State Consumer Disputes Redressal Commission
Diane Green vs Dental Care on 2 December, 2013
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, UNION TERRITORY, CHANDIGARH Consumer Complaint No. 36 of 2013 Date of Institution 24.05.2013 Date of Decision 02.12.2013 Ms. Diane Green, Age: 53 years, 91B Norroy Road, Putney, London SW15 1 PH United Kingdom through Attorney, Gautam Khurana s/o Sh. Prem Khurana, Managing Partner, India Law Officers, D/19 Ground Floor, South Extension Part-I, New Delhi 110049. .Complainant. VERSUS 1. Advanced Dental Care Centre through its Proprietor Dr. Anshu Gupta r/o H.No.20, First Floor, Sector 18A, Chandigarh 160018, Punjab. 2. Dr. Anshu Gupta, Advanced Dental Care Centre r/o H.No.20, First Floor, Sector 18A, Chandigarh 160018, Punjab. 3. Dr. J. Nagaraj, Shivalik Hospital, Mohali, Sector 69, SAS Nagar, Mohali, Punjab. . Opposite Parties. BEFORE: JUSTICE SHAM SUNDER (RETD.), PRESIDENT SHRI DEV RAJ, MEMBER
Argued by:Ms. Geeta Gulati, Advocate for the complainant.
Sh. Narinder Sharma, Advocate for Ops No.1&2.
Sh.
Gaurav Bhardwaj, Advocate for Sh. Paras Money Goyal, Advocate for OP No.3.
PER DEV RAJ, MEMBER The brief facts of the case, as alleged by the complainant, are that in November 2011, she approached Opposite Party No.1, vide email to enquire about the availability of its services, for carrying out a specialized treatment called Zygoma implant treatment and 8 other Nobel Biocare implants (6 of the lower jaw and 2 of the upper jaw). It was stated that Opposite Party No.2 through email dated 17.11.2011, informed her, about the availability of all the special skills for carrying out the said treatment, and quoted the cost of treatment to be GBP 8000 or Rs.5,90,000/- (Annexure C-1). It was further stated that on 12.03.2012, the complainant came to Chandigarh, from London, and on consultation with Opposite Party No.2, she was asked to deposit GBP 10,000 instead of GBP 8,000 in advance, i.e. GBP 2000 for additional two implants in the upper jaw. It was further stated that the complainant paid the entire payment of GBP 10,000 in advance, to the Opposite Parties. It was further stated that on 06.04.2012, the surgery for Zygomatic implants and 10 other implants, was performed on the complainant, whereafter, one Mr. Ali Nehme, her family member, requested Opposite Party No.2, to carry out the x-ray of jaws for the purpose of showing the same, to the dental hygienist in London. It was further stated that the Opposite Party refused to carry out the x-ray, and it was told that there would be constant change, during the healing period, and after six months, the x-ray would not reflect the current status of the implants. It was further stated that accepting the advice of Opposite Party No.2, the complainant decided to get the x-ray done, at a later stage, at London, and left Chandigarh on 24.04.2012 for London.
2. It was further stated that on 02.05.2012, the complainant visited Dr. Professor Ian Needleman, Specialist in periodontics, and implant surgery at London, who after thorough examination of the transplants, prepared report (Annexure C-3), which stated ..the discrepancy in the bite is too large to correct without remaking the bridge... It was further stated that the specialist Dr.Guy McLellan also informed through report dated 7.12.2012 that the surgery carried out by the Opposite Parties, was done with extreme negligence, and carelessness, and the implants had not actually engaged the zygomatic bone, which was loose in the maxilla antrum.
3. It was further stated that the complainant immediately contacted Opposite Parties No.2 and 3 and discussed the problems, which she was facing post surgery, but Opposite Party No.3, assured that everything would be fine after a period of six months. It was further stated that due to continuous pain, the complainant obtained a second opinion on 22.05.2012 from Brighton Implant Clinic and Advance Dentistry, where the Doctor carried out a radiography test, which revealed that some of the dental implants, had failed and the zygomatic dental implants, had not been completed properly (Aannexure C-6). It was also revealed that there were failed implants, in the lower jaw, and the possibility of requiring more implants in future, due to present failure could not be ruled out. It was further stated that the said Specialist advised for removal of the zygomatic implants, which were at a wrong angle, thereby not ruling out the possibility of damaging the left eye sight of the complainant.
