State Consumer Disputes Redressal Commission
Yusupova Saodat, Hyderguda, Hyderabad vs Dr. Sowjanya Kancha, Himayathnagar, ... on 5 December, 2013
A. P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION : AT HYDERABAD CC 106 of 2012 Between : YUSUPOVA SAODAT D/o Yusufpov Arkur, ( Native of Tajikisthan ) Age : 53 years, occ : House wife r/o 3-6-181/1/C, Hyderguda, Hyderabad. .. Complainant And Dr. Sowjanya kancha M/s. Sowjanya Dental Hospital # 1 ,2,3 , I Floor, Shreemukh complex, Himayathnagar, Hyderabad 29. . Opposite party Counsel for the Complainant : M/s. N. Harinath Reddy Counsel for the opposite party : M/s. P. Atchutham Reddy Coram ; Sri R. Lakshminarasimha Rao Honble Incharge President Sri T. Ashok Kumar .Honble Member
And Sri S. Bhujanga Rao .. Honble Member Thursday, the Fifth Day of December Two Thousand Thirteen Oral Order : ( As per Sri T. Ashok Kumar , Honble Member ) ****
01. This is a complaint filed U/s. 17 (a )(1) of C. P. Act by the complainant against the opposite party claiming compensation of Rs. 25 lakhs compensation towards damages and also physical, mental agony under gone by her and family members and costs.
02. The brief facts of the complaint are as under :
She is the native of the country of Tajikisthan. She came to India for Dental implantation in the OPs hospital and admitted as an Out-patient on 27.10.2011 and that the opposite party collected huge money in the name of treatment from her till 22.05.2012 by conducting various tests which are not related to real problem. Though there was no relief to the complainant on account of the medicines prescribed by the opposite party, the OP did not respond for the same. On 22.06.2012, she sent personal notice to the OP stating that she was not responding to the medicines and her condition was deteriorating day by day and even then there was no response from OP. Having waited till 21.07.2012, she approached Dr. Viral Patel Dental Hospital at Ahmedabad and there it was found that she was treated negligently without taking proper care subjecting her to wrong treatment. The acts of opposite party amounts to medical negligence and deficiency in service subjecting her and family members physically and mentally and also monetarily. Hence the complaint claiming compensation of Rs.25,00,000/-.
03. The opposite party filed written version resisting the claim of the complainant and denying the allegations made in the complaint and the brief facts are as under :
The complainant came to her hospital on 27.10.2011 for Dental treatment along with Mr. Najeeb ( Attendant) and daughters Ms. Farzana and Ms. Sabohat. After conducting some tests, it is found that she has been suffering from Diabetes, Hypertension apart from ageing problems. In the OPG it is revealed that many teeth were missing and she had previous dental treatment done elsewhere for most of her teeth and she was found to be a chronic Periodontitis ( long standing infection of Gums, Jaw Bone and Teeth etc). When the complainant came to her hospital on 10.11.2011, the OP explained the complainants during the period of teeth implantation and the three options i.e
(i) Removable dentures (simple and cost effective) , (2) Fixed dentures (slightly expensive but not possible in the present case (3). Implant supported dentures (latest and super specialized treatment but expensive) It was so explained to her daughters as she does not know either the English, Hindi or Telugu and that the complainant consented to accept for replacement of 7 Upper and 7 Lower implants amounting to Rs.4,00,000/-. After conducting, OPG and CT scan, the scan was sent to Swedens Noble Biocare Laboratory for implants planning situated in Mumbai and she was treated by renowned physician and dialectologist and her health was improved after 4 weeks of her first check up.
