State Consumer Disputes Redressal Commission
Dr. Bappaditya Sikdar vs Mrs. Alo Sikder on 9 December, 2019
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 First Appeal No. A/305/2018 ( Date of Filing : 28 Mar 2018 ) (Arisen out of Order Dated 26/02/2018 in Case No. Complaint Case No. CC/245/2015 of District South 24 Parganas) 1. Dr. Bappaditya Sikdar BDS, Dental Point, Diamond Apartment, 210, Diamond Harbour Road, P.S. Thakurpukur, Kolkata - 700 008. ...........Appellant(s) Versus 1. Mrs. Alo Sikder W/o Sanjay Kr. Sikdar, 70, Ramchandra Pally, Barisha, P.S. - Haridevpur, Kolkata. ...........Respondent(s) BEFORE: HON'BLE MR. JUSTICE ISHAN CHANDRA DAS PRESIDENT HON'BLE MRS. SAMIKSHA BHATTACHARYA MEMBER HON'BLE MR. SHYAMAL KUMAR GHOSH MEMBER For the Appellant: For the Respondent: Dated : 09 Dec 2019 Final Order / Judgement
HON'BLE JUSTICE ISHAN CHANDRA DAS, PRESIDENT This appeal has been directed against the judgment and order dated 26-02-2018 passed by Ld. DCDRF, Baruipur, South 24-Parganas in CC/245/2015 where Ld. DCDRF while disposing of the complaint case allowed the same on contest against the OP with cost of Rs. 10,000/- (Rupees ten thousand) and directed the OP to pay compensation of a sum of Rs. 40,000/- (Rupees forty thousand) to be paid within a month from the date of the order failing which the amount of compensation and cost will bear interest @ 12% p.a. till realization.
Being aggrieved by such order the OP no. 1/Dr. Bappaditya Sikdar preferred the appeal.
The case of the complainant/respondent (hereinafter referred to as the complainant) was that the complainant paid visit to the chamber of the appellant/OP (and hereinafter referred to as the OP) on 20-03-2015 with a complaint of an unbearable pain of a tooth on the left side of the upper jaw. The affected tooth was pointed to the OP by the complainant herself to which the OP get her on certain medication for three days with a direction that the affected tooth would be extracted after three days. X-ray of the affected tooth was taken by the OP on that date and it came to light to the OP that she was a diabetic patient associated with cardiac ailments. On 24-03-2015 the complainant paid visit to the chamber of the OP once again and the OP applied anesthesia on the affected part of the gum and asked the complainant to wait outside his chamber for a few minutes. The complainant felt uneasy with complaint of chocking of her throat with difficulty in breathing which was immediately reported to the doctor/OP. The OP asked the complainant to be seated on the clinical chair and advised her to inhale a soaked cotton. About ½ hours of such instance the doctor extracted one tooth of the patient and called her husband inside the room to show the extracted tooth which in two pieces. As the patient was under the influence of anesthesia and pain she was eager to return her home, the doctor verbally advised the patient to report on 31-03-2015 for removal of stitch with certain medical advice and on payment of professional fees of Rs. 300-/. On 31-03-2015 the patient reported the OP/doctor for removal of stitch thread. The doctor examined the patient and told her that there was no infection and everything is normal and the stitch thread was removed by an attending girl. On 02-04-2015 when the pain subsided the patient found that the particular partly broken tooth specifically shown to the OP for treatment remained as it was but the OP extracted a different tooth just beside the partly broken tooth to which the patient was shocked and suffered immense mental agony due to the loss caused to her by the OP/Dental surgeon. On 03-04-2015 while the husband and other family members of the patient went to OP/doctor and pointed out the loss caused to the patient due to his negligent act and carelessness the OP argued that the condition of the tooth no. 6 (six) uprooted by the OP was worse than that of the tooth no. 5 (five) and that is why the OP decided to extract tooth no. 6 (six). The complainant alleged that when the members of her family were discussing about taking steps before the Consumer Disputes Redressal Forum, the OP wrote another prescription and took another X-ray free of charges. On 03-04-2015 where he wrote something about the tooth no. 5 (five) which were not eligible at that point of time. As there was continuous pain in the partly broken tooth, the patient paid visit to one Dr. Soma Biswas for consultation and treatment on 04-04-2015 and the said doctor removed the broken part of the tooth no. 5 (five) and advised her to report on 10-04-2015. Said doctor, Soma Biswas after examination of the X-ray plate taken on 20-03-2015 pointed out that the tooth no. 6 (six) could have been saved by Root Canal Treatment (RCT) and there was no need for immediate extraction. The specific allegation of the complainant that the OP/Dr. Sikdar was not careful and negligent in giving proper treatment of the partly broken tooth in respect of which intervention was sought for if the doctor/OP extracted the tooth no. 6 (six) (instead of tooth no. 5) without obtaining consent of the patient though the patient specifically pointed out the broken tooth in respect of which the treatment was sought for. The complainant claimed that she suffered mental pain and agony due to the extraction of the tooth no. 6 (six) for which she claimed Rs. 80,000/- (Rupees eighty thousand) towards compensation and litigation cost of a sum of Rs. 10,000/- (Rupees ten thousand).