4. It was further stated that the complainant once again sent an email dated 13.5.2012, to Opposite Parties No.2 and 3, for the refund of money paid by her, for the surgery, which was negligently and carelessly performed in a substandard manner, causing great pain to her. It was further stated that upon insisting time and again, the Opposite Parties assured the refund but blatantly refused to give the same in writing. It was further stated that on 14.6.2012, the complainant visited Dr. Ashok Sethi, a leading implant specialist in London, who also confirmed what the previous specialist had observed.
5. It was further stated that the improper and ineffective medical treatment performed by the Opposite Parties, left the complainant, in immense physical pain and trauma. It was further stated that Opposite Party No.3, who actually performed the surgery, was required to resort to the requisite standards and procedure in performing the said surgery but he did not do so. It was further stated that the complainant served a legal notice on the Opposite Parties on 9.7.2012 (Annexure C-9), which was replied to, by them, vide reply dated 26.7.2012 (Annexure C-10). It was further stated that the complainant, also sent rejoinder notice dated 15.9.2012 (Annexure C-12) followed by addendum dated 14.02.2013 (Annexure C-12) requesting the Opposite Parties, to refund the amount, paid by her, alongwith compensation of Rs.25,00,000/-. According to the complainant, apart from the amount, paid to the Opposite Parties, she incurred GBP 19,479 for carrying out the same treatment all-over again, at London, (Annexure C-14). It was further stated that the aforesaid acts of omission and commission of the Opposite Parties amounted to deficiency in service, and unfair trade practice. When the grievance of the complainants was not redressed, left with no alternative, a complaint under Section 17 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), was filed, seeking the relief that the Opposite Parties be directed to refund a sum of Rs.8,20,000/-, alongwith interest @ 18% p.a.; Rs.25,00,000/- as compensation, towards financial strain, loss of employment & mental agony besides costs of litigation.
6. Opposite Parties No.1 and 2, in their joint reply, took up certain preliminary objections, to the effect, that the complaint was not maintainable, as it did not disclose any cause of action, and was filed with a malafide intention to malign the reputation of the Opposite Parties; that complicated questions of law and facts were involved in the complaint, which could not be adjudicated upon in summary proceedings; and that the complainant deliberately inflated and exaggerated the claim for compensation to invoke the jurisdiction of the Commission.
7. On merits, it was admitted that the complainant is a British National. It was stated that the answering Opposite Parties, were specialized, in dental implants treatment. It was further stated that the complainant was duly informed about the procedure, techniques, implications and complications, including the cost and duration of the treatment for two zygomatic implant and six bio-care implants. It was further stated that the complainant was assured the best treatment by highly qualified and well experienced dentist. It was further stated that the complainant agreed for two extra bio care implants to provide extra stability to the future bridges, which increased the total cost. It was admitted that on 6.4.2012, the surgery was performed on the complainant at Landmark Hospital, Chandigarh by Opposite Party No.3, after taking the written consent and informing the complainant, about the risks involved. It was further stated that the whole story of x-ray was fabricated by the complainant, only after the receipt of reply of the Opposite Parties, to the legal notice. It was further stated that the x-ray machine available at the clinic of Opposite Parties No.1 and 2, could only take small x-ray, pertaining to teeth whereas the x-ray of the whole mouth was to be conducted, and, thus, the complainant was prescribed to get it done from x-ray centre, which she did not go in for the same. It was further stated that the complainant even did not bother to inform them while leaving the hospital on her own, when she was operated upon under general anesthesia and was yet to recover from its effect post her operation. It was further stated that during the period 6.4.2012 to 24.04.2012, when the complainant left for London, she did not complain of any throbbing pain or difficulty to take bite. It was further stated that as evident from letter dated 2.5.2012, the complainant visited the dentist at London for her formal checkup without having any problem. It was denied that the surgery performed by Opposite Party No.2, at Opposite Parties No.1 and 2 hospital, was done with extreme negligence and carelessness and the implants had not actually engaged in the zygomatic bone. It was further stated that the x-ray revealed that zygomatic implants had settled down well in the zygomatic bone and, as such, the bridges were not required to be removed, as was done by the dentist in London. It was further stated that the report of Dr. Needleman was self contradictory as his sole objective was to remove the work done at Chandigarh by terming the dental implant as failed without waiting for the implants to settle down and to start the treatment afresh. It was further stated that had the implants been not attached/connected to the bridge, the implants would not have continued to maintain stability for such a long period. It was further stated that Opposite Party No.3, being well qualified and skilled dentist, provided treatment to the complainant, as per standard medical norms, and there was no negligence on the part of the answering Opposite Parties, or its staff, and team of doctors. It was further stated that as per instructions of Opposite Party No.3, the complainant was informed through one of her colleagues, that Opposite Party No.3 had assured to solve the problem, if any, faced by her. It was further stated that it was evident from the report of Dr. Ashok Sethi that the complainant was not satisfied with the appearance of the teeth, and all other allegations were afterthought. It was further stated that the complainant, on her own, with the ill advice of the doctors at London, who had their own vested interests, opted for the replacement of the implants without waiting for the same to settle down. It was further stated that neither there was any deficiency, in rendering service nor unfair trade practice, on the part of Opposite Parties No.1 and 2. The remaining averments, being wrong, were denied. In the end, prayer for dismissal of the complaint has been made.
