State Consumer Disputes Redressal Commission
B.Krishnamurthy, S/O.Late ... vs Multi Super Specialty Dental Hospital, ... on 21 January, 2010
BEFORE THE A BEFORE THE A.P.STATE CONSUMER DISPUTES REDRESSAL COMMISSION : HYDERABAD F.A.No.1686/2007 against C.C.No.17/2007, Dist.Forum-II,Tirupathi. Between: B.Krishnamurthy, S/o.late Pullaiah, Hindu, aged 69 years, Senior Citizen, D.No.4-7/1-79, B-Block, Tuda Apartments, I.S.Mahal Road, Tirupati 517 507. Appellant/ Complainant And 1. Multi Super Specialty Dental Hospital, Rep. by its Proprietor Dr.M.Manohar, No.90, Theerthakatta Street, Tirupati. 2. Dr.K.Manohar , BDS, FAGH FCOPFRSH, London, Honorary Dental Surgeon, TTD Hospital & SVIMS 90, Theerthakatta Street, Tirupati. Respondents/ Opp.parties Counsel for the Appellant : Ms. I.Maamu Vani Counsel for the Respondent : Indus Law Firm CORAM: SMT. M.SHREESHA, HONBLE MEMBER, AND SRI K.SATYANAND, HONBLE MEMBER.
THURSDAY, THE TWENTY FIRST DAY OF JANUARY, TWO THOUSAND TEN.
Oral Order (Per Smt M.Shreesha, Honble Member) **** Aggrieved by the order in C.C.No.17/2007 on the file of District Forum-II, Tirupati, the complainant preferred this appeal.
The brief facts as set out in the complaint are that the complainants wife Smt.Santhi Priya aged 53 years and a known diabetic was suffering from pain in the upper right back teeth for some days and on 21.9.2006 she consulted opposite party no.2 who is the Proprietor of opposite party no.1 hospital and she was treated as an out patient. Opposite party no.2 extracted two teeth in upper right back portion of the patient and the complainant submits that no consent was taken to administer anesthesia and she was also not informed of the risks. The opposite party no.2 also did not take into consideration her previous history and did not undertake any tests to check the sugar levels in her body when the patient was a known chronic diabetic. The patient developed complications of swelling in the right cheek and pain in jaw which was radiating to the eye and the head within 48 hours of extraction of teeth and the doctor gave a prescription which is undated but there was no progress in the health till 25.9.2006. The X-ray was taken on this day and the opposite party no.2 referred her case to ENT Surgeon called Dr.P.Sasikumar who diagnosed her case as unilateral maxillary sinusitis post extraction, molars and gave prescription. On 26.9.2006 the complainant took his wife to Partha Dental Hospital and Research Centre for second opinion where she was advised to be admitted by the ENT Surgeon. On their advise the patient was referred to Swarna ENT Super Specialty Hospital, Tirupati on 27.9.2006 and she was advised for scanning of para nasal sinusitis and brain. Based on the reports he called for a physician named Dr.I.V.Ramachandra Rao who referred her to a Neuro Physician and surgeon Dr. T.M.Nagesh and he was consulted on 28.9.2006 at Padmavathi Multi Specialty Clinic, Tirupati and an MRI was taken on 29.9.2006 and as her condition deteriorated, she was admitted in SVIMS and thereafter she was referred to CMC Hospital, Vellore on 30.9.2006. By then the patient was gasping and in an unconscious stage . At CMC Hospital the doctors expressed that the infection quickly spread to the brain damaging the right eye and no surgery could be attempted because of the high risk and the patient was discharged on 1.10.2006. Again the patient was taken back to Tirupati and admitted in S.V.R.R.G.G. hospital Tiruapti on 2.10.2006 and she ultimately died on 4.10.2006. The complainant submits that it was only because of the negligence of the doctor by extracting the teeth without conducting necessary tests and taking proper precautions that had led to her death. Reasonable degree of skill and care was not exercised by the doctor and hence the opposite parties 1 and 2 are liable to pay 15 lakhs together with costs of Rs.2000/-.
The opposite parties in their counter contended that the patient Smt.Santhi Priya i.e. the complainants wife never visited their clinic and never took treatment with them and the opposite party ticket which was produced was not issued by the respondents/opposite parties and that the opposite party ticket was created for the purpose of filing this false complaint. The second opposite party is a qualified dental surgeon and is practicing for the last 24 years and has nothing to do with this case since he never treated the patient and denied all the allegations made in the complaint.
The District Forum based on the evidence adduced i.e. Exs.A1 to A16 and Exs.X1 and X2 dismissed the complaint on the ground that the complainant failed to establish any negligence on behalf of the opposite parties.
