State Consumer Disputes Redressal Commission
Sichendra Kumar vs Dr. Kiran Kathpalia (Hod) on 14 February, 2013
IN THE STATE COMMISSION : DELHI (Constituted under Section 9 of the Consumer Protection Act, 1986) Date of Decision : 14.02.2013 First Appeal No.436/2009 (Arising out of the order dated 20.05.2009 passed by the District Consumer Dispute Redressal Forum(North), Tis Hazari, Delhi, in Complaint Case No.1143/2007) SHRI SICHENDRA KUMAR, .. Appellant S/O LATE SHRI KIRAN PAL SINGH, R/O B-113, GALI NO-5, HARDEV PURI, DELHI-110093 VERSUS 1. DR. KIRAN KATHPALIA (HOD) Respondent DENTAL SURGEON/ JUNIOR DENTAL STAFF, ARUNA ASAF ALI HOSPITAL, GNCT OF DELHI, RAJPUR ROAD, DELHI-54 2. MEDICAL SUPERINTENDENT ARUNA ASAF ALI HOSPITAL, GNCT OF DELHI, RAJPUR ROAD, DELHI-54 3. THE SECRETARY, (MINISTRY OF HEALTH) GNCT OF DELHI, NEW SECRETARIAT, I.P.ESTATE, NEW DELHI CORAM Justice Barkat Ali Zaidi (President) Salma Noor, Member
S.A.Siddiqui, Member(Judicial)
1. Whether reporters of local newspaper be allowed to see the judgment?
2. To be referred to the reporter or not?
S.A. Siddiqui, Member (Judicial) Judgment (1) This appeal has been filed against order dt.20.05.2009 passed by District Consumer DCDR Forum (North) Tiz Hazari Delhi dismissing the Complaint Case No.1143/2007. Brief facts leading to the filing of this appeal are discussed below:-
a) Appellant/complainant has alleged that he had severe pain in his right upper tooth and went to Guru Tegh Bhadur (GTB) Hospital Delhi, on 05.06.2005. The concerned Doctor at the Hospital advised RCT in respect of upper right side tooth no.7 and fixed 13.01.2006 for next visit. Mean while the appellant developed acute pain in the tooth and therefore rushed to Aruna Asaf Ali Hospital (GNCT) Rajpur Road, Delhi, OP no.2, on 02.09.2005. After obtaining OPD card, he visited Dr. Kiron Kathpalia (HOD) Dental Surgeon/Junior Dental Staff in room no.319 of Dental department. Firstly he was examined by a Junior Doctor working under OP no.1 who told the complainant/appellant that RCT was required for tooth no 7 right upper jaw and extraction of tooth no.8 in right lower jaw.
This fact was clearly endorsed in OPD card no.148126 dt.02.09.2005. He was also advised to take medicine for at least three days and fixed 07.09.2005 for the next visit. The appellant/complainant visited OP no.1. on 07.09.2005 who advised to repeat the medicine and visit again on 14.09.2005 but without getting any date marked/stamped on OPD card. The appellant again visited the hospital on 14.09.2005 at 19:30 am. At about 10:30am an injection was given in the gum of the appellant. At about 11:50 am Junior Doctor called the appellant for extraction of the tooth. It has been alleged that the OP no.1 without minutely going through the case history of the OPD card started removing the tooth. No X-ray of the effected tooth was done before undertaking operation. As per OPD card dt.02.09.2005 tooth no.8 in the right lower jaw was to be extracted and only RCT was to be performed in tooth no.7 of right upper jaw. Even the surgical apparatus used by OP no.1 in operation were not properly sterilized. During the process appellant felt uneasy and requested OP no.1 to suspend further procedure. However OP no.1 told the appellant not to worry. OP no.1 extracted the tooth by hammering the same forcibly and violently. OP no.1 filled the wound with cotton and told to remove the same after an hour. It has been alleged that soon after extraction of the tooth appellant/complainant became unconscious and regained consciousness after about 20-25 minutes when he reached at his residence he found that damaged tooth was still existing and wrong tooth was extracted by OP no.1. Thus tooth no.7 on the right upper jaw was removed instead of tooth no.8 in lower right jaw as mentioned in OPD card. Therefore the appellant visited OP no.1 on next day and apprised her of wrong extraction of tooth. OP no.1 however, replied that she had given best possible treatment. It was further alleged that due to wrong extraction of tooth the face of the appellant swelled which continued for 2-3 days. Under these circumstances the appellant visited GTB Hospital Dilshad Garden on 17.09.2005 for checkup. The X-ray done by the Doctor revealed that root of extracted tooth no.7 was still there and therefore advised for IOPA of tooth no.7 vide OPD card dt.17.09.2005.
