Date of filing:-26/11/2011.

Date of filing:-12/01/2018.

OFFICE OF THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM (COURT)

B A R G A R H

Consumer Complaint No.46 of 2011

Rabi Shankar Bhoi, S/o Late Antrayami Bhoi, aged 60(sixty) years, Occupation:- Cultivation, R/o. Ulba, Po. Gobindpur, P.S. Bargarh Sadar, Dist. Bargarh.

..... ..... ..... ..... Complainant.

• V e r s u s -

  1) Dr. S.K.Tripathy, B.D.S.,

  2) Dr. Mrs. R.Tripathy, B.D.S.,

  Both Dental Surgeons, Sai Dental Clinic, In front of Fire Station, N.H.6, Ward No.8, Khajurtikra, Bargarh, Po/Ps/Tahasil/Dist. Bargarh (Odisha).

..... ..... ..... Opposite Parties.

Counsel for the Parties:-

For the Complainant :- Sri M.K Satpathy, Advocate with other Advocates.

For the Opposite Party No.1(one):- Sri B.Panda, Advocate.

For the Opposite Party No.2(two):- Sri P.K.Mahapatra, Advocate with other Advocates.

-: P R E S E N T :-

Sri Krishna Prasad Mishra ..... ..... ..... ..... ..... P r e s i d e n t.

Sri Pradeep Kumar Dash ..... ..... ..... ..... ..... M e m b e r.

Ajanta Subhadarsinee ..... ..... ..... ..... ..... M e m b e r (W).

Dt.12/01/2018. -: J U D G E M E N T:-

Presented by Sri Pradeep Kumar Dash, Member(M):-

The Complaint pertains to deficiency in service enumerated under the provision of Consumer Protection Act-1986, the gist of the complaint is described hereunder.

The complaint contends that both the Opposite Parties are Dental Surgeons and are professional medical practitioners, running a private clinic in the name and style of Sai Dental Clinic in the Bargarh Town. The daughter of the Complainant namely Kalpana Bhoi was suffering from toothache and swelling of left face, visited the Opposite Parties for proper treatment of her ailment. The Opposite Parties without referring any pathological medical test and without ascertaining the actual cause of suffering of Kalpana Bhoi extracted her two teeth even after her protest and protest of her father. Thereafter, bleeding from the extracted tooth could not be stopped totally and the daughter of the Complainant was left, after one and half hour of the extraction of the teeth by the Opposite Parties without providing proper post treatment.

The Complaint further contends that as blood from the teeth extracted portion was oozing from time to time associated with pus formation, the Complainant and his daughter met with the Opposite Parties on the next day. The Opposite Parties without referring to any further investigation or for higher and specialize treatment left the daughter of the Complainant casually handing over a prescription only. The Complainant then finding no way out consulted reputated dental surgeon like Sri M.K.Agrawal and Sri Anup Kumar Satpathy for the treatment of her daughter. There also blood could not be stopped completely. Thereafter Kalpana was taken to Acharya Harihara Regional Cancer Center, Cuttack in short AHRCC and after serious medical and pathological test it could be ascertained that Kalpana was effected with positive cancer for cause of negligence and deficiency in rendering service by the Opposite Parties. Ultimately Kalpana was shifted to AIIMS Delhi for her better treatment but could not be saved her life in any way.

The Complaint further contends that the daughter of the Complainant had met with the premature death for the negligence and deficiency in medical service of the Opposite Parties for which the Opposite Parties are liable for the cause and concern of the Complainant. For such act of the Opposite Parties the Complainant not only suffered physically, mentally and monetarily but also was debarred to get the love and affection of her daughter and the untimely death of Kalpana dragged the entire family of the Complainant to a deep grief for which the Complainant lodged the complaint before the Forum and has assessed the compensation to a tune of Rs.5,00,000/-(Rupees five lakh)only on all count. The Complainant has also approached the Opposite Parties several time personally, requesting them to compensate for their cause, the Opposite Parties though initially agreed but finally deferred the matter on different pretext. The Complainant then sent pleader notice Dt.30/08/2011 to the Opposite Parties to compensate the Complainant for the negligence caused to her daughter in providing medical service. The Opposite Parties received the notice and sent a reply to the Complainant asking for a settlement on production of some documents and the Complainant along with his Advocate being equipped with all documents as desired by the Opposite Parties approached the Opposite Parties but the Opposite Parties categorically denied to entertain the claim of the Complainant for which the Complainant lodged the complaint before the Forum and has sought for redressal of the Forum to direct the Opposite Parties to pay a sum of Rs.5,00,000/-(Rupees five lakh)only as compensation along with litigation expenses for the negligence and deficiency of service by the Opposite Parties to the Complainant.

The Complainant in support of his contention relies upon the following documents:-

1. Xerox copy of Pleader notice Dt.30/08/2011.

2. Xerox copy of postal receipt.

3. Xerox copy of reply of pleader notice by the Opposite Parties on Dt.10/09/2011.

4. Xerox copy of prescription provided by Sai Dental Clinic, Bargarh Dt.21/01/2011 and Dt.28/01/2011.

5. Xerox copies of paper showing treatment of deceased by Doctors of Burla and Sambalpur.

6. Xerox copies of paper showing treatment of deceased in Cuttack.

7. Xerox copies of paper showing treatment of deceased in AIIMS, Delhi.

8. Xerox copy of OPD entry of Kalpana Bhoi Dt.01/03/2011 vide OPD Regd. No. H-54018/2011.

9. Xerox copy of Bone marrow/Hemogram requisition form of Kalpana Bhoi vide Regd. No. H-54018 Dt.04/03/2011.

Being noticed the Opposite Party No.1(one) and No.2(two) appeared before the Forum through their respective counsels and filed their version separately denying almost all the allegation of the Complaint.

The Opposite Parties in their version contends that the Complaint is not maintainable on account of non-joinder of necessary party, mis-joinder of parties and the Complainant is not a consumer as per the definition of the consumer in the Consumer Protection Act-1986. The Opposite Parties in their version have denied to the facts that both the Opposite Parties are to be sued for the cause of medical negligence and deficiency in rendering medical service to the patient(Consumer) and that the Opposite Parties without resorting to any pathological and medical test and ascertaining the rout cause of suffering of Kalpana had extracted her two teeth even after her protest and that the extraction of teeth followed with bleeding could not be stopped for longer time, even if blood oozing was regulated to some extent but could not be stopped totally and that in such condition without providing proper post treatment and service to Kalpana left her on the same day after one and half hour of extraction of her teeth and that a development of blood cancer is related with extraction of teeth and that due to oozing of blood from the teeth extracted portion of Kalpana from time to time associated with pus formation Kalpana and his father visited the Opposite Parties on the next day and the Opposite Parties instead of providing post treatment service simply left her causally writing a prescription with out resorting to any further investigation or higher treatment of Kalpana and that Kalpana had been treated under Dr.M.K.Agrawal and Dr. Anup Kumar Satpathy and that Complainant had undergone treatment at Cuttack and Delhi.

The Opposite Parties in their version have stated that deceased Kalpana Bhoi visited the clinic of the answering Opposite Parties on Dt.21/01/2011 with swelling in her left side face which was diagnosed with pericononitis, an infectious condition due to that her jaws were not in a condition to open and to treat her condition she was advised with appropriate medicines and advised for many test and that she was advised to come after three days of taking medicine. The deceased Kalpana Bhoi came after six days on Dt.26/01/2011 and consulted Opposite Party No.1(one) and from her case history it reveals that she was under the treatment of Dr. Anup Kumar Satpathy. Further all the three doctors have given similar line of treatment hence allegation of deficiency in service does not arise.

