Delhi

West Delhi

CC/08/553

Anil Kumar Choudhary - Complainant(s)

Versus

Medical Superintendent, ESI Hospital - Opp.Party(s)

15 May 2017

ORDER

CONSUMER DISPUTES REDRESSAL FORUM (WEST)

                            GOVERNMENT OF NCT OF DELHI

  150-151, Community Centre, C-Block, JanakPuri, New Delhi – 110058

                                                                                     Date of institution: 17.07.2008

Complaint Case. No.553/08                               Date of order:15.05.2017

IN  MATTER OF

Anil Kumar Choudhary, 494, Cite-1, Vikaspuri, Police StationVikaspuri, New Deli-110018.                                                                                                                       Complainant

VERSUS

Medical Superintendent, ESI Hospital, Ring Road, Basaidarapur, Police Station Moti Nagar, Delhi.                                                                                                                                    Opposite party

ORDER

R.S. BAGRI,PRESIDENT

Present complaint under Section 12 of the Consumer Protection Act hereinafter referred as the act is filed by  Anil KumarChoudhary named above against Medical Superintendent, ESI Hospital BasaiDarapur hereinafter in short referred as the opposite party for directions to the opposite party to pay a sum of Rs.15,00,000/- as compensation for mental and physical sufferings by the opposite party to the complaint.

The brief facts of the complaint as stated are that the complainant is holding ESI No3666852. About two months before filing the complaint small piece of stonewas crushed between his teeth while taking meals. He felt pain in his tooth. He visited Guru Virjanand Charitable Hospitalon 14.05.2008. Where he was examined by a senior dental surgeon. The doctor advised him for root canal treatment (RCT). He gave estimate of Rs.2,000/- for the treatment. On 19.05.08, he visited ESI Dispensary at TilakVihar. The doctor at ESI Dispensary referred him to ESI Hospital, BasaiDarapur. The doctor at ESI Hospital, BasaiDarapur also advised for root canal treatment. He gave appointment for 23.05.8. On23.05.08 he visited ESI Hospital, BasaiDarapur. The doctor for root canal treatment (RCT) thrust needle many times, therefore, blood oozed and drained for 40 minutes. The doctor  attending the complainant realized that he had committed some blunder. Therefore, hesummoned another doctor. He told that he has thrust needle at a wrong place. The doctor attending the complainant after realizing his blunder started removing tooth of the complainant with big instruments. But in vain. In this process half teeth of the complainant was broken. The doctor attending the complainant gave hammer blows and removed the remaining part of the tooth. But blood did not stop. The doctors attending the complainant told him not to open mouth. They advised the complainant to swallow the blood. The complainant returned home. Butblood continued oozing for about 3 to 4 hours.  When the complainant drankwaterblood came out of his nose. When the complainant tookevening meals dals and vegetables also came out his nose.

On 24.05.08, he talked to a dental surgeon on phone. He advised for checkupfrom a specialist doctor. The complainant went to Dr. Goyal’s Dental Centre, Janakpuri. Who told that doctors, who operated the complainant, have committed blunder. They have cut bone and sinus damaged sinus bag. Therefore, blood is coming through nose. This is very serious  condition. He took treatment from outside. He suffered mental, physical and financial agony. There is unfair trade practice, deficiency in service and medical negligence on the part of the doctors of the opposite party. Hence, the present complaint for directions to the opposite party to pay sum of Rs.15,00,000/- on account of expenses born on treatment and mental, physical and financial sufferings by the opposite party to the complainant.

Notice of the complaint was sent to the opposite party. The opposite party appeared and filed reply while contesting the complaint and raising preliminary objections of maintainability of the complaint on the ground that  neither the complainant is a consumer nor the opposite party is a service provider under the act. There is no relationship of master and servant between the complaint and the opposite party and there is no negligence on the part of the doctors of the opposite party. Concealment of true and material facts and the complaint is false and frivolous, therefore, liable to be dismissed.

However on merits, the opposite party admitted that the complainant on 19.05.08 was examined in OPD of the opposite party with complaint of tooth pain after taking treatment from a private doctor. Dr. Gaurav Sharma, MDS after examination diagnosedupper tooth as decayed and after explaining procedure of 4 to 5 seatings advised for root canal treatment.