8. Opposite Party No.3, in his written reply, took up certain preliminary objections, to the effect, that the complainant being not a resident of India, was not covered under the definition of consumer; that the Commission did not possess the pecuniary jurisdiction to entertain and try the complaint, as the cost of treatment of the complainant was below Rs.5 Lac where as she purposely inflated the relief claimed, in order to vest the jurisdiction in this Commission; that the complaint required leading of detailed and voluminous evidence, in order to arrive at a just decision, which could not be done by this Commission as the proceedings before it are summary in nature; and that the complainant did not implead United India Insurance Company Limited as a party, as Opposite Party No.3 had taken a professional indemnity cover, from Apex Ins. Consultant Limited, which in turn, had taken the cover from United India Insurance Company.
9. On merits, it was stated that Opposite Party No.3 is an Oral & Maxillofacial Surgeon and an eminent Implantologist. It was further stated that he did his masters degree in Oral & Maxillofacial Surgery in 1998, and also received many awards, which included the Best clinical paper presentation by the Association of Oral & Maxillofacial Surgeons of India. It was further stated that due to his keen interest, in the field of Oral, Dental & Aesthetic Surgery, he got himself trained from USA, Europe and Spain in the science and field of Dental Implants, which had been his bench mark for more than a decade now. It was further stated that, at present, Opposite Party No.3 was running Dentition, a Private Dental Practice with special emphasis to Dental Implants and Facial Aesthetic surgery. It was further stated that Opposite Party No3 was also a Professor in Clinical Oral Surgery, in Kurukshetra University and trains Post Graduates under his guidance besides a Fellow of the ICOI (International Congress of Oral Implantologist) USA, Fellow of the International Association of Oral & Maxillofacial Surgery (USA) and Diplomate of the ICOI (International Congress of Oral Implantologist) USA, a Life member of AOMSI, AOI, IAO, IDA and Executive Member (North Zone) Indian Academy of Osseo integration. It was further stated that Opposite Party No.3 is also the Director of DenTi, a Dental Education and Training Institute in which he conducted courses and lectures on Dental Implants & Oral Surgery. It was further stated that Opposite Party No.3 is a dentist specializing in the field of dentistry and dental implants, having experience of more than 14 years and is associated with various Hospitals, Educational Institutes including Dental Colleges.
