State Consumer Disputes Redressal Commission
P. Ramchander, S/O. Late P. Narasaiah ... vs Dr. Malik Jawwad Hassan Khan S/O. Late ... on 4 January, 2012
BEFORE THE A BEFORE THE A.P STATE CONSUMER DISPUTES REDRESSAL COMMISSION AT HYDERABAD. FA 497 of 2010 against C.C. 903/2008, Dist. Forum-III, Hyderabad. Between: P. Ramchander, S/o. Late P. Narasaiah Age: 50 years, Pvt. Service H.No. 10-4-C/152, Addagutta Secunderbad. *** Appellant/ Complainant. And 1) Dr. Malik Jawwad Hassan Khan S/o. Late Malik Akhlaq Hussain Khan Dentist, 2) Dr. Swetha K. Associate Dental Surgeon D/o. Narasimha Swamy 3) Dr. Subba Reddy Consultant Ortho-dentist Dentist, All are carrying their profession at Dr. Malik Dental Cosmetic & Surgery Centre 7-2-663, 1st Floor, Subash Road Opp. Bata Show Room, R.P. Road Secunderabad-500 003. *** Respondents/ Opposite Parties Counsel for the Appellant: M/s. R. Subrahmaniam Counsel for the Respondents: M/s. Md. Muneeruddin (R1 & R2) R3 served CORAM: HONBLE SRI JUSTICE D. APPA RAO, PRESIDENT & SMT. M. SHREESHA, MEMBER WEDNESDAY, THE FOURTH DAY OF JANUARY TWO THOUSAND TWELVE ORAL ORDER:
(Per Honble Sri Justice D. Appa Rao, President) ***
1). Appellant is unsuccessful complainant.
2) The case of the complainant in brief is that as he was suffering from tooth decay and infection he has approached the respondents the dentists for treatment. After examining him they informed that his lower and upper front teeth have to be removed, and replaced with artificial teeth and advised him about the phases of treatment and the expenditure involved. They fixed a fee of Rs. 30,000/- and on that he paid Rs. 28,500/-. They started treating him from 9.2.2008. However, it was not satisfactory. They removed a portion of the teeth and replaced the same with some cheap quality artificial teeth, promising that they would replace with good quality artificial set of teeth which would be effective and look natural. Since the treatment was not on accepted lines he sought for refund of money for which they started abusing him. Due to improper treatment his health got deteriorated . He was unable to take food nor even he could talk properly.
Alleging deficiency in service he claimed refund of Rs. 28,500/-
together with compensation of Rs.
2 lakhs and costs.
3) The respondents resisted the case. While denying each and every allegation made in the complaint they stated that when they insisted for payment of balance of Rs. 1,500/- he got filed the complaint. In fact earlier his wife had taken root canal treatment and Ceramic crown from them in February, 2007 and got fully cured and satisfied. The complainant came on 9.2.2008 for dental treatment. On examination they found that he was suffering from Periodonitis with purulent discharge from the gums and that there was dental decay in the teeth and variable degree of movability of the teeth which requires different treatments like (1) extraction of teeth (2) incision and drainage (3) oral prophylaxis (4) Periodental flap surgery (5) root canal treatment (6) replacement of mandibular teeth with fixed partial denture (7) replacement of maxillary teeth by complete fabrication and removal of complete denture and the period for the entire treatment would be approximately two months. After fixing the fee of Rs. 30,000/- they commenced the dental treatment from 11.2.2008 to 15.4.2008 including various dental treatment sittings. On 21.4.2008 when he came they examined him and found that he was perfect and had no complaint. On that they reminded for balance of amount of Rs. 1,500/- which he promised to pay on the next visit. However, he did not do so, on the other hand filed the complaint with imaginary claims. He was fixed with mandibular partial denture and removable maxillary complete denture under dental procedure. The complaint was filed to make unlawful gain, and prayed for dismissal of the complaint with costs.
4) The complainant in proof of his case filed his affidavit evidence and got Exs. A1 to A5 marked while the respondents examined Op1 as RW1 and got Exs. B1 to B9 marked.
5) The Dist. Forum after considering the evidence placed on record opined that the complainant could not establish that the treatment rendered by the respondents was not as per accepted medical procedure nor could establish that there was deficiency in service nor negligence on their part, and dismissed the complaint, however, without costs.
6) Aggrieved by the said order, the complainant preferred the appeal contending that the Dist. Forum did not appreciate either facts or law in correct perspective. It ought to have seen that the respondents did not even take X-Ray nor informed as to the kind of treatment that was given by them. They stopped treatment abruptly. Original teeth was removed with a promise that they would fix permanent denture.
Since the treatment was not properly done he prayed for refund of amount together with compensation and costs.
7) The point that arises for consideration is whether the order of the Dist. Forum is vitiated by mis-appreciation of fact or law?
