Delhi District Court
Mrs. Vijaya Mukhi vs Dr. (Mrs.) Minna S. Tandon on 29 February, 2012
Suit No.775/10
IN THE COURT OF MS. CHHAVI KAPOOR
CIVIL JUDGE-05:WEST DISTRICT
TIS HAZARI COURTS:DELHI
Suit No. 775/10
Unique ID No.0240IC0370082006
Mrs. Vijaya Mukhi,
W/o Sh. J.M. Mukhi,
R/o A-23, Neeti Bagh,
New Delhi-49.
..........Plaintiff
Versus
Dr. (Mrs.) Minna S. Tandon, B.D.S.
E-29, South Extension Market,
New Delhi South Extension Part II,
(Near Kala Mandir),
New Delhi-48
Also at:
E-479, Greater Kailash, Part II,
New Delhi-48.
.............Defendant
Date of filing : 12.01.1996
Date on which order has been reserved : 22.02.2012
Date of pronouncement of Judgment : 29.02.2012
JUDGMENT
1 Plaintiff has filed a suit for Damages against the Defendant. Facts in brief, necessary for disposal of the suit, are as under:-
2 Plaintiff has claimed damages in the amount of Rs. 50,000/- for pain and Mrs.Vijaya Mukhi Vs Dr. Minna S. Tandon Page No.1 of 19 Suit No.775/10 suffering caused to her on account of professional negligence of the Defendant. Defendant is a dental surgeon and had been approached by the Plaintiff in the month of February, 1995 as Plaintiff was suffering from dental problems. Upon examination, Plaintiff was informed that her lower jaw tooth right side was causing problems and would require a Root Canal treatment (RCT). Plaintiff accepted the advice given by the Defendant after which, the Defendant commenced treatment on Plaintiff at her clinic in New Delhi in March, 1995. The Defendant gave Plaintiff RCT for lower jaw tooth right side and completed the same on 13/03/1995. On 14/03/1995, Plaintiff complained of pain and informed the Defendant about her condition on the telephone. To this, the Defendant assured the Plaintiff that her pain would subside in one or two days and asked her to visit her clinic in case, the pain did not subside. On 15/03/1995, the suffering of the Plaintiff increased beyond her tolerance and she called up at the Defendant's clinic, only to be told that the Defendant had gone out of station. Later that evening, the pain of the Plaintiff became intolerable and she was taken by her husband to the emergency department of Safdarjung Hospital, where she was prescribed anti biotics and pain killers. By 17/03/1995, whole face of Plaintiff got swelled up, but nothing could be done as it was a national holiday on that date. On 18/03/1995, Plaintiff saw one Dr. K. Dudeja at Safdarjang Hospital who advised her to increase the dose of anti-biotics. However, no X-ray could be taken as the face of the Plaintiff was badly swollen. On 20/03/1995, Plaintiff accompanied by her husband visited the clinic of the Defendant and narrated her plight to the doctor. It is claimed that the Defendant was apologetic and admitted that some infection was left behind at the time of the treatment. Defendant thereafter, proceeded to take out the filling, but was not able to take out the whole of it and therefore advised a different anti-biotic and pain killer to the Plaintiff and further asked her to visit the clinic again on 22/03/1995. On this day, the Defendant took out a further part of the filling from the tooth of the Plaintiff and advised her to continue the anti-biotics and pain killers. Pain of the Mrs.Vijaya Mukhi Vs Dr. Minna S. Tandon Page No.2 of 19 Suit No.775/10 Plaintiff did not suppress, but was subdued by taking pain killers on frequent basis. Plaintiff again visited the Defendant on 04/04/1995, by which time her pain had increased beyond limits and due to which she was very upset with the Defendant. In order to relieve the Plaintiff of her pain, the Defendant gave her an injection. However, she further proceeded to take out the tooth from the Plaintiff's jaw without any consent or instructions on her behalf. The Defendant thereafter, cleaned the tooth, filled it up and re-implanted the same in the Plaintiff's jaw. After this, the Defendant did not prescribe any anti-biotics, but advised the Plaintiff to continue with some other pain killers. Despite all this, Plaintiff continued to suffer pain and in fact her pain worsened severalfold. Plaintiff spoke to the Defendant on 05/04/1995 and was told that another period of 21 days would be required for the implant to heal. However, Plaintiff was given an appointment for 07/04/1995. On this date, Plaintiff was prescribed some more anti-biotics, but she continued to suffer constant agonizing pain for many more days.
3 Plaintiff claims that the Defendant was guilty of professional negligence and had caused grave excruciating pain and suffering to her. It was further claimed that the Root Canal Treatment was not performed in a competent manner, thereby leaving infection in the tooth of the Plaintiff. It was averred that the Defendant was under a duty to take precautions and also to alert the Plaintiff of the possibility of the infection, being left behind. Plaintiff stated that the Defendant failed to perform her basic duty of care towards her and breached ordinary norms of her profession. Plaintiff claimed that she suffered damages, both mental as well as physical due to the acts of the Defendant and thus, claimed damages from her in the amount of Rs. 50,000/-. A notice dated 25.09.1995 was sent by the Plaintiff to the Defendant, calling upon her to pay damages @ Rs. 50,000/-. A false and frivolous reply to the notice of the Plaintiff was received by her in which the Defendant had alleged that pain had been Mrs.Vijaya Mukhi Vs Dr. Minna S. Tandon Page No.3 of 19 Suit No.775/10 caused due to infection in the wisdom tooth of the Plaintiff which needed extraction. In the reply to the notice, it was further alleged that the Plaintiff had refused treatment of the wisdom tooth despite insistence of the Defendant, which had caused her the pain. The Defendant denied that she had acted negligently or had conducted herself in-derogation of the prescribed norms of her profession. Plaintiff claims that the averments made in the reply to her notice are false and frivolous. She further claims that due to the negligence of the Defendant, she had to avail of the services of another dental surgeon namely Dr. B.R.Chopra, who was of the opinion that the treatment given to the Plaintiff would have left some infection. It is averred that Dr. B.R.Chopra gave subsequent treatment to the Plaintiff including some fillings and fitting of bridge over her tooth. It is further averred that the doctor found nothing wrong with the Plaintiff's wisdom tooth and opined that no treatment was required for the same. Plaintiff claims that her continuous suffering and the opinion of Dr. B.R.Chopra made it clear that the Defendant was guilty of professional negligence. She claims that the Defendant is liable to pay an amount of Rs. 50,000/- to her and therefore, she has filed the present suit to claim the amount from her.
4 Suit of the Plaintiff has been contested to by the Defendant by filing a Written Statement vide which facts stated in the plaint have been vehemently denied and controverted with. It was claimed that the suit of the Plaintiff had been filed with the sole motive to harass, defame and humiliate the Defendant. It was further claimed that the Defendant had never acted negligently either professionally or otherwise and therefore, it was prayed that the suit be dismissed. On merits, it was submitted that Plaintiff had visited the clinic of the Defendant on 27/02/1995 as she was suffering from acute pain and swelling on the right side of her jaw and cheek. The Defendant had examined and X-rayed the Plaintiff and it was revealed that the Tooth No. 5 (Pre Molar) and Tooth No. 8 (Wisdom Tooth) were having caries. Defendant had thereafter, advised the Mrs.Vijaya Mukhi Vs Dr. Minna S. Tandon Page No.4 of 19 Suit No.775/10 Plaintiff to get both her teeth treated, but Plaintiff had insisted that treatment be given for Tooth No. 5 only. It is claimed that despite the repeated advise of the Defendant, Plaintiff did not consent for treatment of her Tooth No. 8 and therefore, the Defendant commenced with the treatment of Tooth No. 5 only. Plaintiff was treated on 27/02/1995, 03/03/1995 and 10/03/1995 and her treatment concluded on 13/03/1995. On 20/03/1995, Plaintiff alongwith her husband had visited the clinic of the Defendant and informed her about the pain suffered by her and the treatment given to her by Safdarjung Hospital. It is claimed that the Plaintiff had confessed that she had not been taking proper medicines as per prescriptions of the Defendant or doctors at Safdarjang Hospital. It is further claimed that Plaintiff had reposed confidence in the treatment given by the Defendant and had thereafter, continued treatment with her. On 22/03/1995, Plaintiff was advised to continue with the anti-biotics prescribed till her swelling was reduced. It was further claimed that Plaintiff was irregular in taking complete doses of anti-biotics and anti inflammatory medicines prescribed to her, due to which her swelling did not subside. On 29/03/1995, Plaintiff and her husband had again visited the Defendant's clinic, complaining of acute pain. The Defendant had again advised Plaintiff to either get both Tooth No. 5 and Tooth No. 8 treated simultaneously or get the Tooth No. 5 re- implanted. It is claimed that the Plaintiff as well as her husband had consented to re-implantation. Consequently, Tooth No. 5 was re-implanted on 29/03/1995 and Tooth No. 8 was treated with medicines. Since the Re-implantation of tooth was done, Plaintiff was advised to visit the Defendant after 21 days, but was also given appointments for regular check-up for 03/04/1995, 04/04/1995 and 05/04/1995. It is averred that pain or suffering, as alleged in the plaint was a natural consequence of the surgical procedure for which the Defendant could not be blamed. The Defendant denied that any injection was given to the Plaintiff on 05/04/1995 or that her tooth was removed without her instructions.
Mrs.Vijaya Mukhi Vs Dr. Minna S. Tandon Page No.5 of 19 Suit No.775/10 5 Defendant denied that she was guilty of professional negligence or that she had not performed the Root Canal Treatment in a competent manner. She denied that she was responsible for causing any infection or pain to the Plaintiff. She claimed that she had discharged her duty as a doctor with utmost care and in the most diligent manner. It was claimed that the Plaintiff had reposed confidence in the skill of the Defendant which was evident from the fact that she had visited the Defendant for further treatment on 21/08/1995 i.e. approximately three months from the date of her RCT. Defendant claimed that no infection was left behind at the time of Root Canal Treatment of tooth No.5. She further claimed that she was not liable for any damages, much less, damages in the amount of Rs. 50,000/-. She claimed that the suit of the Plaintiff was false and frivolous and thus, prayed that the same be dismissed with heavy costs.
6 No Replication to the Written Statement of the Defendant was filed by the Plaintiff.
7 On the basis of the pleadings of parties, following Issues were framed by my Ld. Predecessor on 10.02.1997 for determination in the suit:-
Issue No.A Whether the Defendant was negligent in treatment of Plaintiff?OPD Issue No.B Whether the Plaintiff is entitled to the Decree of Damages as claimed?OPP Issue No.C Relief
8 Plaintiff has examined herself as PW-1, Dr. Kamlesh Dudaja as PW-2, Sh. Rahul P. Dave as PW-3, Sh. Ram Lal as PW-4 and Sh. Jai Mangharam Mukhi as PW-5 in support of her case.
9 Defendant examined only herself as DW-1 in support of her case.
Mrs.Vijaya Mukhi Vs Dr. Minna S. Tandon Page No.6 of 19 Suit No.775/10 10 I have heard Ld. Counsels for parties at considerable length and have given my thoughtful consideration to the pleas put forth by them. My Issue -wise findings are as under:-
