*A judgment that brought back smile on the Dentist’s face*. Adv. ROHiT ERANDE. ©
*A
judgment that brought back smile on the Dentist’s face*.
*A
patient may not favourably respond to a treatment given by a doctor, does not lead to a conclusion that the Doctor acted negligently* !
Adv. ROHiT ERANDE.
Case Details : IN THE DELHI STATE CONSUMER
DISPUTES
REDRESSAL COMMISSION
FIRST APPEAL NO.-238/2013
MS. DIVYA CHAUHAN, DELHI (Complainant)
V/s. DR. S.P. AGGARWAL
(Op.)
HON’BLE JUSTICE
SANGITA DHINGRA SEHGAL (PRESIDENT) HON’BLE
MS. PINKI, MEMBER
(JUDICIAL)
1. “1. 0n
30.09.2000, the Complainant alongwith her parents went to OP's clinic
with a complaint of pain in one of her teeth. But the
OP, after examining her tooth also observed that the front upper teeth of the Complainant protruding
outward.
2. The parents
of the Complainant also disclosed that she was having a history of polyp (growth in nose) and the history
of its complication causing recurrent
cold and mouth breathing. Whereupon, OP offered
to provide an orthodontic treatment that would
correct the protruding of her teeth and improve her
jaw /teeth lying etc. and would also
improved overall her facial look. OP offered the said treatment for a consideration of Rs.19,000/- payable
in installment and other expenses
payable extra.
3. It was alleged that OP however, avoided giving the detail of the treatment in writing. However, the Complainant agreed to take such
treatment and whereupon, OP
instructed one of his assistant Doctors to do the filing of the tooth of Complainant and to give a
quotation of his fee, plan of payments, terms and other expenses for such treatment. Whereupon, the said Assistant Doctors done the treatment of the filling and also furnished the quotation
of the fee/expenses and other terms of treatment, as mentioned in Para No.2 of the complaint
( and annexed as Annexure-1).
4. On January, 2001 the Complainant paid a sum of Rs.10,000/- in cash but OP again refused to issue any proper receipt for
it. However, OP admitted the receipt
of payment by making writing
in a symbolic manner in his own hand writing,
on a photocopy of the prescription
5. Thereafter,
the OP started her orthodontic treatment. Her teeth, jaw etc. was fully examined. A clay impression of her upper and lower jaws was taken so as to keep a record of the pretreatment impression
of it and also to prepare its braces
etc. The concerned staff issued an appointment card to the Complainant but, retained the impression on the pretext that the same would be returned to the
Complainant on completion of her
treatment. It is further stated that throughout the period of her such treatment, the Complainant did
not suffer from any polyp growth or
from any of its complication like recurrent cold or mouth breathing
and religiously followed
all the instructions of the OP including
instructions of breathing
exercise etc.
6. IT was alleged that the said treatment could not make any improvement in her jaw/teeth lining or to her facial look, rather,
it distorted her teeth/jaw lining
which also led to a distortion of her facial bone and worsening of facial look. In as much as, her upper and lower jaw started striking at each other and
one of her two front teeth again
started protruding outward and her efforts to keep her mouth close led to a pain in her upper teeth. Thereafter, OP stopped recording her visits to his clinic
on the appointment card and also
did not return the mould of her, taken on 02.01.2001. However, she continued his further treatment by advising her to put up on her teeth/gums the plate designed
by him. In December, 2003, OP advised
her for wearing of said plate continuously for 24 hours a day. But it
also did not help her in anyway and rather,
led her to other complication. Whereupon, the
OP started avoiding Complainant on one pretext or the other and left her to be attended only by his
assistant and did not give any record
of the treatment prescribed.
7. However, on 04.09.2004, on the insistence of
the Complainant, OP lifted a piece
of small plain paper and forced her to recall
and write what was advised her. But the Complainant could not record the same and whereupon, OP himself scribeled
the treatment which is given
in Para No.17 of the complaint. OP also scribeled few lines on the slip of a plain paper when the Complainant
went for revise of her treatment, which is given in para No. 18 of the complaint. When the Complainant could not find any help in wearing the plate as of
and on her teeth and on every twelve
hours, so she asked for the return
of the mould so that they
she approach any other orthodontist for her further treatment. And, whereupon
the OP returned the initial
impression /mould of her jaws.
8. The Complainant alleged
that she had paid more than Rs.2,10,000/- and made more than 50 visit
to the clinic of the OP for having such treatment
but it could not improve anything rather
caused irreparable damages and injury to her teeth and jaw lining and, therefore, OP was guilty of unfair trade
practice and professional misconduct.
Hence, she brought this complaint before
this Forum seeking direction against the OP to return the amount of Rs.19,000/- paid by her
alongwith a compensation of Rs.15,21,000/-.”
9. The District Commission after taking into consideration the material available on record passed the order dated
11.01.2013, whereby it dismissed the
complaint and hence this Appeal.
10.
Held :
a.
The first question for consideration before us is whether the District
Commission has failed to dealt the consumer complaint on merits and decide
it solely upon the ground of limitation.
b.