She paid an amount an amount of Rs.1,00,000/- and thereafter a sum of Rs..2,40,000/- on different dates, in total, Rs.3,40,000/-. She gave consent letter on 23.11.2011 and the opposite party started implantation purchased from NOBLE BIOCARE worth of Rs.3,03,502/- approx. apart from clinical charges which is the worlds best and reliable implant system and so also the warranty is available to the complainant. On 23.11.2011 and 04.12.2011 the implants were placed to the complainant by taking proper care and caution with the suggestions of dialectologist and senior surgeons and that she remained asymptomatic and without complaints from her first treatment. During the surgery the OP found that the complainant is required two more implants and thus the OP had purchased 16 implants instead of 14 implants with the consent of the complainant and hence the cost was increased from Rs.4,00,000/- to Rs.4,60,000/- and that the complainant had paid only Rs.3,40,000/-. After a gap of four months, when she came back for further treatment in the month of April, 2012, she did not complain any problem. On 10.04.2012 the OP had started 2nd stage of treatment and the complainant attended the hospital on 24.04.202 for surgery and 29.04.2012 for check-up and that the healing caps were replaced. The complainant had attended the hospital to check up on 02.05.2012, 06.05.2012, 10.05.2012 and 11.05.2012 and did not attend later. On clinical examination slight paresthesia ( numbness) on right side of lower lip was present and the amount of paresthesia was normal and the patient was promptly informed the progress. On 18.05.2012 when the complainant refused to take CBCT this OP with own expenses had taken the same to the complainant. She missed a number of appointments as scheduled. On 04.07.2012, after going through the reports of CBCT, their advice to undergo an I-CAT Spiral CBCT was refused by her. Having satisfied she had taken treatment to her daughters also. keeping in view the situation and on request that she wanted to continue the treatment in another hospital, the OP had handed over the material on 13.07.2012 worth Rs.1,32,000/- to the complainant under acknowledgement without receiving the balance amount of Rs.1,20,000/-. She lodged a complaint to the P..S. Narayanaguda and the OP explained all the facts with documentary evidence. She did not honour their advice and discontinued the treatment. She did not choose to refer the case to the Dental Council of A. P. to ascertain the truth. After filing of this complaint, the complainant came to the hospital on 04.10.2012 stating that she will withdraw all the cases if the OP pays the amount as demanded by her. The complaint is filed with a malafide intention to harass the OP thereby to extract huge amount. There is no deficiency in service or negligence on the part of the opposite party and thus prays to dismiss the complaint.
04. Complainant filed evidence affidavit reiterating the case as set out in the complaint and marked documents as Ex. A1 to A17 and the OP filed evidence affidavit and marked Ex. B1 to B23 on their behalf. Op served interrogatories on the complainant and she submitted answers to the same.
05. Heard both side counsel and they also submitted written arguments in support of their respective contentions.
06. Now the points for consideration are
(i) Whether there is any professional negligence on the part of the Opposite party in connection with Dental implantation as alleged and thereby rendered any deficient service ?
(ii) Whether the complainant is entitled for compensation and if so to what relief ?
07. POINT NO. 1 &2 :
Since common discussion is necessary for points 1 and 2 , they are taken up to answer together as under :
There is no dispute that the complainant had been to the hospital of the opposite party on 27.10.2011 for treatment to her dental problem accompanied by her daughters etc. and that the OP examined her and found that she was suffering from diabetes and hypertension and that many of her Teeth were missing. According to the opposite party it was a case of chronic Periodontitis i.e. long standing infection of gums, jaw bone and teeth etc and therefore the opposite party planned for replacement by artificial teeth and suggested the following three modes for treatment of the same.