He gave appointment for 23.05.08 to avoid tooth extraction. On 23.05.08 seating for RCT was done. The doctor followed standard and prescribed procedure for root canal treatment. The RCT is minimum bleeding procedure and no extraction at initial stage of treatment is done unless high gradeinfection persist. The complainant was advised that infection may persist for 10 days and the complainantwill have to visit after 5 days for further treatment of his tooth. The complainantwas provided treatment of removal of narcotic tissue without extraction of tooth. He was also advised for follow up.But the complainant never came for follow up. All other allegations of the complainantare denied and once again  prayed for dismissal of the complaint.

The complainant filed replication to the reply of the opposite party while controverting stand  of the opposite party and reiterating his stand taken in the complaint. He further asserted that the doctor of the opposite party committed blunder. There was profound bleeding inhis teethdue  to medical negligence of the treating doctor. He suffered mentally, physically and financially and once again prayed for directions to the opposite party as prayed in the complaint.

When Shri Anil Kumar complainant was asked to lead evidence by way of affidavit,  hetendered in his evidence his affidavit. Wherein, he once again narrated  facts of the complaint. The complainant in support of his version also relied upon OPD prescription slip from Guru VirjanandCharitable  Hospital and prescription cum treatment card of ESI Hospital and prescription cum treatment card of Dr. Goyal’s Dental Centre.

When the opposite party was asked to lead evidence by way of affidavit, the opposite party tendered in evidence affidavit of Dr. J.N.Mohanty, Medical Superintendent, ESI Hospital, BasaiDarapur and Dr. GauravSharam, MDS, Sr. Surgeon. They have narrated facts of their reply.

Both the parties have also submitted written arguments in support of their respective contentions.

It is worth mentioning here that the matter was referred to Maluana Azad Institute of Dental Science, New Delhi for medical expert opinion. Therefore, a  Board of  four doctors of the institude gave following opinion:-

“1.     Patient reported on 19 August, 2013 at 10.00 am to medical board members in       Maulana Azad Institute of Dental Science, New Delhi.

          2.       Patient failed to provide the committee the following:-

1. The immediate postoperative radiograph done after RCT & extraction.
2. Medical records of RCT done at ESI Hospital.
3. Medical records of extraction of the concerned tooth.
4. Complete records of the treatment done after alleged maxillary sinus perforation.

3.       The patient stated that he does not possess the aforementioned documents.

4.       Medical Board Committee did the clinical and radiological evaluation of the concerned region i.e. left maxillary second molar of the patient on 19^th August, 2013 & found that the concerned extraction site was completely healed.

5.       In view of all the above, the committee is of the opinion that medical negligence on the part of the ESI Hosptial cannot be assessed due to the absence of required records.

6.       It was observed from the prescription made by Dr. A.N. Goyal of Dr. Goyal’s Dental Centre, (Main Najafgarh Road, New Delhi-110085) that the patient Shri Anil Kumar Chouhary had maxillary sinus perforation. If so, it is a known complication of extraction as per dental literature dated 24.05.08. which can be corrected and is not a life threatening situation.”

We have heard the complainant and Ld. counsel for the opposite party. We have also gone through the material on record carefully and thoroughly.

After having heard both the sides at length and going through the material on record it is common case of the parties that the complainant on 19.05.08 was referred to the opposite party. Where RCT was done on 23.05.08.

The allegations of the complainant are that there is unfair trade practice, deficiency in serviceand medical negligence on the part of the doctors of the opposite party during conducting RCT and due to negligence of the doctors of the opposite party, sinus was damaged. Therefore, he suffered infection and all eatables startedcoming  through nose of the complainant. The life of the complainant was endangered. He took treatment from private doctors. He had to suffer mentally, physically and financially.

Whereas, case of the opposite partyis that there is no medical negligence on the part of the doctors of the opposite party. The doctors of the opposite party treated the complainant carefully  as per the prescribed procedure and medical standard by a qualified doctor.  There is no unfair trade practice, deficiency in service and medical negligence on the part of the doctors of the opposite party.