The state Commission
observed that we find that the
District Commission while dealing with the question of limitation has gone through the documents available
on record and hold that “Even on 15.09.2004, she got the treatment from
OP and, therefore, last date of cause of
action was 15.09.2004 and this complaint was filed on 11.09.2006 within the
period of two year and, hence, it cannot be said that it was a time
barred complaint.”
c. The next question for consideration before the State commission was whether the Doctor acted negligently
and he was deficient in his
services ?
d. To resolve the issue as to whether there exists any medical
negligence on the part of
Respondent in the present case, we deem it appropriate to refer to the case of this Commission wherein, this
Commission has in detail discussed the
scope and extent of Negligence with respect to Medical Professionals in CC- 324/2013, titled Seema
Garg & Anr. vs. Superintendent, Manohar Lohia
Hospital & Anr. decided on 31.01.2022, where in the reliance was placed on the celebrated
judgment of Hon. Supreme court in the case of Kusum Sharma and Ors. vs. Batra Hospital and Medical Research
Centre and Ors. reported at (2010) 3 SCC 480, and the crux is that
“In cases wherein the allegations are
levelled against the Medical Professionals,
negligence is an essential ingredient for the offence, which is basically the breach of a duty exercised by omission to
do something which a reasonable man
would do or would abstain from doing.
However, negligence cannot be attributed to a doctor so long as he performs his duties with reasonable
skill and competence and they are entitled
to protection so long as they follow the same“.
10. In the present case also from record it appears that there was no any lack
of skill and competence on the part of the Respondent and/or any omission
to do what was actually
required in the present facts and circumstances and rather on perusal of record, we find the Appellant has not challenged the competency of the
operating doctor i.e. Respondent, hence, the first part of the aforesaid para stands answered, that
there was no lack of competence on the part of
the Respondent.
11. So far as the question of omission to do any act which was
actually required is concerned, the Appellant has contended that the Respondent has committed
negligence while treating her due to which the Appellant could not get
any improvement in the
jaw/teeth lining.
12. We deem it appropriate to refer to the dicta of the Hon’ble
Apex Court, in Harish
Kumar Khurana vs. Joginder Singh and Ors. reported at AIR
2021 SC 4690, being the
latest pronouncement on the cause, wherein, the Hon’ble Supreme Court, while taking into consideration its previous
pronouncements in Jacob Mathew v. State of Punjab and Anr. reported at (2005) 6 SCC 1,
and Martin F.
D'Souza v. Mohd. Ishfaq reported at (2009)
3 SCC 1, has held as under:
“14. Having noted the decisions relied upon
by the learned Counsel for the
parties, it is clear that in every case where the treatment is not successful or the patient dies during surgery, it cannot be automatically assumed
that the medical professional was negligent.
To indicate negligence there should be material
available on record or else
appropriate medical evidence
should be tendered. The negligence alleged
should be so glaring, in which event the principle
of res ipsa loquitur could be made applicable and not based on perception.”
13. From the aforesaid dicta of the Hon’ble Apex Court, it is clear
that only the failure of the
treatment is not prima facie a ground for Medical Negligence and in order to attract the principle of res ipsa loquitur, Negligence
i.e. 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, should be clearly evident from the record.
14. In the present case, the Appellant has vaguely alleged that the
Respondent has committed negligence
in operating/treating the Appellant, due to which she does not get any improvement in her jaw/teeth lining and
also failed to get the desired
results. However, this alone cannot be a ground for holding the Respondent liable for Medical
Negligence since sometimes despite the best
efforts, the patient may not favourably respond to a treatment given by doctor,
due to which the treatment of a doctor
may fail. It is further
noted that the Appellant failed to establish
that there was breach of a duty exercised
by omission to do something which a reasonable man would do or would abstain from doing or that the treatment which was given to the Appellant was not acceptable to the
Medical Profession at that specific time period.
15. The Commission cannot presume that the allegations in the Appeal are inviolable truth even though they remained unsupported by any
evidence and relied upon the judgment of Hon’ble Apex Court in C.P. Sreekumar
(Dr.), MS (Ortho) v. S. Ramanujam reported at (2009) 7 SCC 130, wherein,
it has been held as under:
“37. We find from a reading of the order of
the Commission that it proceeded on the basis that whatever
had been alleged in the complaint by the respondent
was in fact the inviolable truth even
though it remained unsupported by any evidence. As already observed
in Jacob Mathew case [(2005) 6 SCC 1: 2005 SCC (Cri) 1369] the
onus to prove medical
negligence lies largely on the claimant and that this onus can be discharged by leading
cogent evidence. A mere averment
in a complaint which is denied by the other side can, by no stretch of imagination, be said to be evidence by which the case of the complainant can
be said to be proved. It is
the obligation of the complainant to provide the facta probanda as well as the facta probantia.”
16. The commission held, since the Appellant
failed to show any evidence
before the District
Commission as well as before this Commission to substantiate the submission
made by her, we are of the view that the Appellant has failed to establish
any negligence on part of the Respondent in the present case.
The Judgment has reiterated the law laid down
by Hon’ble Apex Court that so long as the Doctor is doing his duties as per the
prescribed norms, merely the patient does not respond that cannot be the ground
for holding the Doctor liable for medical negligence. Another important aspect
is that not only MD or Allopathy Doctors, now the Dentists are also under the scanner
of CPA. So better be prepared with the treatment and the Record
Thanks and regards
Adv. ROHiT ERANDE
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