(i) Removable dentures (simple and cost effective) , (2) Fixed dentures (slightly expensive but not possible in the present case (3). Implant supported dentures (latest and super specialized treatment but expensive) According to the opposite party for implanting 7 upper and 7 lower teeth total expenditure comes to Rs. 4,00,000/- and that the complainant agreed for the same and then necessary medical investigation such OPG and CT scan were taken and that the opposite party explained the consequences and risks in the said process to the complainant and also obtained due consent from her and that since the complainant was not able to understand English and local languages it was so explained through her attendee and daughters. Ex. B-9 dt. 23.11.2011 which contains the signatures of the complainant reveals that the nature of implant surgery, therapeutic risks and the treatment alternatives to dental implants were fully informed to the complainant and she gave consent to the surgical placement of the implants in her jaws and she also agreed to maintain these implants as prescribed by the dentist. The said document also reveals that surgical risks include but are not limited to post surgical infection, bleeding, pain, facial discolourization sinus or nasal perforation during surgery, TMJ injuries or spasm, bone fractures, slow healing, transient numbness of the lip, chin or tongue. Possible complications of local anesthesia may include prolonged numbness, bruising, nerve damage and may also include that application to general anesthesia including allergic reactions up to and including death and the said document also goes to show that no assurance has been given by Op. 2 to the complainant that the proposed implant will be completely successful in function or appearance or to in complete satisfaction and that it is anticipated that the implant will be permanently retained and since the practice of Dentistry is not an exact science , long term success cannot be promised. Further the said document discloses that the complainant has been informed that the implant and the adjacent teeth must be maintained in a clean and hygienic manner and that she agreed to perform daily home care in accordance with the instructions provided by her dentist and that she would be regular for her periodic professional maintenance visits and that smoking will hamper the success of chances of implants and that she promised to refrain from smoking for the duration for which it has been advised she had undertaken her responsibility to inform to OP any problems that may occur following the surgery. At the foot of the said consent letter, there is a certification that the complainant had read and fully understood above authorization and information and gave her consent to the implant insertion and surgery and that all of her questions, if any , have been answered. The complainant contends that her signatures were obtained on some papers without explaining anything but there is no dependable evidence or material from her side in the said context and neither the attendant nor her daughters who accompanied her to the hospital gave affidavit evidence supporting the complainant in the said context and as such the self-serving statement of the complainant that without explaining anything to her the OP had taken her signatures on some papers could not be appreciated in her favour and possibility her designing the said plea to overcome the said consent cannot be ruled out and as such no importance need to be given for the contention of the complainant in the said context. Even assuming that something went wrong in the said surgical procedure of implantation of the teeth it cannot be construed as medical negligence unless it is proved that the doctors had not acted with reasonable skill. It is not the case of the complainant that the OP does not possess required skill or knowledge and on the other hand considering it as one of the best hospitals she approached the OP for such a treatment having come over from Tajikistan to India. Error of judgment if any cannot be construed as negligence. According to the complainant, initially, 14 teeth were agreed to be implanted by the OP to her and later it was enhanced to
16. OP also said that during the process it was found so necessary. However, there is no serious contest from the complainant that she had been suffering from hypertension and also diabetes and on account of such diabetes there was every possibility of problem to her teeth. The complainant contends that OP collected the amounts from her in the shape of US dollars and that being a doctor she ought not to have collected money in US dollars in India without an authorization from the Reserve Bank of India to collect money in foreign currency but there is no dependable evidence from her side that she paid amount (S) to the OP in US dollars. On the other hand, the remitting slips filed by the complainant disclose her name as remitting customer which were presented in Vijaya Bank and therefore her contention aforesaid holds no water to say that the OP violated the Foreign Exchange Management Act.
