diabetic mellitus.

        7) He had come for review only on 22/02/12 and on examination it was found that there was relief of pain and infection had subsided. Therefore, as advised earlier it was decided to extract the infected tooth he was administered Local Anaesthesia and after getting effected all the Anasthesia under all aseptic care the extraction was done with his knowledge and consent. Though, the complainant was advised to follow post extraction instructions, which he didn’t resulting in bleeding from the extraction site. In order to control the bleeding 2 sutures were put and he was advised to bite the cotton in order to control further bleeding.  The complainant though asked to remit the required fee for consultation and extraction, he refused to do so and started abusing the opposite party accusing that the bleeding is due to the extraction of the wrong tooth. Though the opposite parties tried to explain the true and correct facts, which even otherwise the complainant was well aware, he refused to listen to the reason and after forcefully snatching the case sheet and picking a tooth from the bin were the extracted teeth are put, and left the dental clinic in a huff holding out threats that he would teach the opposite parties a lesson. Later the complainant’s son had come to the clinic enquiring about the incident, and he was convinced by the explanation given by the opposite parties.

        8) The 1^st opposite party further submitted that the reason for the complainant’s misapprehension could be because of the non extraction of the root stump at upper right second molar, which the complainant might have thought was the cause of the  pain and infection. In fact the cause for the pain and infection was the upper right 1^st molar with furcation involvement which was extracted by the opposite parties. The root stump upper right second molar is also to be extracted but was not as urgent as that of the offending upper right first molar.

        9) The bleeding after extraction is a medically accepted and well documented medical event, which can occur in spite of the best care, caution and attention on the part of the dentist. The complainant was examined and treated throughout as per the universally accepted standard dental protocol, and he was given the appropriate treatment as the situation warranted. He further  submitted that the complainant is admitted to make unjust enrichment at the expense of the opposite parties on the basis of an unforeseen incident, for which the opposite parties are not liable or responsible. He further submitted that it is reliably understood that the complainant had approached St. James Hospital, Chalakkudy only for his bleeding complaint and not for treatment of the upper right second molar.  The 1^st opposite party denied all other allegations specifically. He further submitted that there is no cause of action for the complaint and neither any negligent act or deficiency in service happened on the part of any of the opposite parties and prayed for the dismissal of the complaint with cost.

        10) The 2^nd opposite party in his separate version submitted similar contentions raised by the 1^st opposite party. The 2^nd opposite party stated that the reason for the complainant’s misapprehension was that at the time of extraction complainant had a root stump  of 17, which he thought is the cause for the pain and infection. In fact the cause for pain and infection was 16 with furcation involvement which had to be extracted immediately on subsiding pain and infection. The root stump of 17 was also to be extracted but was not urgent as that of 16. This is being the true facts the entire contrary allegations in the complaint are denied by the 2^nd opposite party and prayed for the dismissal of the complaint with cost.

        11) Then the case was posted for evidence and the points for consideration was that

                1) whether there was any negligent act which amounts

                    to deficiency in service happened on the part of any

                    of the opposite parties ?

                2) If so what cost and relief

        12) From the side of complainant he has appeared before the Forum and submitted proof affidavit in which he has affirmed and explained all the averments stated in the complaint in detail. He was examined as PW1 and thoroughly cross examined by the counsels for the opposite parties. Dr. Ranjith Jacob Kalliyath was examined as PW2 and he was also vehemently cross examined by the counsels for the opposite parties. From the side of complainant he has produced 6 documents which are marked as Ext. A1 to A6. Ext. A1 is a prescription issued from St. James Hospital dtd. 23/02/12; Ext. A2 (series) Medical bills of St. James Hospital; Ext. A3 is the copy of complaint submitted by the complainant before the Consumer Vigilance cell dtd. 17/03/12; Ext. A4 is the X-ray; Ext. A5 (SP) Tooth and Ext. A6 (series) 4 Nos. Medical bill and prescriptions. The Medical Board report is marked as Ext. X1.

        13) From the side of opposite parties the 1^st opposite party has appeared before the Forum and submitted counter proof affidavit in which he has affirmed and described all the contentions raised in his version in detail. He was examined as RW1 and thoroughly cross examined by the counsel for the complainant. The case record produced by the complainant on request of the opposite parties was marked as Ext. R1 and the sketch of tooth structure was marked as Ext. R2. The treatment records summoned from St. James Hospital is marked as Ext. X2. The 2^nd opposite party also appeared before the Forum and submitted separate counter proof affidavit in which he has affirmed and narrated all the contentions raised in his version in detail. He also examined as RW2 and vehemently cross examined by the counsel for the complainant. The complainant and both the opposite parties filed separate detailed argument notes and we heard in detail also.