Aggrieved by the said order, the complainant preferred this appeal.
Both sides filed their written arguments.
The learned counsel for the appellant/complainant submitted in his grounds that the original receipt of Padmavathi X-ray clinic clearly showed that the case was referred by Dr.Manohar and Ex.X1 was the copy of original receipt issued by Padmavathi X-ray Clinic . The date on the receipt in the carbon copy of cash receipt book at Sl.no.152 was shown as 25.9.2006 and the date in Sl.No.551 and 553 was 25.10.2006 and 27.10.2006 . Therefore it is evident that the cash book receipt produced before the Forum does not relate to the period during which the appellant had referred to. Ex.A2 receipt was issued by the respondent staff on payment of the requisite fee. The appellant further contended that PW.1 is a medical expert though not a dental surgeon and his certificate is ample evidence to show that the deceased died due to complications arising out of extraction of teeth without conducting necessary tests.
On perusal of material on record we observe that it is the complainants case that he took his wife Smt. Shanthi Priya aged 53 years, a known diabetic, on 21.9.2006 to opposite party no.2 who took her as an out patient in opposite party no.1 hospital and extracted two teeth in upper right back portion without conducting any necessary tests prior to the extraction and this resulted in severe complications like swelling on the right cheek and pain in Jaw radiating to eye and head immediately after extraction of teeth and the patient was given another prescription which was undated and there was no progress in her health till 25.9.2006. On 25.9.2006 the patient was taken to opposite party no.1 who advised for X-ray and after examining the X-ray, opposite party no.2 referred her to an ENT Surgeon called Dr.P.Sasikumar who diagnosed the case as Unilateral Maxillary Sinusitis Post Extraction of molars and given prescription.
On 26.9.2006 she was taken to Partha Dental Hosptial and Research Centre for second opinion . On 27.9.2006 she was referred to Swarna ENT Super Specialty hospital where Dr.B.Harinath , ENT Surgeon advised for Lab test and scanning of Para Nasal Sinusitis and Brain. Physician called Dr. Dr.I.V.Ramachandra Rao managed her diabetes and she was advised to go to Neuro Physician and she consulted Dr.T.M.Nagesh on 28.9.2006 at Padmavathi Multi Specialty Clinic by paying Rs.150/- and on his advise he took MRI scan and obtained report on 29.9.2006 and thereafter Dr.Harinath referrd her to SVIMS hospital where she was admitted as an out patient and after prolonged investigations the said hospital authorities referred the patient to CMC Hospital, Vellore and on 30.9.2006 the patient was admitted in the said hospital and the doctors there expressed that the infection quickly spread to the brain damaging right eye and no surgery can be attempted because of high risk and discharged the patient on 1.10.2006 . The patient was taken back to Tirupati and got admitted in S.V.R.R.G.G.Hospital on 2.10.2006 where she turned critical and ultimately died on 4.10.2006. It is the complainants case that it is only because of the negligence of the opposite party in the extraction of the teeth that the patient died.
The opposite parties in their counter have completely denied the treatment and submitted that the patient never approached them and that the prescription was never issued by them. To prove his case, the complainant filed an I.A. before the District Forum summoning the cash receipt book which is marked as Ex.X1. It is observed that though the cash receipt dt.25.9.2006 filed by the appellant/complainant shows the name of the second respondent , the carbon copy of the said cash receipt does not show the name of the second respondent. The appellant/complainant submits in the written arguments that the serial number of the cash receipt filed by the complainant was 552 dt.25.9.2006 and the sl.no.551 filed as Ex.X1 is dt. 25.10.2006 and Sl.no.553 is dt.27.10.2006 and the cash receipt no.552 which is between these two dates is dt.25.9.2006 and it is the case of the complainant that the cash receipt book for the month of October was produced instead of for the September month and therefore the receipt did not contain the words referred by Dr.Manohar B.D.S. Further to our observation we have perused Ex.A2 which is the prescription given on the booklet of opposite party no.1 hospital.
We see no reason to disbelieve this Ex.A2, in the light of the subsequent prescriptions such as Ex.A5 dt. 25.9.2006 issued by Dr.P.Sashikumar ENT Specialist and Ex.A9 C.T. scan of brain dt.27.9.2006 and the prescription of Dr.I.V.Ramachandra Rao Ex.A10 dt. 27.9.2006 and Ex.A11 which was the prescription given by Padmavathi Multi Specialty Clinic, Tirupati, Ex.A12 which is the MRI Report stating that there is Maxillary and Ethmoid Sinusitis on right side and thrombosis in the region of right Cavernous sinus , Ex.A13 which is the out patient card of SVIMS DT.