11 Issue No. A and B can be disposed off by way of a common finding. Therefore, the Issues are being taken up together.
12 The present suit for recovery of Damages has been instituted by the Plaintiff on the ground that the Defendant had been guilty of professional negligence and misconduct while conducting Root Canal Treatment upon her. The cause of action paragraph No. 26, of the plaint is as under:-
"26 The cause of action arose in favour of the Plaintiff and against the Defendant. In February 1995, when the Plaintiff was examined by the Defendant, whereafter the Defendant informed the Plaintiff that the pre-molar tooth required root canal treatment and undertook to perform the same; the cause of action also arose when the Defendant commenced the root canal treatment and completed the same on 13th March, 1995 but left some infection behind; the cause of action also arose on 14th March, 1995 when the Plaintiff suffered acute pain and suffering and informed the Defendant who assured the Plaintiff that the pain would subside; the cause of action also arose on 15 th March 1995, when the Plaintiff's pain instead of subsiding became intolerable and upon telephoning the Defendant's clinic and residence she was informed that the Defendant had gone out of station without informing the Plaintiff and without leaving any forwarding address; the cause of action also arose on 15th march, 1995 when the Plaintiff was forced to visit the emergency ward of Safdarjung Hospital and was prescribed antibiotics and pain killers; the cause of action continued thereafter when the Mrs.Vijaya Mukhi Vs Dr. Minna S. Tandon Page No.7 of 19 Suit No.775/10 Plaintiffs face swelled up with infection and intolerable pain; the cause of action arose on 20th march 1995 when the Plaintiff visited the Defendant upon her return and was informed that the pain was due to some infection having been left behind; the cause of action also arose on 22nd March 1995, when the Plaintiff visited and the Defendant who took out a part of the filling and gave the Plaintiff a further appointment; the cause of action also arose on 3rd April, 1995 when the Defendant again attempted to clear out more of the filling from the said tooth; the cause of action also arose on4th April, 1995, when the Defendant gave an injection to the Plaintiff and after washing it, and filling it re-implanted the same; the cause of action also arose on all days when the Plaintiff continued to suffer severe infection and pain and after effects of prolonged treatment with antibiotics caused by the negligence of the Defendant. The cause of action also arose on 20th September, 1995 when the Plaintiff called upon the Defendant to pay to her a sum of Rs.50,000/- as damages for the pain and suffering caused to her in the manner aforesaid; the cause of action also arose on 19th October , 1995 when the Defendant through her counsel sent a letter and malafide reply and failed to pay the Plaintiff the aforesaid amount of Rs.50,000/-; the cause of action is a continuing one and is continuing on each. ''
13 On going through the averments made in the plaint and the evidence led on record on behalf of the Plaintiff, it appears to me that damages have been claimed on account of infection , which had allegedly been left behind due to mishandling of the RCT by the Defendant and due to the re-implantation technique , carried out upon the premolar tooth of the Plaintiff on 04.04.1995. Plaintiff has no where pleaded that the procedures adopted in the root canal treatment were orthodox, defective or not up to her expectation. On the other hand, Defendant pleaded that the RCT was conducted as per due procedure but she claimed that infection had developed due to caries in the Mrs.Vijaya Mukhi Vs Dr. Minna S. Tandon Page No.8 of 19 Suit No.775/10 wisdom tooth of the Plaintiff (tooth No.8). Defendant had further claimed that she had advised the Plaintiff to get both her teeth (premolar tooth as well as wisdom tooth) treated simultaneously to get maximum relief but since the Plaintiff had refused to get treatment for the wisdom tooth (tooth No.8), the Defendant had gone ahead with the treatment of premolar tooth (tooth No.5) only. It was further averred that Plaintiff as well as her husband had later on consented for treatment of tooth No. 8 and re-implantation of the tooth No. 5 (premolar) , when Plaintiff had developed immense pain in her mouth, which could not be eased away by pain killers and anti biotics. Both parties had led evidence on the grounds raised in support of their respective pleadings . Before dealing with the evidence, I would like to discuss briefly the nature, character and scope of Medical Negligence as has been discussed in various cases. In a judgment reported as Kusum Sharma and Others Vs Batra Hospital and Medical Reasearch Centre and Others (Civil Appeal No.1385 of 2001 in the Hon'ble Supreme Court of India , while exercising civil appellate jurisdiction), the Apex Court has dealt with and laid down the necessary ingredients characterizing Medical Negligence. I have gone through the judgment and have relied upon the observations given therein.
14 According to the Halsbury Laws of England, Ed.4 , Vol 26 at pages 17 to 18 , the definition of Negligence and the duties owed to a patient are as under:-
"A person who holds himself out as ready to give medical (a) advice or treatment impliedly undertakes that he is possessed of skill and knowledge for the purpose. Such a person, whether he is a registered medical practitioner or not, who is consulted by a patient, owes him certain duties, namely a duty or care in deciding whether to undertake the case: a duty of care in Mrs.Vijaya Mukhi Vs Dr. Minna S. Tandon Page No.9 of 19 Suit No.775/10 deciding what treatment to give; and a duty of care in his administration of that treatment (b) A breach of any of these duties will support an action for negligence by the patient( c)."
15 Negligence is a conduct, an action or omission, which can be declared as negligent in relation to particular surrounding circumstances, either because it is in violation of a statute or because it is contrary to the dictates of common prudence that no careful person would have been guilty of it.
16 In a celebrated and oftenly cited judgment titled Bolam Vs Friern Hospital Management Committee (1957) 1 WLR 582 : (1957) 2 All ER 118 (Queen Bench's Division), Lord Justice, Mc Nair observed that a Doctor would not be guilty of negligence, if he has acted in accordance with a practice accepted as proper by a responsible body of medical men in that particular art.
17 Medical Negligence is a complicated subject and the liability of a Doctor depends upon the facts and circumstances brought on record. What is expected from a Medical Practitioner is to take due care and caution while giving treatment as per the established medical jurisprudence. It is well settled that it is sufficient if the Doctor exercises ordinary skills of a competent man exercising that particular art. A Doctor is not negligent , if he is acting in accordance with the practice accepted as proper, merely because there is an opinion which takes a contrary view. Meaning thereby , that where there are two different schools of medical thought and practice, both having recognition among practitioners , it is not negligent upon a Doctor to follow one in preference to the other.
18 In the case of Roe and Woolley Vs Minister of Health (1954) 2 QB 66 , Lord Justice Denning had observed that every surgical operation was attended by risks and one could not take the benefit of the operation without Mrs.Vijaya Mukhi Vs Dr. Minna S. Tandon Page No.10 of 19 Suit No.775/10 taking the risks. It was also observed that Doctors like the rest of us , learnt by experience. The court went on to observe the following:-
" We should be doing a disservice to the community at large if we were to impose liability on hospitals and Doctors for everything that happens to go wrong."
19 It is not necessary for every professional to possess the highest level of expertise in the branch in which he practices . A Surgeon does not and can not guarantee that the result of a surgery would be invariably beneficial, much less to the extent of 100% for the person operated upon. The only assurance which the professional can give is that he is possessed of the requisite skill and had practiced the same while performance of the tasks entrusted upon him with reasonable competence. The aforementioned opinion has been given by the Apex Court in its landmark judgment titled Jacob Mathew Vs State of Punjab and Another, (2005)6, SCC 1. The Hon'ble Court had observed so while dealing with the case of Negligence by professionals.
20 Reverting back to the facts of the present suit, it was the case of the Plaintiff that the root canal treatment was not carried out in a competent manner, thereby leaving infection in her mouth. It was her case that the Defendant had prescribed medicines but none of them could relieve her of the pain suffered by her. The pain kept on increasing and nothing was done about it. Defendant refuted these allegations and claimed that the infection was left behind due to caries in the wisdom tooth of the Plaintiff for which she had refused to get treatment. It was the plea of the Defendant that she had advised the Plaintiff to take treatment for both her teeth (tooth No. 5 and tooth No.8) simultaneously. However, Defendant failed to prove that the cause of infection were caries which had allegedly developed in the tooth No.8 of the Mrs.Vijaya Mukhi Vs Dr. Minna S. Tandon Page No.11 of 19 Suit No.775/10 Plaintiff. The evidence led on behalf of the Defendant did not show that the Plaintiff had been advised to take treatment for both her teeth. Defendant claimed that an x-ray of the jaw of the Plaintiff was taken which had clearly showed infection/caries in both the teeth. This x-ray did not come on record and even the Defendant failed to take steps to bring the same on the court file. Infact, perusal of file shows that the Defendant had issued a notice dated 31.01.2001 u/O 12 R 8 CPC asking the Plaintiff to produce only the original prescription slips , bills and invoices of the medicines prescribed to her and also a reply sent by the Defendant counsel to M/S Orr Dignam and Company on 19.10.1995 .