The OP/appellant (hereinafter referred to as the OP) filed a written version to contest the complaint case and contended that the averments as stated in the petition of complaint were distortion of fact as the extraction of the damaged tooth was so done for the betterment of the patient who informed the OP that the blood sugar of the patient was under control. The OP/doctor in his written version explained that the patient was informed about the extraction of the damaged tooth though alternatively it was suggested to her that the tooth would be saved by Root Canal Treatment (RCT). Denying and disputing the negligence or carelessness on his part in treating the patient/complainant he ultimately prayed for dismissal of the same.
The factual aspects of the matter i.e. sufferings of the complainant with regard to her tooth no. 5 (five) on the left side of the upper jaw, treatment by the OP/Doctor Bappaditya Sikdar at his chamber at 210 Diamond Harbour Road are not disputed. It is alleged that the OP/Doctor extracted the tooth no. 6 (six) from the upper left jaw, though the complainant went to him for treatment of tooth no. 5 (five) as she was suffering from toothache and which was not bearable for her at the material time but the treating doctor instead of proper investigation of the patient with regard to blood sugar level or breathing problem as complaint of simply uprooted the tooth no. 6 (six) by applying local anesthesia and the act of the treating doctor was a negligent act on his part causing much sufferings of the patient.
Ld. Counsel appearing for the OP/Doctor in course of argument drew our attention to the reply of the doctor against the questionnaire filed by the complainant (page 78 of the file) and pointed out that the patient told about the tooth to be extracted i.e. 26 and want to be restored by RCT and as per diagnosis there were list of works to be done have been written in the prescription. It was also pointed out that the complainant/patient reported the problem about the fractured tooth no. 25 on 03-04-2015 though the said tooth was removed on 31-03-2015. It is also submitted that the OP denied his responsibility with regard to fractured tooth no. 25 by any other incident happened in between 31-03-2015 and 03-04-2015. But the fact remains after such mishap the patient was treated by one Dr.Soma Halder on 04-04-2015 and that doctor diagnosed vertical fracture of tooth no. 5 (five) but the tooth no. 6 (six) was extracted from outside about 11 (eleven) days back. The said doctor, Soma Halder observed that the patient was suffering from high blood sugar, hyper tension, thyroid etc. but the doctor/OP did not care for getting the patient examined pathologically to ascertain the condition of the patient before uprooting the tooth. The complainant claimed that she went to the Doctor/OP for treatment of the tooth no. 5 (five) but if we take the plea of the OP granted for extraction of the tooth no. 6 (six), as it was urgently needed for the recovery of the patient but at the same time we cannot overlook the fact that the consent of the patient party was not taken and it should have been taken earlier when the doctor found that the extraction of the tooth no. 6 (six) was urgently needed. Since there is no document with regard to consent of the patient for extraction of the tooth no. 6 (six) it can safely be held that the Medical Officer did it hurriedly for wrongful gain at the cost of the patient who had to get the loss of her tooth no. 5 (five) extracted instead of tooth no. 6, though it is submitted before us that the extraction of that tooth of the patient was not necessary and it could be saved by RCT. In such a situation, the findings of Ld. DCDRF that the OP was negligent in treating the patient was justified. Much have been argued from the side of the OP/appellant that no expert opinion was taken so far as the medical negligence of appellant/OP is concerned and it was confidently urged by Ld. Counsel for the appellant/OP that the expert's opinion should have been taken in deciding the case but it was counteracted by his Ld. counterpart who submitted with a decision of Hon'ble Apex Court in V. Kishan Rao Vs. Nikhil Super Speciality Hospital and others, reported in (2010) 5 SCC 513. It is submitted before us that the expert's opinion is needed to be obtained in appropriate cases of medical negligence but whether the allegation against the doctor is sufficient to prove his negligence, the opinion of experts need not be obtained in deciding the case. In the instant case the patient went to the OP/Appellant for treatment of her tooth no. 5 (five) of the upper left jaw but the doctor extracted the tooth no. 6 (six) out of his own with an alibi that the condition of the said tooth (No. 6) was more critical than that of the tooth no. 5 (five) in respect of which the treatment was required by the patient. Such an act of the OP/appellant is a glaring example of medical negligence in treating the patient and the doctor did not follow the norms in treating the patient by applying normal procedure to be followed before uprooting the tooth of a diabetic/hyper sensitive patient. That being the situation Ld. DCDRF rightly observed and held that the OP/appellant was negligent in treating the complainant by applying the principle of 'res ipsa loquitor' and he would be liable to pay compensation as asked for. Having regard to the facts of the case we are of the firm opinion that Ld. DCDRF did not commit any mistake in holding the appellant guilty of negligence and directing him to pay compensation etc. Hence we dismiss the appeal, affirm the judgment and order impugned and direct the OP/appellant to comply the direction of Ld. DCDRF within a period of one month from the date of this order. Parties do bear their respective costs of Appeal. [HON'BLE MR. JUSTICE ISHAN CHANDRA DAS] PRESIDENT [HON'BLE MRS. SAMIKSHA BHATTACHARYA] MEMBER [HON'BLE MR. SHYAMAL KUMAR GHOSH] MEMBER