Under these circumstances appellant served a legal notice dt.07.10.2005 to OP no.1 which was served upon the OPs.
OP no.2 sent a reply alongwith covering letter dt.25.10.2005 seeking certain information which was promptly provided. OP no.2 send another covering letter dt.20.04.2006 alongwith reply of OP no.1 in which OP no.1 made vague and evasive denials but conceded that tooth no.8 was to be extracted whereas RCT of another damaged tooth no.7 was to be done she maintained that she had extracted the same tooth as per advise by her on his first visit. Since the root of extracted tooth no.7 right upper jaw survived inside the gum, the adjacent teeth also got infected. Even the vision of the appellant got diminished/ impaired, his blood pressure also increased due to mental pain and agony, his court work was also adversely affected as he was a practicing advocate.
(2) The learned District Forum (North) Tiz Hazari Court Delhi however dismissed the complaint through judgment/order dt.20.05.2009 passed in case no.448/06. Aggrieved by dismissal of the complaint appellant has filed this appeal inter-alia on the following main ground besides the others.
(a). That the learned District Forum Misred/Misinterpreted the judgment of the Honble Supreme Court in Indian Medical Association V/S V.P.Santha III (1995 CPJ 1 SC). It is noteworthy that learned forum referred to Para 43 of the aforesaid judgment whereas relevant Para applicable was 55(10) of the aforesaid judgment. In aforesaid case the Honble Apex Court held services rendered at a Government hospital/health center/dispensary where services are rendered on payment of charges and also rendered free of charges to other persons availing such services would fall within the ambit of expression services as defined in Section 2(1)(0) of the Act. Free service would also be service and recipient a Consumer under the Act.
The learned District Forum committed a blunder when it concluded that the appellant was not consumer within the definition of Section 2(1)(D) of the CP Act 1986 as he had not paid any consideration to the opposite party. This view is no longer a good law in view of Para 55(10) of the SC judgment in Indian Medical Association V/S V.P.Santha case. The learned District Forum also erred in its finding that no direction raised in administration of local anesthesia to complainant amounted to consent given by the complainant to the extraction of his tooth. The appellant/patient put unflinching faith in the Doctor and in his/her wisdom and judgment. The learned District Forum failed to peruse the record carefully and therefore arrived at an erroneous conclusion. The learned District Forum failed to consider that in OPD card dt.02.09.2005 only RCT was suggested for tooth no.7 right upper jaw and extraction of tooth no.8 of lower right jaw which was grossly damaged was to be performed. OP no.1 in her reply to notice has admitted this fact and therefore extraction of tooth no.7 right upper jaw was gross medical negligence on the part of the OP no.1 and her junior staff. The learned Forum also failed to appreciate that had it been mandatory to give the OPD card Marked/Stamped at administrative counter, the OP no.1 might have instructed to produce the same before plunging into her teeth extraction.
(3). The OPs filed reply alleging that the present appeal was a gross abuse of the process of the law. As it has been filed on malafide intention to harass and humiliate the OPs and therefore the appeal was liable to be dismissed.
It was stated that as per the record, appellant had visited the GTB Hospital on 05.05.2009 with severe pain in tooth no.7 upper right jaw for which he was advised ext[cancelled]/RCT of 7 indicating that upper 7 was badly damaged, appointing another date of visit as on 13.01.2006 after about 7 months.
In the mean time the appellant visited Aruna Asaf Ali Hospital on 02.09.2005 due to severe pain in his tooth. A junior doctor attended appellant on 02.09.2005. Junior doctor working with OP no.2 advised him to take medicine and to report back again on 07.09.2005. On 07.09.2005 he was given medicines and was called again on 14.09.2005.
