A.V.Rama Joga Rao v. The Managing Director, KLR s Lenora Institute of Dental Sciences

[Per Smt.D. Leelavathi, President] This is a complaint filed by the complainant U/Sec.12 of Consumer Protection Act 1986 to direct the opposite party to pay Rs.25,000/- with subsequent interest at 24% p.a. for loss of denture; to pay Rs.50,000/- towards compensation with subsequent interest at 24% p.a. for mental agony and award costs of the complaint.

2. The brief facts of the case are that the complainant aged 67 years went to opposite party (Dental college and hospital) for dental treatment on 15.2.2016. The examination was initially done by one internee, the second examination was done by Ms. Rajeswary, who advised that the complainant needed an extraction of one tooth on the lower right side immediately and the final decision in respect of upper tooth on the left side (6th one) to be taken after X-ray. The 2nd internee recommended for X-ray of 6th upper tooth on the left side of the complainants jaw. Accordingly, the complainant has taken X-ray film for that tooth. On seeing the X-ray film, the internee Hasina Begum (3rd internee) stated that the complainant needed an extraction of 6th upper tooth on the left side of complainants jaw. Then, the complainant objected by saying that the 2nd internee determined that he needed an extraction of one tooth on the lower right side, where as the 3rd internee insisted an extraction of one tooth (6th) on the upper left side of his jaw. The said internee Ms. Hasina Begum acted against his objection ignoring his protests and started preparation for extraction of tooth on the upper left side of complainants jaw. The 3rd internee has given anesthesia injection, due to that the complainant could not recognize which tooth she was removing. The 3rd internee removed 7th tooth instead of 6th tooth on the upper left side of complainants jaw. While removing the tooth (7th one), she used her strength and force as the said tooth was very strong, which shows her inability to extract the tooth in one piece and made the tooth into three pieces. