Assam

Dibrugarh

CC/13/2005

SRI ROBIN GOGOI - Complainant(s)

Versus

DR. SUBHODEEP PAUL, B.D.S. - Opp.Party(s)

SRI SUDEB CH. GOSWAMI

21 Jun 2017

ORDER

The case of the complainant in brief is that on 19.05.05, while the complainant visited to the dental clinic of the OP as he was suffering from tooth-ace due to breaking of 28^th No. of upper tooth i.e. last tooth of the upper side  in order, the OP examined the complainant’s broken tooth and issued an advice slip as well as prescription prescribing some medicine to be taken by the complainant and also asked him to come on 28.05.05 for the purpose of extracting the said broken tooth. Accordingly, complainant visited to the chamber of the OP on 28.05.05 after complying the advice of the OP for the purpose of extracting the said  broken tooth. The OP extracted one tooth on 28.05.05 and applied stitch  but while extracting the tooth he applied heavy force and as a result of which profuse bleeding was there. However, the complainant could not realised which tooth was extracted by the OP at that time as he was under the influence of anaesthesia. Thereafter, the OP advised the complainant  to come after five days for removing the stitch and further check up and also advised to take some medicines. The OP did not disclose that due to his negligence, he extracted forcefully a wrong tooth and the complainant also could not realised that the broken tooth is still there in its own position whereas, the OP extracted a good tooth due to his negligence. The complainant did not feel any pain on his teeth as anaesthesia was applied on both extracted and the broken tooth as well as administered medicine. Subsequently, he could realised that the broken tooth still remains in its own position and the OP did nothing of the said tooth. After the fifth day when the complainant visited to the clinic of the OP and as soon as he entered into the chamber, the OP snatched away the advice slip from the hand of the complainant and put an arithmetical figure of 28^th in two places on the advice slip and also put two tick marks on the figure of 27^th in order to save himself and to prove that the complainant had complained of two teeth numbering the position as 27 and 28 and as if the OP extracted tooth No.27 only and kept pending tooth No.28 to be extracted later on. However, the OP forgotten that he wrote in the top of advice slip to indicate that only one tooth was decayed. Due to wrongful activities of the OP and his medical negligence for hurriedness with lack of dedication to make maximum gain, the complainant had to loss a valuable tooth and suffered both physical and mental pain. The above wrongful activities of the OP the complainant suffered huge damage, mental agony and harassment which amount to deficiency in service on the part of OP for which the complainant claim Rs.50,000/- as compensation for loss of a sound and a good tooth as well as mental and physical suffering, he also claimed reimbursement of expenses incurred for the treatment and special charges and other compensation as the Forum may deem fit.

 

After registering the case notice was issued to the OP to which, he filed written statement stating inter alia that the case is not maintainable in law as well as in fact. The OP stated that the complainant was having problem of two teeth as No.27 and 28 and clearly mention about the teeth ache of tooth No.27. The chief complaint was written in patient’s own languages and it was written that the patient was having pain on the upper left back tooth not the last tooth. Further, it is stated that the complainant wanted to extract his damaged tooth and as such, OP did his best to extract the damage tooth only and the question of severe bleeding never arose. Some bleeding sometimes occur for which the best medical treatment is to stitch the portion and to remove the stitches after few days, this is normally done in each and every case. The OP has done the best treatment according the request of the complainant and is no way he has done any negligence and that part had not extracted any good tooth of the complainant as alleged. The OP further stated that mater of broken tooth can be sensuated by touching by tongue within a minute and waiting for five days to go do not necessary. Besides, the complainant could have went easily to other Doctors and verified the tooth within these five days but he did not do. The allegation of snatching way the advice slip and putting another figure are all false and not at all believable. The claim made by the complainant is not for negligence but it was made with malafide intention to extract the compensation only. There was no negligence on the part of the OP and therefore, there was no deficiency in service for which the complaint filed by the complainant is liable to be dismissed.

 

    In this case the complainant gave evidence by swearing affidavit and exhibited 4 (four) documents. On the other hand, OP examined himself by swearing affidavit and exhibited no documents to rebut the case of the complainant.

 

 DISCUSSION, DECISION AND REASONS THEREOF:

 

Upon going through the evidence, documentary evidence and written argument advanced by the parties it is found that the complainant on 19-05-05 visited to the dental clinic of the OP as he was suffering from toothace with a broken tooth situated 28^th position i.e. last tooth of the upper side and the OP accordingly after examination prescribed some medicine in a prescription as well as advice slip asking him to come again on 28-05-05 for the purpose of extracting the said broken tooth. Accordingly, on 28-05-05 the complainant went to the dental clinic of the OP who extracted the tooth of the complainant, but it is pertinent to mention here that the allegation of the complainant is that the OP instead of extracting the broken tooth in which he was suffering pain, extracted another tooth situated in the position of 27^th on the upper side which was a healthy tooth and thereby the OP has committed negligence of service. The complainant on that day could not realise, whether the exact tooth which was paining was extracted or not, but he had an apprehension as there was heavy bleeding, there might be some wrong. After extracting the tooth the OP applied stitch and advised him to come after five days.  On the fifth day whenever the complainant entered into the chamber of the OP, the OP snatched away the advice slip from him and put an arithmetical figure of 28 in two  places of the advice slip and also put two tick marks on the figure of 27 in order to save himself and to prove that as if two teeth numbering position as 27 and 28 were to be treated and it has shown that the OP had extracted tooth No.27 only on that day, keeping pending tooth No.28 to be extracted  later on. The complainant stretched on the another fact that though the OP mentioned about tooth No.27 and 28 whereas in the top of the advice slip he wrote “tooth” which is a singular number showing the complainant of one tooth only.

 

From the above evidence of the complainant it appears to mean that on 19.05.05 while the complainant complained about his pain on tooth No.28 but hurriedly and negligently he wrote tooth No.27 and accordingly, on 28.05.05 extracted the 27^th No. of tooth instead of 28^th which caused profuse bleeding and subsequently on the date on which the complainant visited to the chamber and wrote the figure 28 twice in the advice slip put tick mark on 27^th tooth just to hide his negligence.

 

So far consumer cases are concerned, we are aware that it is a civil nature case or quasi civil and depends entirely on the documents and evidence. While going through the evidence i.e. Ext-1 the advice slip cum prescription it reveals that in the said Ext-1 it was written on the examination column tender 27, 28 and the treatment plan column extract of 27,28 and in the column treatment done on 28.09.05, 27^th extracted. The whole prescription cum advice slip i.e. Ext-1 was written in the handwriting of the OP and there is no any doubt about this and accordingly it is found that there is no discrepancies in Ext-1 to show that the complainant visited to the dental clinic of OP for examination of one tooth i.e. only 28 though alleged to be written only one tooth on the day of examination.

 

The complainant tired to prove his case only by stating that the tooth singular number was used at the top of the advice slip which clearly shows that the complainant went with the complaint of single tooth for which the OP wrote “tooth” otherwise if the complainant would have  visited for the pain of two teeth he would have naturally written the plural number i.e. “teeth”. However, this is not sufficient to prove the case of the complainant. The OP may in hurriedly used the word “tooth” in place of “teeth”. However, in the advice slip cum prescription it has been mentioned about the two teeth i.e. 27 and 28 and on 28.05.05 tooth No.27 of upper in order was extracted keeping 28 to be extracted later on and there is no other proof.

 

The complainant stated that after extracting the tooth he was asked to come after five days to cut the stitch and accordingly while he visited to the dental clinic of the OP he was surprised to find that the employee of the OP without any approach seeing him asked to enter in the chamber of the OP as it was the instruction of the OP  to sent him directly inside the chamber and as soon as he entered into the chamber the OP snatched away the advice slip from him and wrote figure 28^th  twice in the advice slip. This fact is not admissible since there is no evidentiary proof. The complainant failed to prove by adducing evidence about the above fact that as soon as he arrived in the clinic he was directly allowed to enter into the chamber. Besides, the complainant at least could have kept one photocopy of the original of Advice Slip Ext-1 before coming to the doctor’s chamber for cutting stitch  which would have been a good proof that the OP later on entered the figure No.28^th. However, the allegation of snatching away the advice slip and pulling another figure are all false and not believable since absence of any authenticate evidence as well as  it is not believable that a doctor who is having good reputation in the profession not only in Assam even outside Assam.