08. According to the OP she started implantation which was purchased and placed from NOBLE BIOCARU worth Rs.3,05,502/- apart from clinical charges and the said institute is worlds best and reliable implant system and that there is warranty for replacement of such implants which is beneficial to the complainant and in the said context she marked Ex. B11. There is no dispute that 23.11.2011 and 4.12.2011 the implants were placed to the complainant by taking measures with the suggestion of dialectologist and senior surgeon. According to the OP, the complainant remained asymptomatic and without complaints for several months and that she did not complain anything with regard to the complications from her first treatment. It is also the evidence of OP that during the surgery it was found that two more implants were required to the complainant and therefore with her consent the said two other implants apart from 14 implants described supra were implanted and thus 16 implants were purchased and in such circumstances cost of the treatment from Rs. 4 lakhs to Rs.4,60,000/- and that out of the said amount the complainant paid only Rs.3,40,000/- vide Ex. B 1to B5. The OP also testified that since last so many years, she has experience in the treatment of implantation and had taken the guidance of senior doctor so also the guidance of diabetologist etc and that did not render any deficient service to the complainant in treating her. It is her contention that after such implantation the complainant had attended the hospital for check up on 2.5.2012, 6.5.2012, 10.5.2012 and 11.5.2012 but did not attend later on and that during such checkup the complainant informed about the pain and numbness etc which are the usual complications which were explained to her and in such circumstances the OP had called Dr. Navin, Oral and Maxillofacial surgeon and started clinical examination with an intention to give proper treatment without any chance and in that context she relies upon Ex. B18 dated 14.5.2012. According to her, on clinical examination slight paresthesia ( Numbness ) on right side of lower lip was found and that the patient was promptly informed the progress which reduced to a great extent. In the consent letter aforesaid itself the OP explained regarding side effects and the complainant was also convinced in the said context and also agreed for such a surgical procedure. According to the OP on 18.5.2012 she advised CBCT but the complainant refused for it and even then she with her own expenses had taken CBCT vide Ex. B20 to the complainant to visualize the implant position as the complainant did not come regularly to the hospital for check up and also as she missed a number appointments scheduled by the OP. The OP also helped the complainant in addressing Ex. B8 letter to the Police Commissioner with an intention to help the complainant in getting VISA to stay in India. The OP also pleaded that on 4.7.2012 the complainant came to the hospital and after going through reports such as CBCT she advised her to go an iCAT spiral CBCT for proceeding further but she did not do so and in the mean while opposite party came to know that the complainant had taken second opinion from other doctor and therefore refused to get spiral CT and left the hospital and later on, she refused to take further treatment from Op and requested to return the material purchased for her implantation and in such circumstances OP had handed over such a material on 13.7.2012 worth of Rs.1,32,000/- but the complainant received and acknowledged the same vide Ex. B21 and that it was so done though the complainant did not pay due amount of Rs.1,20,000/- to her facilitating her to take her treatment at her place of choice. It appears that the complainant made a police complaint against the OP to the Police concerned. The OPs contention is that after receipt of a phone call the Managing partner of OP hospital went to the police station and explained all the facts to the SHO Narayanaguda by submitting necessary documents including case sheets, investigation reports. Probably for the said reason, the police did not register any case against the OP and hence it is also a circumstance against the complainant. The complainant pleads that the police advised to submit complaint to the concerned Medical board but there is no dependable evidence from her side that she did so. There is no dispute that OP replaced the artificial teeth. According to the OP thereafter the complainants health was improved after four weeks of her first check up and then she had started her dental treatment.
09. .
According to the OP, the complainant paid Rs.1,00,000/- on 18.11.2011 vide Ex. B2 as advance for the said treatment leaving a balance of Rs. 3 lakhs and thereafter she paid an amount of Rs.2,40,000/- on different dates vide Ex. B3 to B5.
10. The opposite party filed the following decisions in support of her contentions.
In C. P. Sreekumar ( Dr.), MS ( Ortho) Vs. S. Ramanujam, reported in (2009) 7 SCC 130, the Honble Supreme Court held that onus of proving medical negligence lies on complainant. Mere averment in complaint is not evidence and it is to be proved by cogent evidence. The Honble National Commission, in Mrs. Shantaben Muljibhai Patel and others Vs. Beach Candy Hospital and Research Centre and others, reported in I (2005) CPJ 10 (NC), came to the conclusion that when the hospital equipped with necessary equipment and doctors performed duties to best of their ability and with due care and caution, something if goes wrong, no negligence/deficiency in service is to be proved. In Subhashis Dhir and Another Vs. Smt. Sanjukta Sengupta and others, reported in 1999 (3) CPR 13 (NC), the Honble National Commission opined that doctor should not be held guilty of giving wrong treatment without some medical evidence to that effect. In a decision reported in 2009 (2) SCCLA 629 in Martin F D souza Vs. Mohd. Ishfaq, it was held that medical PR actioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field and that standard of care has to be judged in the light of knowledge available at the time of the incident and not at the date of the trial. It was also held in the said decision that Test in fixing negligence is the standard of the ordinary skilled doctor exercising and professing to have that special skill, but a doctor need not possess the highest expert skill. In this case, there is no dependable evidence from the side of the complainant that the OP doctors conduct fell below that of the standard of a reasonable competent practitioner in the said field and all the above decisions support the case of the opposite party.