        14) We have gone through the evidence adduced and perused the documents produced from both sides. According to the complainant the 2^nd opposite party had extracted wrong tooth thereby, committed utter deficiency in service towards the complainant. Whereas the opposite parties strongly contented that they have not extracted any wrong tooth . It was misapprehension of the complainant and he has filed this complaint only to make undue gain and to defame the opposite parties.

        15) As far as medical negligence cases are concerned the burden is heavy upon the complainant to prove his case. Here only the question to be considered is that whether the opposite parties have extracted any wrong tooth ? It is the duty of the complainant to prove before the Forum with Expert Opinion that the opposite parties acted negligently in providing treatments to the complainant. The PW2 is an independent witness who has treated the complainant at St. James Hospital. He has deposed that “one tooth was removed by him which was badly infected on the right upper side extreme end. He also admitted that the tooth was removed on 26/04/13. In chief examination the learned counsel showed Ext. P5 tooth of the witness but he could not specifically identify that the tooth was belonging to the complainant. There is no exact tests to find out the tooth belongs to whom but by conducting DNA test there may be chances to identify.  He also deposed that whether such test is available in India is not known to him. In chief examination he has deposed that “പല്ലിനു ചുറ്റും മറ്റും എന്തെങ്കിലും അസുഖം ഉണ്ടായാലും കേടാവാത്ത പല്ല് എടുത്തുമാറ്റേണ്ടതായി വരാം”. In cross examination page 5 he has admitted that “ 26/04/13 നാണ് ഞാന്‍ അടുത്തപല്ല് പറിച്ചത്. ഈ രോഗസ്ഥിതിയ്ക്ക് പല്ലുപറിക്കാതിരുന്നാല്‍ ഒരു വര്‍ഷം 3 മാസത്തോളം രോഗിയ്ക്ക് വേദനയും പഴുപ്പുതാങ്ങാന്‍ പറ്റില്ലായെന്നു പറഞ്ഞാല്‍ ശരിയാണ്”. In page 7 he further deposed that “Ext. R1 പ്രകാരമുള്ള ചികിത്സയും Ext. X2 പ്രകാരമുള്ള ചികിത്സയും തമ്മില്‍ യാതൊരു ബന്ധവുമില്ല”. In page 8 he further deposed that Ext. R1 “പ്രകാരം treatment ല്‍ യാതൊരു തരത്തിലുള്ള negligence കുറവോ കാണുന്നില്ല”. The complainant could not bring any expert opinion by examining RW2 to show that any sort of negligent act happened on the part of opposite parties.

        16) In cross examination of the complainant he has admitted that in page 5 of his deposition “20/04/13 തിയ്യതി medical board പരിശോധിക്കുന്ന സമയം കുറ്റിപ്പല്ല് അവിടെ ഉണ്ടായിരുന്നു എന്നു പറഞ്ഞാല്‍ ശരിയാണ്”. He continued in page 6 “അതു പിന്നീട് ഞാന്‍ St. James Hospital ല്‍ പോയി എടുത്തുകളഞ്ഞു. 26/04/2013 ലാണ് അപ്രകാരം പല്ല് എടുത്തത് എന്നു പറഞ്ഞാല്‍ date കൃത്യമായി എനിക്കറിയില്ല”. So there is no evidence adduced from the side of complainant to show that the opposite parties have extracted a wrong tooth. There is no case for the complainant that the earlier pain was existed there after extraction. If the opposite parties were extracted a wrong tooth then the pain ought to have been existed there. However it is specifically alleged in the complaint that he was told by the treated expert doctors of St. James Hospital on examining that the opposite parties have removed wrong tooth and that is the reason for excess bleeding, but such allegation is neither proved through any experts of St. James Hospital nor any documents produced from St. James Hospital. Ext. X1 is the report of the Medical Board constituted at Medical College Hospital, Thrissur. In Ext. X1 report also there is nothing to show that the opposite parties have committed any negligent act upon the complainant. There is no proof adduced from the side of complainant to show that excess of bleeding was happened due to extraction of an uninfected tooth. We have examined the entire materials on record and given a thoughtful consideration to the arguments advanced before us. Considering all these points discussed hereinabove we are of the opinion that the complainant has miserably failed to prove his case before the Forum.

        In the result, we dismissed this complaint without cost.

        Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the open Forum this the     18^th day of November 2017.