BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, PONDICHERRY

                                         C.C.No.14/2015

Dated this the 30^th day of November 2017

(Date of Institution: 02.03.2015)

G. Sakthivel, son of P. Govindarasou                     

76, Patchaivazhi Amman Koil Street   

Vaithikuppam,

Puducherry – 605 012.

….     Complainant

Vs

M/s Vasan Dental Care rep. by its Authorised Signatory

Raman Towers                                  

Rajiv Gandhi Square        

ECR Road, Pondicherry – 605 011.

                                       ….     Opposite Party

BEFORE:

          THIRU.A.ASOKAN, B.A., B.L.,

          PRESIDENT 

Thiru V.V. STEEPHEN, B.A., LL.B., 

MEMBER

Tmt.  D. KAVITHA,  B.A., LL.B., 

MEMBER

FOR THE COMPLAINANT:  Party in person.                     

FOR THE OPPOSITE PARTY:  Tmt. M. Devasundari, Advocate

O R  D  E  R

(by Thiru V.V. STEEPHEN, Member)

              This is a complaint filed by the complainant u/s 12 and 13 of Consumer Protection Act for directing the opposite party to pay the charges of Rs.8200/- remitted by the complainant with interest at 12% per annum (Registration and Consultation Fee-Rs.200 (two times); Treatment and Crown charges – Rs.8000/-); to pay the complainant a sum of Rs.2.00 lakhs towards compensation for the medical negligence and mental agony and to pay a sum of Rs.20,000/- towards cost of this complaint. 

2.  The case of the complainant is as follows:

The complainant stated that he visited the opposite party clinic on 09.02.2013 with a chief complaint of pus discharge in upper front teeth.  The Dentist in the opposite party hospital advised the complainant to change the crown.  The Dentist advised the complainant that the crown ceramic IPS EMAX which was proposed to be fixed will be stronger aesthetic and it has a warranty of 10 years and the cost of this  treatment was estimated about Rs.8000/-.  The complainant agreed for the treatment and paid the entire amount of Rs.8000/- within 28.02.2013.   Hence the Ceramic EMAX crown was fixed on 03.03.2013.  The complainant further stated that since the crown is not matching with the color of other teeth the complainant felt that the Dentist made a wrong shade selection of the crown.  When the complainant approached the Mahatma Gandhi Postgraduate Institute of  Dental Sciences Puducherry on 04.09.2014 for another treatment for dental the Dentist of MGPGI have also confirmed the above discrepancy.  Therefore, the shade was not selected as per the normal criteria to be followed in this regard.  As the dentist of the opposite party hospital mentioned clearly that this crown has a warranty of 10 years, the complainant reported to the opposite party hospital on 11.01.2015 to get the warranty card and the medical records.  A charge of Rs.100/- was also collected from the complainant for registration and consultation.  No consultation was carried out on that day and no medical history was elicited by any Dentists of the opposite party hospital.  On the request of the complainant, only the summary report and receipts for the payment towards the treatment undergone by the complainant were provided on 11.01.2015.  No Lab records regarding the crown and warranty details were provided to the complainant.  However the complainant was informed by the opposite party hospital that the complainant will be contacted over phone by them within a week form 11.01.2015 regarding provision of warranty card and replacement of new crown instead of existing one.  However there was no fruitful response from the opposite party hospital.  The complainant further stated that the opposite party was addressed by the complainant by a letter dated 27.01.2015 with a request to provide the required medical records and warranty card pertaining to the complainant within 15 days from the date of receipt of letter so as to enable the complainant to get a new replacement of the crown.  Despite the opposite party hospital neither sent a reply to the complainant nor furnished the records till this day therefore the complainant is not satisfied with the service and response of the opposite party hospital.            The complainant also stated that in view of the above changed circumstances, the complainant again reported on this issue on 17.02.2015 to MGPGI, Puducherry about the shade mismatch.  The Dentist of MGPGI advised in writing that the complainant has to undergo the same procedure again due to shade mismatch.    The complainant stated that the negligence of the service on the part of the opposite party ended in loss to the complainant both financially as well as mentally and as a result the complainant has filed this complaint. 