The Opposite Parties in their version further stated that the Complainant is making a false and frivolous case against the Opposite Parties knowing well that extraction of teeth is not associated with starting of blood cancer in a patient and the Complainant has cleverly not submitted the documents relating to diagnosis and treatment of cancer at the time of filing of the case to suit his interest and till date also he has not submitted the complete record violating the Court's order. The Complaint is filed with ulterior motive to tarnish the image of good doctors and to extract a huge amount from them and the aim of advocate notice is only to extract money. Further more the Opposite Parties in their version contends that the Complainant has changed several doctors with his sweet choice and if any one to be identified for mis treatment of the deceased Kalpana Bhoi than it is the Complainant and no one else. More over the matter in dispute involved complicated question of fact and law which can not be determine within the summary jurisdiction of the Forum.

The Opposite Parties prayed before the Forum to dismiss the complaint being devoid of any merit against them with appropriate cost.

Gone through the entire case record, pleadings of the parties, heard arguments of the parties, the forum found some probable issues likely to be decided in this case as follows :-

1. Is the Complaint maintainable before this Forum ?

2. Whether the Complainant is fair and clean hand in bringing the allegation of deficiency in service against the Opposite Parties ?

3. Whether the Complainant is successful in discharging the onus to prove the allegation of deficiency in service against the Opposite Parties/ Doctors ?

4. Whether the Opposite Parties are liable for deficiency in service ?

5. To what relief the Complainant in entitled for ?

Answering Issue No.1(one).

Admittedly the daughter of the Complainant deceased Kalpana Bhoi was treated by the Opposite Parties. The Opposite Parties also have not denied to have taken requisite fee for the treatment of the deceased, so also the clinic of the Opposite Parties/doctors is a private one and for treatment of the patients requisite fees supposed to be received by the Opposite Parties. Hence asper sec 2(1) d (II) of the Consumer Protection Act 1986 the Complainant is a Consumer, being the beneficiary of the deceased daughter Kalpana Bhoi. So far as other Parameters are concerned for maintainability of Complaint before the forum are (I) Pecuniary Jurisdiction (II) Territorial Jurisdiction (III) Not against any expressed or prohibited provision of law. Admittedly the Complaint is filed for Compensation of Rs.5,00,000/-(Rupees five lakh)only which is within the pecuniary Jurisdiction of the forum. Secondly both the Opposite Parties and their clinic is in the territorial Jurisdiction of the District forum of Bargarh. Lastly the service provided by the Opposite Parties to the Complainant is not one i.e. Contract of service. Hence from the above discussion it is evident that the Complaint is also well maintainable before the District Forum.

Answering Issue No.2(two):-

Admittedly the daughter of the Complainant deceased Kalpana Bhoi has been treated by the present Opposite Parties from Dt.21/01/2011 to Dt.30/01/2011 in Sai Dental Clinic, Bargarh. The deceased Kalpana Bhoi then being treated by Dr. Anup Sathpathy, Sambalpur from Dt.08/02/2011 to 27/02/2011, by Dr. M.K. Agrawal, Sambalpur on Dt. 15/02/2011, at SCB Medical College Cuttack on Dt.19/02/2011 and on Dt.07/05/2011, at Acharya Harihara Regional Cancer Centre, Cuttack from Dt. 30/04/2011 to Dt. 18/05/2011 and at AIIMS Delhi on Dt. 01/03/2011 and on Dt. 03/06/2011. It is evident from the medical papers of several hospitals that the Complainant had treated his daughter deceased Kalpana Bhoi under many doctors and very frequently had changed doctors like any body changing his/her daily garments. The daughter of the Complainant had been simultaneously under the treatment of Dr. M.K. Agrawal and Dr. Anup Satpathy on Dt. 15/02/2011 and so also at A.H.R.C.C., Cuttack and SCB Medical College Cuttack. So it is safely concluded that the deceased had not been followed the treatment of any particular doctor for any particular time. So it is incumbent on the part of the Forum to hold the guilt of the present Opposite Parties in treating the deceased Kalpana Bhoi. Hence from the above discussion it is crystal and clear that the Complainant is not fair and not clean hand in bringing the allegation of deficiency in service against the Opposite Parties.