21 Defendant had also deposed that their was no swelling under the tooth no 8 on the day when tooth no 5 was permanently filled up.She further stated that she could not say as to whether puss had existed beneath tooth no 8 on the day when tooth no 5 was filled up.
22 A prescription slip , purportedly issued by the Defendant (document Ex. DW1/P1)was filed on her behalf in Defence evidence .Defendant claimed that the entries in the prescription slip /document Ex.DW1/P1 proved that the Plaintiff was advised simultaneous treatment for both tooth no 5 and tooth no 8 by her .This document was denied by the Plaintiff on the ground of being forged and fabricated .DW-1 deposed that she had taken 3 X-rays of the Plaintiff but admitted that she had mentioned about only one of them in the document Ex. DW1/P1. An argument was taken in opposition to the claim set out in the plaint by which the Defendant had claimed that Plaintiff was irregular in taking medicines and this had triggered the increase in her pain .However, Defendant admitted in her cross examination that she had not mentioned this fact in the prescription slip Ex.DW1/P1. Defendant also claimed that she had taken out an x- ray of the jaw of the Plaintiff on 20.3.95 but later on admitted that the Mrs.Vijaya Mukhi Vs Dr. Minna S. Tandon Page No.12 of 19 Suit No.775/10 prescription slip did not have any entry in that regard. Another prescription slip (Ex. PW1/4 ),issued by the Defendant was filed by the Plaintiff in her evidence .DW1 admitted that she had drawn the diagram of only tooth no 5 on the aforemetioned slip but was unable to affirm or deny if the slip was issued on 20.3.1995. On the other hand, Plaintiff suggested that the slip was issued on 20.3.1995 and the diagram was drawn to show that some infection was left behind in the accessory canal of the tooth no 5.
23 It is not denied that Plaintiff had approached the Defendant with excessive swelling on her face. It was further admitted that swelling had not subsided even after 20.3.1995. The Defendant had stated in her Examination in chief that she had taken an X-Ray of Tooth No.5 which showed that there was no infection in tooth treated by the Defendant. Interestingly, Defendant had claimed in her pleadings that no X-Ray of the Plaintiff could have been taken with a swollen face but she contradicted her own stand and failed to explain as to how the X-Ray could be taken when the Plaintiff approached her with a swollen face after 20.3.1995. Even otherwise, the x-ray was never brought on record and thus, remained unproved.
24 At this juncture, I wish to reflect an exigency, which is incidental to the procedure and treatment of infected root canals. Defendant had deposed that even after permanent filling , the patient could have pain in cases where the accessory canal of the tooth would still be infected because of invisible bacteria , which could not be detected by an x-ray. In this regard, it was further deposed that before filling the tooth permanently, Doctors insured that no puss was left behind so that the patient would have no pain in the tooth. For ensuring the same, a paper point was generally put inside the affected areas and if it would not get any puss back, then it was concluded that no puss was left behind. Sometimes the affected area was also tapped to see if the patient Mrs.Vijaya Mukhi Vs Dr. Minna S. Tandon Page No.13 of 19 Suit No.775/10 suffered from any pain and in case, he did not, the tooth would be permanently filled up. It is not denied that Plaintiff had complained of pain even after the RCT and thereafter, part of the filling was taken out from her tooth on 22.03.1995 and the pain was suppressed by pain killers. No occasion had arisen for the Defendant to take out the filling from the tooth No. 5 except for the reason that some infection would have been left behind which was causing pain and swelling to the Plaintiff. If the Plaintiff would have been suffering pain because of caries in tooth No.8 , the Defendant would not have taken out filling from tooth No. 5 and re-implant the same. Therefore,the unmistaken impression which one gathers after reading the evidence is that there was nothing wrong in tooth no 8 .Infact ,some Infection was left behind in tooth no 5 after the RCT ,which was the continuous source of excrutiating pain to the Plaintiff.