Except affidavit of the complainant there is no evidence on behalf of the complainant that the doctors of the opposite party were negligent in RCT of the complainant. The affidavit of the complainant  the complainant  is rebutted by affidavit of Dr. J.N. Mohanty, Medical Superintendent, ESI Hospital, BasaiDarapur and Dr. GauravSharam, MDS, Sr. Surgeon of the opposite party as well as medical expert board opinion taken from Maulana Azad Dental institute of Science. The medical expert board has opined that without complete record opinion regarding medical negligence cannot be given. The complaint himself failed to produce the record. Hence adverse infrance is drawn against the complainant.Therefore, the complainant failed to prove unfair trade practice, deficiency in service and medical negligence on the part of the doctors of the opposite party.

Hon’ble Supreme Court of India in Kusum Sharma and others V/s. Batra Hospital and Medical Research Centre and others (2010)3 Supreme Court Cases in paras no.89 and 90 laid principles for dealing cases of medical negligence. Which runs as under:-

“89.   On scrutiny of the leading cases of medical negligence both in our country and other countries specially the United Kingdom, some basic principles emerge in dealing with the cases of medical negligence. While deciding whether the medical professional is guilty of medical negligence following well-known principles must be kept in view:

1. Negligence is the breach of a duty exercised by omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do.
2. Negligence is an essential ingredient of the offence. The negligence to be established by the persecutions must be culpable or gross and not the negligence merely based upon an error of judgment.
3. The medical professional is expected to bring a reasonable  degree of skill and knowledge and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence judged in the light of the particular circumstances of each case is what the law requires.
4. A medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field.
5. In the realm of diagnosis and treatment there is scope for genuine difference of opinion and one professional doctor is clearly not negligent merely because his conclusion differs from that of other professional doctor.
6. The medical professional  is often called upon to adopt a procedure which involves higher  element of risk, but which he honestly believes as providing greater chance of success for the patient rather than a procedure involving lessor risk but higher  changes of failure. Just because a professional looking to the gravity of illness has taken higher element of risk to redeem the patient out of his/ her suffering which did not yield the desired result may not amount to negligence.
7. Negligence cannot be attributed to a doctor so long as he performs his duties with reasonable skill and competence. Merely because the doctor chooses one course of action in preference to the other one available, he would not be liable if the course of action chosen by him was acceptable to the medical profession.
8. It would not be conducive to the efficiency of the medical profession if no doctor could administer medicine without a halter round his neck.
9. It is our bounden duty and obligation of the civil society to ensure that the medical professionals are not unnecessarily harassed or humiliated so that they can perform their professional duties without fear and apprehension.
10. The medical practitioners at times also have to be saved from such a class of complainants who use criminal process as a tool for pressurizing the medical professionals/ hospitals, particularly private hospitals or clinics for extracting uncalled for compensation. Such malicious proceedings deserve to be discarded against the medical practitioners.
11. The  medical professionals are entitled to get protection so long as they perform their duties with reasonable skill and competence and in the interest of the patients. The interest and welfare of the patients have to be paramount for the medical professionals.

90.     In our considered view, the aforementioned principlesmust be kept in view while deciding the cases of medical negligence. We should not be understood to have held that doctors can never be prosecuted for medical negligence. As long as the doctors have performed their duties and exercised  an ordinary degree of professional skill and competence, they cannot be held guilty of medical negligence. It is imperative that the doctors must be able to  perform their professional duties with free mind.”

When we apply the above settled principles on facts of the present complaint, we are of the opinion and reached to the irresistible conclusion that complainant has failed to prove unfair trade practice, deficiency in service and medical negligence on the part of the doctors of the opposite party.

Therefore, there is no merit in the complaint. Hence, the same fails and is hereby dismissed.

Order pronounced on :15.05.2017

• Copy of order be sent to the concerned parties free of cost.
• Thereafter, file be consigned to record.

                  

 

 

(PUNEET LAMBA)                                                                          ( R.S.  BAGRI )

     MEMBER                                                                                       PRESIDENT