Answering Issue No.3(three):-

The allegation of the Complaint is that Opposite Parties/Doctors extracted two teeth of the deceased Kalpana Bhoi inspite of her protest which resulted in development of cancer in the part of the teeth which have been extracted by the Opposite Parties. The methods of treatment of patients by doctors under medical ethics involve complex and scientific facts. It is obvious that by introducing pertinent expert evidence, the Complainant is expected to facilitate the Hon'ble Forum to understand and appreciate the Complex scientific facts and to arrive at a rational conclusion which is supported by many reported decisions of Hon'ble Supreme Court and Hon'ble National Commission. In the instant case also, extraction of teeth of the deceased Kalpana Bhoi by the Opposite Parties resulted in development of cancer in her teeth is one complex scientific facts which the Complainant was liable with burden of proof to prove the facts by adducing expert evidence or expert opinion which the Complainant has miserably failed to do so. The expert opinion could not be adduced or procured by the Complainant in this case to prove the facts that extraction of teeth may result in development of cancer. Hence from the above discussion it is conclusively established that the Complainant is totally unsuccessful in discharging the onus of proof to prove the allegation of deficiency in service against the Opposite Parties/Doctors.

Answering Issue No.4(four):-

When a doctor goes against the medical ethics in treating, diagnose the patient, the question of medical negligence arises, medical negligence can be attributed to a doctor only if he/she has not exercised reasonable degree of skill and care. A judge can find a doctor guilty only when it is proved that he has fallen short of standard of reasonable medical care. The fact and circumstances of the case before us show that the present Ops/doctors have attended the patient Kalpana Bhoi with due care, skill and diligence and for extraction of teeth which resulted in development of cancer in the teeth of the deceased is not proved by the Complainant by any expert evidence or opinion. Mere allegation of negligence will be no help to the Complainant. Thousands and lakhs of patients are being treated daily in hospitals of India, out of which many suffered injuries and also died and if the injuries sustained by the patients followed with legal consequence, thousands of doctors would be prosecuted daily. Consequently the doctors will be under survalent fear to profess and practice there profession to save the life of the people. In the process the medical practice will come into a halt and the society have to pay the price for it. In this light there are many decisions reported by the Hon'ble Supreme Court and Hon'ble National Commission. Allegation of medical negligence is a serious issue and it is for the person who sets up the case to prove negligence based on material on record or by way of evidence and in the case in hand, the Opposite Parties/Doctors have practiced in the accepted method of treatment in treating the deceased Kalpana Bhoi as per the medical ethics and as long as the doctor acts in a manner which is acceptable to the medical profession and he/she treat the patient with due care and skill, the doctor will not be guilty of negligence even if the patient does not survive or suffers a permanent ailment. Hence the Opposite Parties are not liable in any manner for the deficiency in rendering service to the Complainant.

Answering Issue No.5(five):-

In view of the explanation, analysis and interpretation, made in course of deciding earlier issue in this body of the Order the Forum comes to a conclusion that the complaint is having no merit in claiming the relief by the Complainant, hence the order follows:-

• • • • • • • • • • O R D E R -

Delving deep into the matter, thorough scanning of the documents, pleadings of the parties and memo of arguments of the respective parties, the Forum unanimously arrived at a decision that the Complaint is devoid of any merit. Hence the complaint is dismissed against the Opposite Parties. There is no award as to any cost.

Complaint disposed off accordingly.

Typed to my dictation

and corrected by me.

( Sri Pradeep Kumar Dash)

                 M e m b e r (M).

                       I agree,                                       I agree, 

(Sri Krishna Prasad Mishra)     ( Ajanta Subhadarsinee)

                 P r e s i d e n t.                        M e m b e r (W)