11. As per literature filed by the opposite party the Dental Implantology has become a widely accepted mode of treatment. Because of its ability to restore esthetics and function it has become the preferred option for replacing hopeless and missing natural teeth. Despite its high success rate, however, many complications have been encountered with its use and that depending on the degree of nerve injury, alteration in sensation, varies from mild paresthesia to complete anesthesia and that also it may be transient, manageable, or in certain cases permanent and that alteration sensation can occur in the form of paresthesia, dysthesia, analgesia, or anesthesia, and that paresthesia is an alteration in sensation that can be felt as numbness, burning or prickling sensation, either evoked or spontaneous, here as dysthesia, is a spontaneous or evoked unpleasant abnormal sensation. Reference for such literature, the following address is given.
Periodontic Division, Oral Basic & Clinical Sciences Department, Faculty of Dentistry,king Abdulaziz University, Jeddah, Saudi Arbia Corresponding author, e-mail [email protected] DOI:10.1563/AAID-JOI-D-09-00059 Journal of oral Implantology 401 Reference :
Kipp DP, Goldstein BH, Weiss WW Jr. Dysesthesia after mandibular third molar surgery a retrospective study and analysis of 1377 surgical procedures J Am Dent Assoc. 1980;100:185-192.
The literature submitted by opposite party also goes to show that Noble replace is the worlds most used implant system and that there is also warranty for replacement of such implants which is beneficial for the complainant. The complainant did not avail the said warranty and the complainant did not prove otherwise in the said context.
12. The complainant did not submit any other literature contra to it but mostly relies upon Ex. A -16 report of the Dr. Viral Patel of Ahmadabad, wherein, it is mentioned that eight implants in Maxilla and eight implants in Mandible were placed by another Dentist ( OP herein ) at Hyderabad nine months back to the complainant and that all the implants were covered by healing abutments and that fourteen units PFM single piece prosthesis for upper and 14 unit single piece prosthesis for lower was with the patient on cast models with abutments on the casts (MO.1) and that the patient was having complain of paresthesia in right Mandibular chin region and that on X-rays examination and CT scan reading it is found that two implants on mandibular right posterior region were in the mandibular canal Impinging the inferior alveolar nerve and thus causing paresthesia in metal region on right lower side and that placement and try in of the prepared prosthesis were done but the prostheses was not acceptable by the patient as it was not proper. The concerned doctor who said to have issued original of Ex. B16 report did not file his affidavit evidence in support of the complainant that the OP doctor treated the complainant negligently and that in a negligent manner damaged the nerves of the complainant and that it was a wrong treatment. Had the said medical practitioner filed medical evidence there was a chance for the OP to cross examine him with reference to the said literature and other accepts to disprove the contention of the complainant but since he did not file such affidavit evidence there was no chance for him to cross examine him and impeach the credit of the said Ex. B16 and also the contention of the complainant and as such no importance need to be given for such a report to conclude that opposite party rendered deficient service to the complainant. Had the said Dr. Viral Patel of Ahmadabad was produced by the complainant certainly OP doctor would have questioned him as to how the prosthesis was not acceptable by the patient so also how it was not proper.
13. In the orders of this Commission in FA 1258/2008 dated 23.03.2009 pertaining to a dental issue, it was held that simply because a patient has not favorably responded to a treatment given by a doctor or a surgery has failed the doctor cannot be held straight way liable for medical negligence by applying the doctrine of res ipso loquitor and that no sensible professional would intentionally commit an a cat or omission which would result harm or injury to the patient since the professional reputation of the professional would be at stake and that a single failure may cost him dear in his lapse and the said decision also comes to the rescue to the OP herein.