On 14.09.2005 he was given injection and one of his teeth was extracted by OP no.1. There after the complaint made wild allegations against the OP no.1 and 2 saying that a wrong tooth was extracted due to which he had to suffer a lot and ultimately had no option but to file complaint. As a matter of fact the appellant visited the Hospital on 02.09.2005 with acute pain in upper 7 (blood oosing out from the gum and had puscells). By the time appellant came to OP no.1, the condition of upper 7 had further deteriorated.
A junior doctor Jimmy Bhatnagar inspected the patient /appellant and on repeated request of the patient to save upper 7 agreed to perform RCT for upper 7 and advised extraction of lower 8 which was grossly decayed. Seeing the acute condition of the tooth medication was prescribed on 02.09.2005.
On 07.09.2005 complainant visited the OPs. It was found that infection of upper 7 is still persisting, medication was repeated.
Patient again came on 14.09.2005.
As routine practice in the hospital the patients are prepared and are injected anaesthesia prior to extraction. On 14.09.2005 the appellant did not submitted his OPD card. Since the appellant did not bring his OPD card, he got his work done and walked away. The entire confusion as to which tooth was to be extracted was entirely due to complainant failing to bring his OPD card.
(4). It was further submitted that since the appellant had acute pain/abscess in upper 7 and repeated medication was not giving desired relief to the patient it was decided with the concurrence of the appellant to extract the upper 7 instead of lower 8 which was badly carious but symptomatic. There are about 72-100 OPD patients daily therefore personal attention to each and every one by OP no.1 was practically impossible and the work is done collectively. In this case the fault lies on the part of the complainant who did not bring his OPD card on the day of extraction. He neither gave the OPD nor got himself registered in the hospital on central registration counter.
(5). It was also stated that OP no.1 had extracted the correct tooth with the consent and approval of the appellant/complainant and hospital has followed standard sterilization procedures which are needed for performing the extraction. It was mentioned that there was no deficiency of service on the part of the OP no1 and 2.
OP no.1 is a highly qualified and experienced doctor and posses professional efficiency. Therefore the judgment /order dated 20.05.2009 passed by learned District Forum was sound and legal and no interference is called for and the appeal deserves to be dismissed.
(6). During the course of hearing of the appeal expert opinion was elicited which was submitted on 12.12.2011 from Dr. Mahesh Verma Director-Principal of Maulana Azad Medical institute of Dental Science.
(7). We have heard learned counsel for both the sides and gone through the record. We have also gone through the rulings mentioned in grounds of appeal which were relied upon by the counsel of appellant. It was argued by the appellant that notings on OPD ticket dt.02.09.2005 of Aruna Asaf Ali Govt Hospital go to suggest that tooth no.8 right lower jaw was to be extracted and RCT of tooth no.7 right upper jaw was advised. However due to gross negligence and carelessness of OP no.1 upper right tooth no.7 (right 2nd molar) was extracted. The extraction was forceful and violent as a result of which the appellant had to face lot of pain and even swelling in the mouth which continued for 2-3 days. He apprised about the gross mistake done but she did not listen and merely said that she did her best. Appellant suffered a lot of mental pain and agony besides suffering financially. He was an advocate by profession which was badly affected. On the other hand it was argued on behalf of the respondent that appellant visited OP on 14.09.2005 without OPD card. Since the appellant/complainant was having severe pain and the medicines had failed to provide desired relief in pain and cure infection, extraction of the tooth was only option and the need of the hour which was done with the consent of the complainant and thus there was no negligence on the part of the OP.
Qualified, competent and experienced Dr. gave treatment according to his best judgment and ability and therefore she cannot be held liable for negligence. It was submitted that respondent did not commit any error, much less an error, which no doctor of reasonable competence will commit.
(8). The basic question which needs our careful consideration is whether respondent no. 1 Dr. Kiran Kathpalia was guilty of committing medical negligence. No doubt, OP no.1 was a very senior and experienced Doctor having worked in reputed hospitals, such as AIIMS, LNJP hospital, MAMC, SGMH & DHS. But this is no guarantee that medical negligence will not be committed by OP no.1.
It has to be seen if she took full care and caution required from a doctor of reasonable competence.