10. It was further stated that Opposite Party No.2, approached Opposite Party No.3 for getting the treatment of the complainant and Opposite Party No.3 informed Opposite Party No.2, with regard to the possible treatment options, available for rehabilitation of teeth with dental implants. It was further stated that Opposite Party No.2 sent an e-mail to the complainant wherein, the available options, and the cost factor to be incurred by her for getting the treatment, were explained. It was further stated that the complainant was initially given two options, i.e. (a) normal dental implants with bone grafting and (b) zygoma implants to avoid bone grafting. It was further stated that the complainant was also educated by Opposite Party No.2 that the first procedure was more predictable, however, the same required multiple visits and the treatment time was six to eight months, whereas, in the second option, the implants could be inserted and immediate loading of teeth could be done, for which, the treatment period would be around four weeks. It was further stated that both the treatments were to be done with NOBLE BIO CARE implants, which were worldly accepted implants. It was further stated that the complainant opted for the second option as she could not spend six months in India and her frequent visits during the period of six months, could add to extra cost which were beyond her budget. It was further stated that the complainant was explained, in detail, the proposed treatment to be undertaken by her so much so the answering respondent also got prepared a format of the computer guided surgery with noble clinician (Software formulated by noble bio care) showing exactly as to how the implants would fit and covering each and every details of the surgery, to be done, upon the complainant. It was further stated that as the complainant was a diabetic and chronic smoker, she was required to atleast bring her sugar level to normal range and was also required to quit smoking for atleast a period of six months i.e. till the time the implants settled down. It was further stated that the complainant was also explained that on account of smoking, which was not at all conducive, for the said treatment, as it might create further complications, in the patients, the implants could also fail, as such, smoking was completely forbidden for the said treatment, as per literature [(Annexure R-3/4 (Colly)]. It was further stated that upon inspection the mouth of the complainant, it was observed that she was a chronic smoker and was still continuing with her habit of smoking. It was further stated that Opposite Party No.3 booked the operation theatre of Landmark Hospital for operating the complainant on 06.04.2012 (Annexure R-3/5). It was further stated that the operation was conducted upon the complainant to the satisfaction of Opposite Party No.3, on 06.04.2012 and she was advised that she shall be discharged by the Hospital authorities after one or two days, as she was operated under general anesthesia which required monitoring for one or two days keeping into mind her past diabetic history. It was further stated that Opposite Party No.3 charged a Rs.4.80 Lac for the treatment, which included the cost of Implants which was Rs. 2.5 Lacs besides the cost including the professional fee, visiting charges, operation charges, auxiliary charges etc. It was further stated that Opposite Party No.3, was shocked, when he received a telephone from the Landmark Hospital that the complainant had left the Hospital after creating ruckus over there possibly for smoking, vide discharge summary (Annexure R-3/6). It was further stated that after the complainant left the Hospital against medical advice, Opposite Party No.3, was quite concerned about her well being and informed Opposite Party No.2, who was not having her contact number. It was further stated that the complainant returned to the clinic of Opposite Party No.2, after one day, as informed by it. It was further stated that the complainant apologized for her misconduct, and joined Opposite Party No.2, for further treatment. It was further stated that Opposite Party No.3, had used the Zygomatic implants, which were worldly acceptable procedure of treatment and there were various International articles published upon the said treatment and, as such, it could be safely said that the treatment so given by Opposite Party No.3 was one of the best treatments having recognition world over. It was further stated that Opposite Party No.3 had conducted the treatment upon the complainant to his entire satisfaction and the implants were settling down well. It was further stated that the complainant was given the proper care and caution for the period, she stayed in India after her treatment. It was further stated that the complainant was repeatedly informed that the settling down of the implants with proper healing of the wounds, shall take at least a period of 6 months and she should not experiment with the implant, which shall weaken their support from bone and would not be good for the long term success of the implants. It was further stated that, in fact, after leaving India, the complainant never complained of any throbbing pain or difficulty to take bite, as she was quite comfortable and the implants were healing well. It was only after the complainant visited the alleged dentist, namely, Ian Needle man that she started making out a false claim of pain. Apart from the above pleadings, Opposite PartyNo.3 also reiterated the stand as taken by Opposite Parties No.1 and 2, in their written reply. It was further stated that, neither there was any deficiency, in rendering service nor unfair trade practice nor medical negligence, in providing treatment to the complainant, on the part of Opposite Party No.3. The remaining averments, being wrong, were denied. In the end, prayer for dismissal of the complaint has been made.
11. The complainant filed two separate replications, wherein she reiterated all the averments, contained in the complaint, and repudiated the same, contained in the written versions of the Opposite Parties.
12. The parties led evidence in support of their case.
13. We have gone through the evidence, record of the case, and the written submissions of the parties, carefully.
14. In the medical negligence cases, the law is now well settled. The Honble Supreme Court in para-94 of its judgment titled as Kusum Sharma and Ors. Vs. Batra Hospital and Medical Research Centre and Ors. I(2010) CPJ 29 (SC), observed as under:-
94.
On scrutiny of the leading cases of medical negligence both in our Country and other Countries specially United Kingdom, some basic principles emerge in dealing with the cases of medical negligence. While deciding whether the medical professional is guilty of medical negligence, the following well known principles must be kept in view:
I. Negligence is the breach of a duty exercised by omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do.
II.