29.9.2006. We have gone through the medico legal report given by Dr.M.Krishnaiah who opined that Ex.A2 prescription shows that the patient was examined and 6th and 8th teeth of RF, upper jaw were extracted . Opposite party ticket does not show that any investigation was done prior to the extraction. The patient was not evaluated for diabetes,hypertension, bleeding time, clotting time or sensitivity test done for anaesthesia. There is no informed consent also signed by the patient prior to the extraction. This prescription is dt.21.9.2006 and four days thereafter the prescription of Dr. Sashi Kumar ENT Surgeon dt.25.9.2006 clearly states that the patient is diagnosed to be suffering from Unilateral Maxillary sinusitis post extraction of molars. There are sufficient grounds to believe that there was extraction of teeth which consequently led to these complications. We have perused the prescriptions of the dental doctor of Partha Dental Hospital and Research Centre. Ex.A6 states that the patient is diabetic and has approached him with a complaint of pain and swelling in the right cheek and in the history it is stated as underwent extraction in the upper region five days back and advised the patient to get admitted and take consultation from an ENT specialist . Ex.A1 which is the certificate of Medico Legal Consultant and opinion given by Dr. Krishnaiah proves that the patient had undergone extraction of teeth on 21.9.2006 and Ex.A2 prescription proves that this was done by opposite parties .
The prescription does not show whether there were any investigation tests done sensitivity tests for anaesthesia and even test to check clotting , bleeding time sugar levels further infections pertaining to ENT. It is clear from the record that no informed consent was taken from the patient. We rely on the judgement of Apex Court in Samira Kohli Vs. Dr. Prabha Manchanda & Another reported in (2008) 2 SCC 1 wherein it is held as follows:
(i) A doctor has to seek and secure the consent of the patient before commencing a 'treatment' (the term 'treatment' includes surgery also). The consent so obtained should be real and valid, which means that : the patient should have the capacity and competence to consent;
his consent should be voluntary; and his consent should be on the basis of adequate information concerning the nature of the treatment procedure, so that he knows what is consenting to.
(ii) The 'adequate information' to be furnished by the doctor (or a member of his team) who treats the patient, should enable the patient to make a balanced judgment as to whether he should submit himself to the particular treatment as to whether he should submit himself to the particular treatment or not. This means that the Doctor should disclose (a) nature and procedure of the treatment and its purpose, benefits and effect; (b) alternatives if any available; (c) an outline of the substantial risks; and (d) adverse consequences of refusing treatment. But there is no need to explain remote or theoretical risks involved, which may frighten or confuse a patient and result in refusal of consent for the necessary treatment. Similarly, there is no need to explain the remote or theoretical risks of refusal to take treatment which may persuade a patient to undergo a fanciful or unnecessary treatment. A balance should be achieved between the need for disclosing necessary and adequate information and at the same time avoid the possibility of the patient being deterred from agreeing to a necessary treatment or offering to undergo an unnecessary treatment.
In view of the afore mentioned judgement it is clear that the law lays down that an informed consent had to be taken from the patient prior to any surgery performed.
Ex.A6 prescription of Partha Dental Hospital diagnoses the patients case as Oro Antral Fistula and X-ray of PMS is also supporting the same. There was no X-ray prescribed done by the opposite parties and the expert doctor has opined that the doctor had not taken any precautions prior to performing the extraction which led to complications. Keeping the record in view we are of the considered opinion that the burden of proof shifts to the Doctor to establish what exactly the line of treatment was in treating the patient. In the instant case the doctor has baldly denied that he has ever treated the patient and that the prescription ticket was not issued by him. Taking into consideration the subsequent events and medical record of the subsequent treatment referred to the patient we are of the considered view that Ex.A2 prescription cannot be disbelieved .
In Bolam v. Friern Hospital Management Committee, WLR at p.586 it is held as follows:
Where you get a situation which involves the use of some special skill or competence, then the test as to whether there has been negligence or not is not the test of the man on the top of a Clapham omnibus, because he has not got this special skill. The test is the standard of the ordinary skilled man exercising and professing to have that special skill. A man need not possess the highest expert skill.It is well established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art Keeping in view the entire material on record and the arguments put forward we are of the considered view that there is medical negligence on behalf of the opposite parties in not taking due care and not exercised ordinary skill as per the standards of medical parlance, for which they are liable to pay an amount of Rs.5 lakhs to the complainant towards compensation , medical expenses and for the loss of his wife .
In the result this appeal is partly allowed directing the opposite parties to pay Rs.5 lakhs towards compensation, medical expenses and for the loss of his wife together with costs of Rs.5,000/- . time for compliance four weeks.
Sd./MEMBER Sd./MEMBER DT. 21.1.2010