14. As already described supra at the time of taking consent from the complainant the said risks were explained to the complainant and having satisfied with the caliber of the OP the complainant accepted to take treatment with her and since she fell some numbness and pain. She agitated alleging that OP doctor rendered deficient service which could not be appreciated. As seen from the complaint, she alleged that she was subjected to certain tests by the OP but some of the tests were not related to the real problem for that the complainant is not competent to say and there is no experts evidence that unnecessary tests were conducted and as such the said allegation also is not useful for the complainant. her chronic diabetes may also be a reason for not responding to the medicine and the complainant did not establish with any convincing material or depose in her evidence that she had taken care of her teeth and that attended for reviews as advised and described in the consent letter and for the fault committed by the complainant, Op cannot be blamed. In the complaint, the complainant merely stated that she was not given proper treatment by the OP and negligent in treating her and she did not describe details and later on developed the same and hence no importance need to be given for such a vague allegation. The case sheet record also discloses that OP doctor had taken necessary precautions in conducting surgery, prescribing medicines, etc. None of the documents Ex. A1 to A17 are helpful for the complainant to allow the complaint. Nothing important points were found in the answered to the interrogators served by OP to decide the case in favour of the complainant. Thus viewed in any point, the complaint is devoid of merit and is liable to be dismissed. MO.1 box containing ceramic teeth is ordered to be returned to the complainant after appeal or appeal time is over.
15. In the result, the complaint is dismissed but without costs.
INCHARGE PRESIDENT MEMBER MEMBER DATED : 05.12.2013.
( to be contd.. ) APPENDIX OF EVIDENCE EXHIBITS MARKED For the complainant:
Ex.A1 Pass port, dated 04.08.2007 Ex.A2 Visa, dated 21.10.2011 Ex.A3 Admit Card (Dr. Sowjanya Hospitals), dated 27.10.2011 Ex.A4 Receipts & Expenditure details, dated 27.10.2011 to 21.06.2012 Ex.A5 Treatment chart, dated 23.11.2011 Ex.A6 Treatment chart Ex.A7 Treatment chart Ex.A8 Focus Diagnostics, dated 11.11.2011 Ex.A9 Medical Report, dated 23.11.2011 Ex.A10 Certificate
-1 by Dr. Sowjanya, dated 31.10.2011 Ex.A11 Lab Report, dated 01.11.2011 Ex.A12 Certificate
-1 by Dr. Sowjanya, dated 22.05.2012 Ex.A13 Flight tickets, dated 27.05.2012 Ex.A14 Flight tickets, dated 27.07.2012 Ex.A15 Certificate issued by Dr. Viral Patel, Ex.A16 Certificate issued by Dr. Viral Patel, dated 23.08.2012 Ex.A17 Flight tickets to hyderabad, dated 22.08.2012 For the Opposite party-
Ex.B1 Medical History and information Ex.B2 Receipt, dated 18.11.2011 Ex.B3 Receipt, dated 02.12.2011 Ex.B4 Receipt, dated 21.12.2011 Ex.B5 Receipt, dated 07.03.2012 Ex.B6 Letter Sowjanya Dental, dated 31.10.2011 Ex.B7 Focus Diagnostics, dated 11.11.2011 Ex.B8 E-mail, dated 18.11.2011 Ex.B9 Letter by complainant , dated 23.11.2011 Ex.B10 Photos Ex.B11 Tax invoice, dated 14.11.2011 Ex.B12 Tax invoice, dated 14.11.2011 Ex.B13 Tax invoice, dated 28.11.2011 Ex.B14 Tax invoice, dated 29.11.2011 Ex.B15 Tax invoice, dated 06.12.2011 Ex.B16 Photos Ex.B17 Photos Ex.B18 Photos Ex.B19 Photos Ex.B20 Secunderabad Dental Imaging & Diagnostics, dated 18.05.2012 Ex.B21 Letter from Dr. Sowjanya, dated 13.07.2012 Ex.B22 Letter from Managing Director, Sowjanya Dental Hospital, Ex.B23 Photos Mo.1 Box containing ceramic teeth.
INCHARGE PRESIDENT MEMBER MEMBER DATED : 05.12.2013.