Negligence is an essential ingredient of the offence. The negligence to be established by the prosecution must be culpable or gross and not the negligence merely based upon an error of judgment.
III.
The medical professional is expected to bring a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence judged in the light of the particular circumstances of each case is what the law requires.
IV.
A medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field.
V. In the realm of diagnosis and treatment there is scope for genuine difference of opinion and one professional doctor is clearly not negligent merely because his conclusion differs from that of other professional doctor.
VI.
The medical professional is often called upon to adopt a procedure which involves higher element of risk, but which he honestly believes as providing greater chances of success for the patient rather than a procedure involving lesser risk but higher chances of failure. Just because a professional looking to the gravity of illness has taken higher element of risk to redeem the patient out of his/her suffering which did not yield the desired result may not amount to negligence.
VII.
Negligence cannot be attributed to a doctor so long as he performs his duties with reasonable skill and competence. Merely because the doctor chooses one course of action in preference to the other one available, he would not be liable if the course of action chosen by him was acceptable to the medical profession.
VIII.
It would not be conducive to the efficiency of the medical profession if no Doctor could administer medicine without a halter round his neck.
IX.
It is our bounden duty and obligation of the civil society to ensure that the medical professionals are not unnecessary harassed or humiliated so that they can perform their professional duties without fear and apprehension.
X. The medical practitioners at times also have to be saved from such a class of complainants who use criminal process as a tool for pressurizing the medical professionals/hospitals particularly private hospitals or clinics for extracting uncalled for compensation. Such malicious proceedings deserve to be discarded against the medical practitioners.
XI.
The medical professionals are entitled to get protection so long as they perform their duties with reasonable skill and competence and in the interest of the patients. The interest and welfare of the patients have to be paramount for the medical professionals.
Their Lordships observed that the aforesaid principles, must be kept in view while deciding the cases of medical negligence. It is evident from the principle of law, laid down, in the aforesaid case, that, as long as, the Doctor performs his duties and exercises an ordinary degree of professional skill and competence, he/she cannot be held guilty of medical negligence. It is imperative that the Doctor must be able to perform his/her professional duties, with free mind.
15. In the case of Jacob Mathew (Dr.) Vs. State of Punjab & Anr.-III (2005) CPJ 9 (SC), it was held by the Apex Court, that a physician would not assure the patient of full recovery in every case. A surgeon cannot and does not guarantee that the result of the surgery would invariably be beneficial much less to the extent of 100% for the person operated upon. The only assurance which such a professional can give or can be understood to have given by implication is that he is possessed of the reasonable skill, in that branch of profession, which he is practicing and while undertaking the performance of the task entrusted to him, he would be exercising his skill, with reasonable competence.
16. In Laxman Balakrishan Joshi Vs. Trimbak Bapu Godbole and Anr.-AIR 1969 SC 128, the Apex Court laid down the criteria for determination of the professional duty of a medical man. The Honble Supreme Court held that a person who holds himself out ready to give medical advice, and treatment impliedly undertakes that he is possessed of skill and knowledge for the purpose. Such a person, when consulted by a patient, owes himself certain duties viz. a duty to care, in deciding whether, to undertake the case, in deciding what treatment to give or duty of care, in administration of that treatment.
17. The first question, which falls for consideration, is, as to whether Opposite Parties No.2 and 3 are professionally qualified and they exercised their duty with reasonable skill and competence. Dr. Anshu Gupta, Opposite Party No.2, in her duly sworn affidavit has submitted that she is a well qualified and specialized dentist. The complainant was given two options i.e. (i) normal dental implants with bone grafting and (ii) zyogoma implants to avoid bone grafting. Opposite Party No.2 advised the complainant that the first procedure was more predictable.
She further testified that the complainant opted for the second option as she could not spend six months in India and it was beyond her budget to frequently visit during this six months period. It was also testified by her that the complainant was advised not to meddle with the implants till the same settled down but despite advice, she (complainant) visited another dentist for second opinion.