 

The complainant stated that he could feel that the OP extracted a healthy and good tooth when he found that the OP applied maximum force for extracting the tooth and there was a profuse bleeding. The OP on the other hand stated that he did his best to extract the damaged tooth and so far severe bleeding is concerned, sometime severe bleeding may occur for which the best medical treatment is to stitch the portion and to remove the stitch after few days which the OP did. By bleeding no doubt it cannot be ascertained that the OP negligently extracted wrong tooth.

 

It is pertinent to mention here that the tooth of the complainant was extracted on 28.05.05 after few days of extracting the tooth he could realise that the OP instead of extracting the tooth which was paining extracted a healthy and good tooth. The question of realising after few days cannot be arise as the complainant could have sensuated immediately after extracting the wrong tooth by touching the same by his tongue within a minute. Meanwhile, after extracting the tooth he got five days to verify whether the OP extract a good and healthy tooth instead of tooth which was paining he could have visited to some other expert in between the five days and could have obtained opinion from the medical expert that instead of extracting a bad tooth the OP extracted a good and healthy tooth. But complainant failed to obtain any expert’s opinion to prove his case.

 

It has been held in Martin F D’Souza v. Md. Isfak (2009) 3 SCC where it has been held –

“Medical practitioner is not liable to be held negligent simply because things went wrong from mischiefs or misadventure or through an error of judgment in choosing one reasonable course of treatment in preference to another. He would be liable only where his conduct fell below that of the standards of a reasonable competent practitioner in his field. For instance he would be liable if he leave a surgical gauze inside the patient after an operation vide Achutrad Haribhau Khodwa and others v. State of Maharashtra and others AIR 1996 SC 2377 or operation on wrong part of the body and he would be also criminally liable if he operates on someone for removing an organ for illlegitimate trade.”

 

From the above it appears that  the OP would have been liable for extract a separate healthy and good tooth had it been proved by the complainant.

 

It is settled law that for negligent act or omission an expert’s opinion be obtained from an independent and competent medical officer, preferably from a doctor in government service, qualified  in that branch of medical practice who can normally be expected to give an important opinion.  Whereas, in the instant case, complainant has failed to give any such expert’s opinion.  In absence of the expert’s opinion documents which the complainant produced is not sufficient to establish the case of the complainant.

                  

          A broad general principles of medical negligence have been led down in the Hon’ble Supreme Court judgment in Jacob Metho v. State of Punjab and others (2005) 6 SCC where it has been observed that judges are not expert in Medical Science, rather they are laymen.  This itself often make it someone difficult for   them to decide the case relating to medical negligence. As such, judges have usually to rely on testimonies of other doctors.

         

          In Martin F D’Souza v. Md. Isfak it has been held -

 

“54. In para 52 of Jacob Mathew’s case the Supreme Court realising that the doctors have to be protected from frivolous complaints of medical negligence, has laid down certain rules in this connection:

1. A private complaint should not be entertained unless the complainant has produced prima facie evidence before the court in the form of a credible opinion given by another competent doctor to support the charge of rashness or negligence on the part of the accused doctor.”

 

So far the present case is concerned, the complainant has not led any expert evidence to controvert the case of the centre that the OP who conduct the operation was a highly qualified and that the extraction of tooth was done with due care and delinquency. There is no any evidence to show the failure of the OP was out of any negligence.

 

In view of the above, this Forum has come to an unassailable conclusion that the complainant has failed to prove regarding the deficiency of service on the part of OP.

 

            Hence, the case of the complainant is dismissed in devoid of merit. Parties shall bear their own cost.