25 At this stage,I refer to excerpts from the topic "Endodontic failures"
and causes of infection with regard to root canal treatments, from the book Pathways of Pulp, Edition No.9 authored by Stephen Cohen and K.M.Hargreages. The authors are renowned professionals in the field of Endodontics. The following has been stated by them at Page No.919 of the book;
"Even when the highest standards and the most careful clinical procedures are followed, failures still occur because of anatomic complexity of the root canal system with regions that cannot be debrided and obturated with existing instruments, materials and techniques. In addition ,factors located beyond the root canal system within the inflame periapical tissue ,can interfere with post treatment healing of the lesion , including Mrs.Vijaya Mukhi Vs Dr. Minna S. Tandon Page No.14 of 19 Suit No.775/10 compromising host factors associated with certain systemic deceases such as diabetes".
26 Suffice to say , the root canal treatment is a semi surgical procedure and sometimes referred to as "blind surgery" as the infection is never visible to a naked eye .Re-occurrence of infection is highly reported in case of RCT and the life of a treated tooth is not more than 5-10 years. The treatment is a closed operation and it is commonplace that whole of the infection can never be drained out completely. Chances of Relapse are not uncommon or unusual .Because of the complex anatomy of the Root Canal System ,it is impossible to completely eliminate all bacteria .The treatment can never be guaranteed 100% Root treated teeth are always weaker and more susceptible to risk than the others but with continued oral hygiene and care and attention , the teeth can last for years .
27 I am in agreement with the Plaintiff who has been successful in proving that some infection was left behind in her tooth no 5 but one cannot ignore that Root Canal treatments are never 100 % successful .As has been discussed by me in the preceding paragraph ,instances where infection was left behind in the treated tooth are not unheard of . It is a part of endodontic failure and something which is beyond control of the doctors .In order to fasten liability upon the Defendant ,Plaintiff was required to show that the standard of care exercised by the Defendant was below the skill of an ordinary prudent person of that profession .Nothing has been proved in this regard .Infact ,Plaintiff argued that her continuous suffering after the RCT spoke for itself and showed that the treatment meted out was Negligent. It is trite to record that there was nothing flagrant or defective in the procedure adopted by the Defendant, who had carried out her duties with utmost skill and precision .Circumstances which were beyond her control cannot be made the basis of thrusting liability upon her .No damages Mrs.Vijaya Mukhi Vs Dr. Minna S. Tandon Page No.15 of 19 Suit No.775/10 on account of infection, left behind in tooth no.5 can be granted to the Plaintiff.
28 Plaintiff had also challenged the use of technique of "Re-implantation"
claiming that the procedure was never required and had infact never been consented to by her or by her husband at any point of time .She also claimed that she had subsequently consulted another doctor namely Dr. B.R Chopra ,who was of the opinion that that the technique was unheard of and was not required. However ,Plaintiff did not produce Dr.B.R. Chopra in the witness box to testify in support of her stand .She also admitted that she had never taken any opinion of Dr. B.R.Chopra in writing in respect of the treatment carried out by the Defendant .On the other hand ,Defendant claimed that she had taken consent from the Plaintiff and her husband before performing the procedure upon her. No consent ,either written or oral was proved to have been given by the Plaintiff in the case. The prescription slip Ex DW1/P1 also did not contain any entry showing consent on the part of the Plaintiff. It has been held by the Hon'ble Supreme Court of India in a Judgment reported as Samira Kohli vs Dr. Prabha Manchanda and Anr (reported as Civil Appeal No 1949 of 2004, judgement dated 16.01.08 ) that where the consent by a patient is for a particular operative surgery ,it cannot be treated as a consent for an unauthorized additional procedure involving removal of an organ ,only on the ground that the removal is beneficial to the patient or is likely to prevent some danger developing in future ,where there is no imminent danger to the life or health of the patient.
29 Re plantation ,sometimes referred to as Re implantation is the insertion of a tooth in its socket after its complete avulsion resulting from traumatic injury.The teeth ,most oftenly involved in Re-plantation are the anterior teeth of children following a variety of home accidents .Intentional Re-plantation should preferably be carried out by a two man team .One person should be given the responsibility of extraction and the other of carrying out the necessary Mrs.Vijaya Mukhi Vs Dr. Minna S. Tandon Page No.16 of 19 Suit No.775/10 endodontic treatment and replacing the tooth in its socket.