8) It is an undisputed fact that the complainant approached the respondents, dental surgeons, when he was suffering from tooth decay and infection and they in turn after examination opined that he had to undergo treatment of (1) extraction of teeth (2) incision and drainage (3) oral prophylaxis (4) Periodental flap surgery (5) root canal treatment (6) replacement of mandibular teeth with fixed partial denture (7) replacement of maxillary teeth by complete fabrication and removal of complete denture. The treatment was commenced from 9.2.2008 up till 15.4.2008 on different sittings. The complainant complains that a cheap quality of artificial teeth were implanted to the lower portion of his jaw. They failed to fix permanent denture. When replacement of upper denture was found unsuitable he handed over the same to the respondents which they did not get it corrected, and therefore he had been suffering for all these days.
9) It is not in dispute the respondents are qualified doctors in dentistry and having knowledge and skill to handle the cases arising out of dental problems. The complainant did not question their credentials. The complainant alleges that X-Ray was not even taken prior to starting of the treatment and he was not aware as to the treatment that was given to him. Permanent teeth were not fixed.
10) At the outset, we may state that Ex. B1 clinical record maintained by the respondents shows the line of treatment given by them. The complainant was asked to take X-Ray and the same was so mentioned in Ex. B1. There was a mention that Orthopantograph was advised on 9.2.2008 and some medicines were prescribed. There was a mention that they used K-file and H-file for the root canal treatment. Root canal treatment was done by incision and drainage of puss. After oral-prophylasis they fixed ceramic bridge.
There was also a mention in Exs.
B1 to B7 that they extracted the upper front teeth and fabricated maxillary complete removable denture and they have given different types of treatment to the lower part and upper part of the teeth of the complainant. Nothing was stated by the complainant as to where these doctors went wrong. The complainant for the reasons best known did not approach any expert to state that the dentures were of cheap quality and that the preparation of dentures were not in accordance with the measurements of the earlier teeth.
11) For the first time during the course of hearing in the appeal, the complainant filed an application FAIA 2553/2011 to receive a prescription issued by Dr. Sameer A. Mahindra of Apollo Hospital mentioning that there was missing teeth in the upper jaw region since 4
-5 years and wants them to be replaced.
He mentioned the approximate expenditure for six implants @ Rs. 45,000/- per implant and BPS denture (teeth replacement) at Rs.
30,000/- The said certificate is received and marked as Ex. A6 however subject to proof and relevancy. The certificate is dated 16.11.2011. The treatment underwent by the complainant was in the year 2008. It is not known why the complainant did not approach any of the doctors for all these years. He did not plead this even in his complaint. He could have filed the affidavit evidence of the doctor who issued Ex. A6 certificate in order to appreciate missing of the teeth for the last four or five years. It is not the case of the complainant even that teeth were missing nor they were returned to the respondents. The respondents themselves filed Ex. B9 Maxillary cast of the complainant. The complainant ought to have got it referred to an expert to state that Maxillary cast that was produced by the respondents does not fit in properly. It is not sufficient if mere allegation is made it has to be substantiated by an expert opinion or by filing medical authority in that regard. The record filed by the respondents shows that the complainant himself singed the consent form Ex. B1. The respondents filed entire record viz., Ex. B2 dental lab technician record, Ex.
B4 clinical record of dental lab (ceramic work), Ex. B6 clinical report of dental lab (Acrylic work) etc. Nothing was made out that there was negligence or deficiency in service on the part of respondents while treating the complainant. Unless the complainant establishes that the procedure adopted by the respondent doctors was not proper, more so, to be confirmed by a medical man in that particular area without which the doctors could not be found guilty of negligence
12) The Honble Supreme Court in Kusum Sharma Vs. Batra Hospital & Medical Research Centre reported in (2010) 3 SCC 480 after considering the entire case law on medical negligence observed :
50. Medical science has conferred great benefits on mankind, but these benefits are attended by considerable risks. Every surgical operation is attended by risks.
We cannot take the benefits without taking risks. Every advancement in technique is also attended by risks.
51. In Roe and Woolley v. Minister of Health (1954) 2 QB 66, Lord Justice Denning said : It is so easy to be wise after the event and to condemn as negligence that which was only a misadventure. We ought to be on our guard against it, especially in cases against hospitals and doctors. Medical science has conferred great benefits on mankind but these benefits are attended by unavoidable risks. Every surgical operation is attended by risks. We cannot take the benefits without taking the risks. Every advance in technique is also attended by risks. Doctors, like the rest of us, have to learn by experience; and experience often teaches in a hard way.