3. The reply version filed by the opposite party briefly discloses the following:

The complaint is not maintainable either in law or on facts.  There is no deficiency in service rendered by the opposite party in the medical treatment given to the complainant. The complainant has not followed the instructions given by the opposite party with regard to their treatment.  The problems faced by the complainant subsequently after 2 years of the treatment cannot be attributed to any fault, negligence or error committed by any Staff or the Administration of the opposite party.  The complainant came to the opposite party’s Puducherry branch on 09.02.2013, with a chief complaint of pus discharge from his upper front teeth since past 10days.  On clinical examination it was found that pus discharge was due to localized periodontitis in relation to upper front right central incisor.  In the said tooth the patient has an acrylic crown which was placed by some other Dentist.  Acrylic crowns are crowns made of a resin which is neither strong nor has the aesthetics to replace a natural tooth.  Additionally it has a high chance of causing allergic reactions as it continuously leaches free radicals and these may alter the tooth and the surrounding gums.  The Doctors at the opposite party hospital completely drainage of abscess to remove all the accumulated pus and antibiotics were prescribed to the complainant.  That in order to prevent future such infections and with a view to improve his esthetics and  natural looking ceramic crown.  After due discussion  with the complainant and the successful resolution of the infection, the complainant was explained the different types of crowns available.  After considering the complainant interest and after explanation of the crowns the complainant decided to go ahead with E. Max crowns (Ivoclar) On resolution at infection it was decided to replace his acrylic crown which was duly attested by the complainant in the estimate.  The tooth preparation was done on 23.02.2013 and impressions were made, complainant was given a temporary crown.  On 03.03.2013, complainant was called to the clinic for cementation of crown.  The crown was verified and complainant’s concurrence was obtained before fixing the crown.  The complainant was satisfied and has not expressed any concern.  The complainant subsequently visited the O.P’s clinic on 11.01.2015 2015 with a complaint of discoloration of his crown and it did not meet his expectation.  The Doctors in the opposite party clinically examined the complainant and advised the complainant to wait till they track crown lab details for further actions.  The opposite party submitted that the discoloration of the crown was not evident at the time of crown cementation and the complainant had never expressed any displeasure with the crowns at the time of fixation or thereafter.  Almost 2 years had passed since the cementation of the crown and there could may reasons for the discoloration which are beyond the purview of the opposite party.  And thereafter the complainant did not turn up for his prescribed appointment nor did he return the calls made to him.  As a part of the opposite party’s impeccable follow up care mechanism a call was made to the complainant father who said he would speak to his son and he would get back to the clinic for further follow up.  While the things being so on 27.01.2015, the opposite party received a letter from the complainant stating that the warranty card and the medical records were not given to him.  The opposite party stated that during the crown discussion it was clearly told that the warranty card and warranty period are applicable only to certain crowns like Lava premium, Lava monolith and not on the other available crowns.  It is highly unfair of the complainant to state that the opposite party have not supplied the warranty card as it has never been promised in the first place.  The opposite party has been treating patients since its operations began 5 years ago and they treat more than 30000 patients every month.  They pride themselves on the patient care and the post-operative follow up mechanism that has been implemented successfully in addition to clinical audits to ensure quality dental care.  They also have all the case records and consents of the patient maintained in and up to date fashion.  While their focus remains clear on giving their best to their patients at all points of time the current demand from the complainant seems unreasonable and unfair as there is no deficiency or negligence on the part of the opposite party.

4.       Points for determination are:

1. Whether the Complainant is a  Consumer?
2. Whether any medical negligence was attributed  by the act of OP?
3. Whether any deficiency in service attributed by the OP
4. Whether the complainant is entitled for any relief?

5. The complainant was examined as CW1 and Exs.C1 to C10 were marked through him and Ex.R1 was marked during the cross examination of CW1. 
Mr. Ramanan, the Manager of OP concern representing the OP examined as RW1. 

6.  Point No.1:

          The complainant has approached the OP and undergone the Emax Crowning Treatment for the upper front teeth on payment of necessary treatment charges fixed by OP as per Ex.C2.  Hence, the complainant is concerned to be a consumer as against the OP and this point is answered accordingly. 