18. Opposite Party No.3, in his duly sworn affidavit, has testified that he operated upon the complainant being a specialist in Oral & Maxillofacial Surgery. He has given brief gist of his academic qualifications and professional accomplishments, which are extracted below:-
Dr J Nagaraj is an Oral & Maxillofacial Surgeon and an eminent Implantologist. After completing his Bachelors degree in Dentistry, he went on to do his masters degree in Oral & Maxillofacial Surgery in 1998. During his masters he received many awards which included the Best clinical paper presentation by the Association of Oral & Maxillofacial Surgeons of India. With a wide experience and a keen interest in the field of Oral, Dental & Aesthetic Surgery, he trained himself from the USA, Europe and Spain in the science and field of Dental Implants which has been his bench mark for more than a decade now. At present he runs Dentition, a Private Dental Practice with special emphasis to Dental Implants and Facial Aesthetic surgery. He was also a Professor in Clinical Oral Surgery in the Kurukshetra University and trains Post Graduates under his guidance. He is a Fellow of the ICOI (International Congress of Oral Implantologist) USA, a Fellow of the International Association of Oral & Maxillofacial Surgery (USA) and Diplomate of the ICOI (International Congress of Oral Implantologist) USA. He is a Life member-AOMSI, Life member- AOI, Life member- IAO, Life member- IDA, Executive Member (North Zone) Indian Academy of Osseo integration. He is also the Director of DenTi, a Dental Education and Training Institute in which he conducts courses and lectures on Dental Implants & Oral Surgery.
19. Undoubtedly, Opposite Parties No.2 and 3 are professionally qualified. They were competent to administer the treatment and perform surgery. It is also clear from the averments, in the written statement of Opposite Party No.2 that the surgery for Zygomatic implants and 10 other implants, was performed on the complainant, where-after one Mr. Ali Nehme, family member of the complainant, requested her to carry out the x-ray of the jaws for the purpose of showing the same to the dental hygienist in London. Such a request was declined as there would have been constant change during the healing period, and, after six months the x-ray would not have reflected the current status of the implants.
The complainant had of her own choice taken treatment from the Opposite Parties, and this is not a case, where, someone was induced, by misrepresentation. In her affidavit also , she has not stated that Opposite Party No.2 and 3 did not possess the required skill or that they were not professionally competent and qualified. Thus, on this account, no deficiency is attributable to Opposite Party No.2 and 3.
20. The second question, which falls for consideration, is, as to whether, Opposite Parties No.2 and 3, committed any medical negligence, as a result whereof, the complainant suffered mental agony and physical harassment. It is clearly evident that the surgery was performed on 6.4.2012 and the complainant left Chandigarh for London on 24.4.2012. During those 20 days, the complainant did not complain of any discomfort, pain or problem in the treatment to the Opposite Parties. She left Chandigarh on 24.4.2012 for London and on 2.5.2012 visited Dr. Professor Ian Needleman, Specialist in periodontics and implant surgery at London, who in his report (Annexure C-3), stated ..the discrepancy in the bite is too large to correct without remaking the bridge... The averment of the complainant that Dr. Guy McLellan also informed through his report dated 7.12.2012 (Annexure C-4) that the surgery carried out by the Opposite Parties, was done with extreme negligence and carelessness is not factually correct, as there is no such observation, in the report aforesaid. As regards submission of the complainant that she obtained second opinion on 22.5.2012 from Brighton Implant Clinic and Advance Dentistry, which carried out a radiography test, the report no doubt revealed that some of the dental implants had failed and the zygomatic dental implants had not been completed properly, but the opinion did not point out any specific negligence attributable to the Opposite Parties. In fact, in this opinion, it was also stated, At this appointment, we recommend that your upper and lower bridges are removed and checked to see what the status is with the dental implantsI have advised that the lower jaw has some failed implants and possible infection, so far this reason would recommend that you start on the lower jaw. Thus, this report/opinion does not clearly reveal that the treatment imparted by the Opposite Parties, amounted to medical negligence. On 14.6.2012, the complainant visited Dr. Ashok Sethi, a leading implant specialist.
Except receipt, no report/opinion of Dr. Ashok Sethi, who reportedly confirmed, what the previous specialists had observed, has been brought in evidence. The Opposite Parties admitted that the surgery was performed on 6.4.2012 at Landmark Hospital, Chandigarh by Opposite Party No.3 after taking written consent of the complainant and informing her about the risks involved. Opposite Party No.2 has submitted that the complainant while leaving the hospital, on her own, when she was operated upon under general anesthesia, and was yet to recover from its effect after her operation, did not bother to inform the Opposite Parties. The Opposite Parties have categorically denied that there was any negligence and carelessness in the surgery. The fact remains that the complainant did not abide by the advice of Opposite Party No.2 & 3 and even without waiting for six months healing period, started taking opinions, without waiting for the implants to settle down.