30 The ratio of Bolam's case postulates that it is enough for the Defendant to show that the standard of care and the skill attained was that of an ordinary competent medical practitioner exercising an ordinarily degree of professional skill .However ,a mere deviation from a recognized practice is not necessarily a clear evidence of negligence .In civil proceedings , a mere preponderance of probability is sufficient to make the doctor liable as opposed to a criminal case, which requires negligence to be established beyond reasonable doubt.
31 Some professionals opine that in few cases, where Root Canal Treatments go awry and re-infection occurs , tooth extraction may be required. However, in the text book namely "Oral and Maxilo Facial Surgery", Edition 4 ,authored by Vinod Kapoor, the contra indications for extraction of teeth in certain cases are enumerated . They are as under:-
"Many a times , there are conditions which do not allow extraction of a tooth even when it is required to be removed. These contra indications are local and systemic in nature.
Local Factors:-
(i) Acute infection with an uncontrolled
ceilulitis
(ii) Acute pericoronitis specially in relationto
third molar because of the fact that it has
direct access to spaces in the neck
(iii)Acute infections like gingivitis and
stomatitis
(iv)Extraction of maxillary premolars and
Mrs.Vijaya Mukhi Vs Dr. Minna S. Tandon Page No.17 of 19
Suit No.775/10
molars is contra indicated in acute
maxillary sinusitis
(v) Tooth embedded in malignant growth is not
extracted since it leaves behind a non
healing wound especially in patients who
are not undergoing any treatment for the
growth.
(vi) Extraction of tooth from irradiated jaw may
develop"Osteoradionecrosis" because of
low vascularity and hence is not generally
carried out."
32 It is therefore, clear that extraction of tooth No. 5 at the time of infection
should not have been undertaken by the Defendant. Even otherwise, consent to the re-implantation procedure was never accorded to by the Plaintiff.
33 However, I would also like to reflect at this moment that the conduct of the Defendant in extracting the tooth of the Plaintiff and re-implanting the same, was a measure on her part to sooth away the suffering of the Plaintiff. It was essentially a corrective measure to alleviate the pain in the jaw of the Plaintiff. Plaintiff had even admitted that she was retaining her tooth even after five years from the date of its re-implant.
34 In Hucks Vs Cole and Another (1968) 118 New LJ 469, Lord Denning observed that a medical practitioner would be liable only where his conduct fell below the standards of a reasonably competent practitioner in his field. Clearly, the Defendant was negligent and should not have performed extraction when the tooth of the Plaintiff was infected. An error of judgment may or may not be negligence but it depends upon the nature of the error. The procedure Mrs.Vijaya Mukhi Vs Dr. Minna S. Tandon Page No.18 of 19 Suit No.775/10 undertaken by the Defendant was erroneous but was undertaken with care and diligence , thereby resulting in no damage to the Plaintiff. The Supreme Court has held in Jacob Mathew's case that a Surgeon with shaky hands , under fear of legal action could never perform a successful operation. Doctors in complicated cases have to take chances , even if the success rate is low. It would not be conducive to the efficiency of the medical profession if no doctor could administer medicine without a halter around his neck. The Supreme Court has observed that it is our bounden duty and obligation that medical practitioners are not harassed or humiliated so that they can perform their duties without fear and apprehension. The interest and welfare of the patients is paramount but the medical professionals are also entitled to get protection so long as they perform their duties with reasonable skill and in the interest of the patients. In my considered view, no case for recovery of damages on account of negligence of the Defendant is made out. The Defendant can not be held guilty of medical negligence and, therefore, it is held that Plaintiff is not entitled for recovery of Damages as prayed for. Issues are decided against the Plaintiff.
Relief.
35 In view of my findings on the Issues framed, suit of the Plaintiff is Dismissed. Parties to bear their own costs. Let a Decree Sheet be prepared accordingly . File be consigned to Record Room.
Announced in the open court, Today on 29th February 2012.
(CHHAVI KAPOOR) CIVIL JUDGE(W) THC, Delhi/29.02.2012 Mrs.Vijaya Mukhi Vs Dr. Minna S. Tandon Page No.19 of 19