          7. Point No.2:

          The complainant submitted that the complainant  had approached the OP on a complaint of pus discharge from the upper front teeth of the complainant.  The OP on clinical examination, advised the complainant for crowning treatment in the upper front teeth and accordingly, the complainant had undergone the treatment of Emax crowning by the OP on 03.03.2013 vide Ex.C4 on payment of Rs.8200/- towards the Registration and  treatment charges to the OP vide Exs.C2, C1 and C3.  It was submitted by the complainant that on the assurance of OP that the Emax crowning has a warranty of ten years, the complainant went ahead with the treatment.  It was further submitted by the complainant that in the year 2015 when the complainant went for another course of treatment for another teeth with Mahatma Gandhi Post Graduate Institute of Medical Science, Puducherry, it was informed by the Dentist therein that there was a shade mismatch in the crowning of teeth with that of the other teeth of the complainant and that the same defect was felt by the complainant also.  Hence, on 11.01.2015 the complainant approached the OP and demanded the treatment records of the complainant undergone on 03.03.2013 and for guarantee card of  IPS Emax Crowning.   It was further submitted by the complainant that since the records were not provided by the OP to the complainant, a letter dated 27.01.2015 (Ex.C6) was sent to the OP requesting to furnish the warranty card of the crown and the medical records pertaining to the treatment undergone by the complainant with the OP.  Since the OP failed to produce the records as demanded by the complainant, this complaint was filed for profession misconduct and deficiency of service against OP. 

          8. The OP resisted the contents of the complainant and submitted that the details of the IPS Emax crown were duly informed to the complainant that there was no guarantee for Emax crown.  It was further submitted by the OP that the discoloration of the crowning of teeth was reported to the OP by the complainant only in the year 2015, almost after two years of the crowning treatment of the teeth undergone by the complainant with OP and further added that the discolouration of the crown may be due to some other reason and there was no professional misconduct or deficiency of service by the OP and prayed for dismissal of the complaint. 

          9. On perusal of records of the case, it is observed by the Forum that the crowning treatment of the teeth was undergone by the complainant on 03.03.2013 with the OP and it is only when the complainant has gone for a treatment for some other cause of another teeth at Mahatma Gandhi Post Graduate Institute of Medical Science, Pudicherry, in 2015, the complainant came to know from the Dentist therein that there was a shade mismatch in the crowning with that of the other teeth and thereupon the complainant has sought for the treatment records from the OP and the warranty card of the Emax crown through a letter dated 27.01.2015, but the OP in turn except for summary report of treatment dated 11.01.2015 (Ex.C4) and bill payment receipt dated 11.01.2015 (Ex.C5), the details of the IPS Emax crown or the guarantee card of the Emax crown were not provided by the OP to the complainant.  It is contended by the OP that the complainant had not made any complaint of dissatisfaction regarding the treatment of teeth till the year 2015 and it was further contended by the Op that the discolouration of teeth was due to the various treatment taken in teeth at Mahatma Gandhi Post Graduate Institute of Medical Science, Puducherry for the period from 04.09.2014 till 17.02.2015 and it was only on 17.02.2015, the Doctor concerned in the hospital opined that there was a shade mismatch in the crowning of the teeth. 

          10. On the perusal of treatment records of the complainant taken at Mahatma Gandhi Post Graduate Institute of Medical Science, Puducherry (Ex.C8), it is observed that the complainant had taken treatment for teeth from 04.09.2014 to 17.02.2015 and further the records show that only on 17.02.2015 the doctors of that hospital opined that there was a shade mismatch.  When the OP was contended that the discolouration was due to various treatment of teeth taken by the complainant at Mahatma Gandhi Post Graduate Institute of Medical Science, Puducherry, it is the duty of the OP to prove by examining the doctor concerned or any other Expert concerned that the discolouration of teeth was taken due to the mode of treatment of teeth taken by the complainant at Mahatma Gandhi Post Graduate Institute of Medical Science, Puducherry or due to some other factors.  The evidence elicited during the cross examination of CW1 is as follows:

          "It is true that on 17.12.2014 the buccal tubes were welded and cemented as per Ex.C8.  I deny the suggestion that during the weldinig and cementing, naturally the teeth will get discolouration.  I deny the suggestion that the discolourtion caused due to the treatment given by the Mahatma Gandhi Post Graduate Institute of Medical Science."