(9). Complainant/appellant has filed OPD card dt.02.09.2005 issued by OP no.2. It shows that tooth no.7 right upper and tooth no.8 right lower jaw were carious. RCT of no.7 and extraction of no.8 were advised. Medicines were prescribed for 5 days which were repeated on 07.09.2005.
The patient again went to the hospital on 14.09.2005 on which date tooth of the appellant (no.7 right upper) was extracted instead of tooth no.8 right lower. There is no entry in OPD card for 14.09.2005 suggesting that patient did not bring his OPD card on 14.09.2005. Complainant/appellant also filed OPD card of G.T.B. Hospital dt.05.05.2009 advising RCT of upper 7 which was cancelled and next date fixed was 13.01.2006, certain medicines were prescribed. Since long date was fixed in G.T.B. Hospital complainant/appellant started treatment in Aruna Asaf Ali Hospital in the meantime. It has been alleged by complainant/appellant that wrong tooth was negligently extracted by OP no.1 on 14.09.2005 although there was entry for 07.09.2005 and 21.09.2005 OPD card no.148126 dt.02.09.2005 of Aruna Asaf Ali Govt.
Hospital does advice extraction of lower right.8 ( right third molar) and RCT of upper right.7. It is therefore obvious that OP no.1 extracted tooth no.7 right jaw instead of no.8 right lower jaw which was advised in OPD card dt.02.09.2005. No amount of justification what so ever can absolve OP no.1 from the finding that she was guilty of medical negligence. She did not exercise necessary care and caution required from her as a doctor.
It is admitted case that confusion of extracting the right tooth was confounded due to the mistake of the complainant/appellant himself who failed to bring his OPD card on 14.09.2005. It can be argued that OP no.1 might have refused to undertake treatment on 14.09.2005 in absence of this OPD card.
But we are of the firm view that complainant/appellant was himself guilty of contributory negligence up to 50%.
(10). Next it has to be seen if services rendered by OP no.1 and OP No.2 are covered under the ambit of services U/S 2(1)(0) and complainant/appellant was a consumer U/S 2(1)(d) of the Act (11). It is not disputed that Aruna Asaf Ali Hospital is a Govt. run hospital and services are rendered to everyone free of charge. It was argued by the complainant/appellant that learned lower forum erred in relying upon only IMAs case and ignoring the decision of Gauri Shanker Padhi & others VS State of Orissa & orthers1(2007) CPJ, 167 (N.C) and other cases relied upon by appellant. The learned Forum wrongly relied upon Para 43 of I.M.A. case whereas relevant Para of judgment was Para 55(10).
(12.) Argument advanced by appellant was not convincing and the ld. Lower Forum was right in relying upon Para 43 of the aforesaid judgment.
The ruling of the Honble Supreme Court in Indian Medical Association VS V.P.Santha & others III (1195) CPJ (SC) has binding force and was relied upon by Honble National Commission in I (2007) CPJ 167 (NC). This case is not least helpful to appellant as appellant Gauri Shankar Podhi was a Govt. servant and was granted medical facilities as part of service condition & expenses in such case are borne by the Govt and medical bills of its employees are re-imbursed. The appellant in the present case was a practicing lawyer who received free medical services from OP no.1 and OP no.2. This case undoubtedly by falls within category (1) of Par 43 of the judgment in IMAS case.
In this case OP no.1 and OP no.2 rendered free medical services to everyone including the appellant. Therefore, Aruna Asaf Ali Hospital will not fall within the ambit of Services defined U/S 2(1)(0) of the Act and the appellant will not be a consumer as defined U/S 2(1)(d) of the Act.
(13). In view of the above legal position the complaint before the Distt. Consumer Forum was incompetent and it was rightly dismissed by impugned order dt.20.05.2009 by DCDRF (North) Tis Hazari Delhi.
ORDER Consequently appeal fails and is dismissed accordingly.
The cost is however, made easy.
Let a copy of this judgment be provided to the parties free of cost as per rule. A copy of the judgment be also send to DCDRF concerned for placing the same on original file. There after file by consigned to record room.
Announce on this day of February 14, 2013.
(Justice Barkat Ali Zaidi) President (Salma Noor) Member (S.A. Siddiqui) Member(Judicial) Fatima