21. Opposite Parties No.2 and 3 have produced their duly sworn affidavits, in support of their contentions. The complainant has failed to produce any cogent evidence, by way of duly sworn affidavits of Doctors/specialists, whom she consulted, in support of her contention, that the Opposite Parties were negligent and careless in performing surgery. In the absence of cogent evidence, and, for the following reasons, we are not inclined to accept the contentions, regarding medical negligence, raised by the complainant,:-
(i) The complainant was operated upon on 6.4.2012 and, she left Chandigarh on 24.4.2012 for London. From the date of surgery till 24.04.2012 or till 2.5.2012, when the complainant first went to a doctor for formal checkup, there was no complaint with regard to the surgery performed.
(ii) The complainant left the hospital when she was under influence of general anesthesia without informing the Opposite Parties. This averment of Opposite Parties has not been denied by the complainant.
(iii) Prof. Ian Needleman, to whom the complainant contacted on 2.5.2012 in his findings interalia observed, I found two full-arch implant supported bridges in the upper and lower jaws.
Healing around the implants seemed to be proceeding well as far as I could see. I could not detect any infection around the upper right implants that might account for the throbbing although it was not possible to fully examine the implants due to design of the bridge. Apparently the aforesaid opinion did not attribute any specific negligence to the Opposite Parties. The other observations were also an impression of Prof. Ian Needleman, but the same did not constitute any specific medical negligence of the Opposite Parties. The complainant was advised to consult the implant clinic in India.
(iv) Similarly, opinions of Brighton Implant Clinic and Advance Dentistry and Dr. Guy McLellan also do not in clear terms point out any specific negligence or carelessness attributable to the Opposite Parties.
(v) Though the complainant submitted that she contacted Dr. Ashok Sethi, a leading implant specialist in London, who reportedly confirmed what the previous specialists had observed, yet his report/opinion has not been produced in evidence and only receipt of fee (Annexure C-8) has been produced, which has no evidentiary value.
(vi) No cogent evidence by way of the affidavits of the doctors/specialists, who reportedly found some deficiency, in the treatment/surgery done by the Opposite Party No.2 and 3, have been filed.
22. In view of the above discussion.n, we are of the considered opinion, that the complainant has not produced any cogent and convincing evidence to establish medical negligence, on the part of the Opposite Parties. Consequently, the complainant has miserably failed to make out any case of medical negligence or deficiency, in rendering service, attributable to the Opposite Parties.
23. For the reasons recorded above, the complaint, being devoid of merit, is dismissed, with no order as to costs.
24. Certified Copies of this order be sent to the parties, free of charge.
25. The file be consigned to Record Room, after completion.
Pronounced.
2nd December, 2013.
[JUSTICE SHAM SUNDER (RETD.)] PRESIDENT [DEV RAJ] MEMBER Ad STATE COMMISSION (Consumer Complaint No.36 of 2013) Argued by:Ms. Geeta Gulati, Advocate for the complainant.
Sh. Narinder Sharma, Advocate for Ops No.1&2.
Sh.
Gaurav Bhardwaj, Advocate for Sh. Paras Money Goyal, Advocate for OP No.3.
Dated the 2nd day of December, 2013 ORDER During the pendency of the complaint, the complainant had moved an application under Section 13(3B) of the Consumer Protection Act, 1986 for grant of ad-interim order by directing the Opposite Parties to deposit a sum of Rs.33,20,000/-, in advance, with this Commission, to protect her interest.
2. Reply, to the aforesaid application, was filed by Opposite Parties No.1 and 2, wherein they objected to the grant of such an ad-interim relief, before the final outcome of the complaint.
3. Since, both the parties, submitted their written arguments, in the matter, and did not address oral arguments, and the case was reserved for final decision on 20.11.2013, the application becomes infructuous, at this stage, and the same is accordingly dismissed.
4. Vide our detailed order of the even date, recorded separately, this complaint, filed by the complainant, has been dismissed, with no order as to costs.
(DEV RAJ) MEMBER (JUSTICE SHAM SUNDER (RETD.)) PRESIDENT Ad