          11. From this evidence, it is clear that the OP has admitted that there was a discolouration of teeth by the complainant, but, the discolouration of teeth was due to course of treatment taken by the complainant for teeth at Mahatma Gandhi Post Graduate Institute of Medical Science, Puducherry and in that case, the burden of proof shifts to the OP, but the OP has not taken any steps to examine the doctor concerned or any other expert to prove that the discolouration of the teeth to the complainant might have caused due to the course of treatment taken by the complainant at Mahatma Gandhi Post Graduate Institute of Medical Science, Puducherry for the period between 4.9.2014 to 17.2.2015.  The failure on the part of the OP to prove the same strengthens the plea of the complainant and in this context, this Forum inclined to observe that there was medical negligence on the part of the OP in selecting the quality and shade of teeth for crowning treatment of the teeth of the complainant.  This point is answered accordingly.

          12. POINT No.3:

          It was submitted by the complainant that the complainant approached the OP on 11.01.2015 which could be evidenced from the payment receipt Ex.C3 and requested to provide the medical records pertaining to the crown teeth of the complainant by the OP and the guarantee card for the IPS Emax Crown, but the OP except for summary report of the treatment dated 11.01.2015 Ex.C4 and bill payment receipt dated 11.01.2015 (Ex.C5), the treatment records or the guarantee card for the IPS Emax Crown were not provided to the complainant.  On the perusal of the evidence, it is observed that the RW1 has admitted during cross-examination that they have not provided the medical records to the complainant and further deposed that it is not the practice of OP to provide the case sheets to the patients.  The evidence elicited during cross examination of RW1 is as follows:

          "It is true that on 11.01.2015 we have not provided any medical records to the complainant.  It is true that we have received Ex.C6 dated 27.01.2015.  It is not the practice to disclose the fact where the crown was made.  We have not furnished any details to the complainant.  It is not the practice of the OP to provide the case sheets, but it is the practice of the OP to provide clinical / discharge summary."

          13. From the above evidence, it is proved that the OP has not followed or complied with the notification of Dental Council of India as per Ex.C8.  It was further contended by the OP that there was no guarantee to the IPS Emax crown and that the same was informed to the complainant at the time of crowning treatment of teeth to the complainant and if it is so, it is the duty of the OP to provide the details of IPS Emax crown provided to the complainant to substantiate the contents of the OP.  Since the OP has not opted to produce the particulars or details of the IPS Emax crown, this Forum is inclined to draw adverse inference that the crowning treatment done to the complainant is not that of the IPS Emax crown but of some other inferior quality leading to the discolouration of the crown. 

14. Further, on the perusal of the general details of IPS Emax crown provided by the complainant through Ex.C9 it is observed that this product has a warranty for five years and so, the contention of the OP that the IPS Emax crown done to the complainant does not have a guarantee and the non-production of the details of the same goes without saying that the crowning of teeth done to the complainant by OP on 3.3.2013 is not with that of the IPS Emax crown, but of inferior nature resulting in mental agony and monetary loss to the complainant.            15. In view of the discussions, made supra, the OP is held liable for medical negligence and for mental agony and monetary loss suffered by the complaiant due to the deficiency of service by OP.  This point is answered accordingly.

16. POINT No.4:

            In the result, this complaint is hereby allowed and the OP is directed

1. To repay a sum of Rs.8,200/- received by OP towards the registration and treatment charges of crowning of teeth of the complainant; 
2. To pay the complainant a sum of Rs.20,000/- as compensation towards the medical negligence and the mental agony and monetary loss due to the deficiency of service
3. To pay a sum of Rs.5000/- towards cost of this complaint. 

Dated this the 30^th day of November 2017.

1. ASOKAN)

PRESIDENT

(V.V. STEEPHEN)

   MEMBER

(D. KAVITHA)

   MEMBER

COMPLAINANTS' WITNESS:  

CW1           02.07.2015           G. Sakthivel    

OPPOSITE PARTY'S WITNESS:  

RW1           23.08.2016           Ramanan, Manager           

COMPLAINANT'S SIDE DOCUMENTS:

OPPOSITE PARTY'S EXHIBITS:   

Ex.R1         09.02.2013           Photocopy of Patient Health Record pertaining to

complainant

LIST OF MATERIAL OBJECTS:  NIL

1. ASOKAN)

PRESIDENT

(V.V. STEEPHEN)

   MEMBER

(D. KAVITHA)

   MEMBER