69. This court in a landmark judgment in Jacob Mathew v. State of Punjab & Another (2005) 6 SCC 1 while dealing with the case of negligence by professionals also gave illustration of legal profession. The court observed as under:-
18. In the law of negligence, professionals such as lawyers, doctors, architects and others are included in the category of persons professing some special skill or skilled persons generally. Any task which is required to be performed with a special skill would generally be admitted or undertaken to be performed only if the person possesses the requisite skill for performing that task. Any reasonable man entering into a profession which requires a particular level of learning to be called a professional of that branch, impliedly assures the person dealing with him that the skill which he professes to possess shall be exercised and exercised with reasonable degree of care and caution. He does not assure his client of the result. A lawyer does not tell his client that the client shall win the case in all circumstances. A physician would not assure the patient of full recovery in every case. A surgeon cannot and does not guarantee that the result of surgery would invariably be beneficial, much less to the extent of 100% for the person operated on. The only assurance which such a professional can give or can be understood to have given by implication is that he is possessed of the requisite skill in that branch of profession which he is practicing and while undertaking the performance of the task entrusted to him he would be exercising his skill with reasonable competence. This is all what the person approaching the professional can expect. Judged by this standard, a professional may be held liable for negligence on one of two findings: either he was not possessed of the requisite skill which he professed to have possessed, or, he did not exercise, with reasonable competence in the given case, the skill which he did possess. The standard to be applied for judging, whether the person charged has been negligent or not, would be that of an ordinary competent person exercising ordinary skill in that profession. It is not necessary for every professional to possess the highest level of expertise in that branch which he practices. In Michael Hyde and Associates v. J.D. Williams & Co.
Ltd. , [2001] P.N.L.R. 233, CA, Sedley L.J. said that where a profession embraces a range of views as to what is an acceptable standard of conduct, the competence of the defendant is to be judged by the lowest standard that would be regarded as acceptable. (Charles worth & Percy, ibid, Para 8.03)
74. In another leading case Maynard v. West Midlands Regional Health Authority the words of Lord President (Clyde) in Hunter v. Hanley 1955 SLT 213 were referred to and quoted as under:-
In the realm of diagnosis and treatment there is ample scope for genuine difference of opinion and one man clearly is not negligent merely because his conclusion differs from that of other professional men...The true test for establishing negligence in diagnosis or treatment on the part of a doctor is whether he has been proved to be guilty of such failure as no doctor of ordinary skill would be guilty of if acting with ordinary care...".
The court per Lord Scarman added as under:-
"A doctor who professes to exercise a special skill must exercise the ordinary skill of his specialty. Differences of opinion and practice exist, and will always exist, in the medical as in other professions. There is seldom any one answer exclusive of all others to problems of professional judgment. A court may prefer one body of opinion to the other, but that is no basis for a conclusion of negligence."
"22. In the matter of professional liability professions differ from occupations for the reason that professions operate in spheres where success cannot be achieved in every case and very often success or failure depends upon factors beyond the professional man's control. In devising a rational approach to professional liability which must provide proper protection to the consumer while allowing for the factors mentioned above, the approach of the Courts is to require that professional men should possess a certain minimum degree of competence and that they should exercise reasonable care in the discharge of their duties. In general, a professional man owes to his client a duty in tort as well as in contract to exercise reasonable care in giving advice or performing services. (see:
Jackson and Powell on Professional Negligence, 3rd Edn. paras 1-04,1-05 and 1-56).
88. In Achutrao Haribhau Khodwa & Others v. State of Maharashtra & Others (1996) 2 SCC 634, this Court noticed that in the very nature of medical profession, skills differs from doctor to doctor and more than one alternative course of treatment are available, all admissible. Negligence cannot be attributed to a doctor so long as he is performing his duties to the best of his ability and with due care and caution. 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.
94. On scrutiny of the leading cases of medical negligence both in our country and other countries specially 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:-
I. 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.
II. Negligence is an essential ingredient of the offence. The negligence to be established by the prosecution must be culpable or gross and not the negligence merely based upon an error of judgment.
III. 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.
IV. A medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field.
V. 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.
VI. 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 chances of success for the patient rather than a procedure involving lesser risk but higher chances 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.
VII. 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.
VIII. It would not be conducive to the efficiency of the medical profession if no Doctor could administer medicine without a halter round his neck.
IX. It is our bounden duty and obligation of the civil society to ensure that the medical professionals are not unnecessary harassed or humiliated so that they can perform their professional duties without fear and apprehension.
X. 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.
XI. 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.
Nothing was proved in this case. The complainant ought to have approached an expert immediately if he was of the opinion that the treatment was not rendered in proper lines. Taking a certificate from a doctor would not prove that there was negligence or deficiency in service on the part of respondents, nor any deficiency could be attributable against them. We have perused the entire record, and we do not see any mis-appreciation of fact or law by the Dist. Forum in this regard. We do not see any merits in the appeal.
13) In the result the appeal is dismissed. However, no costs.
1) _______________________________ PRESIDENT
2) ________________________________ MEMBER 04/01/2012 *pnr UP LOAD O.K.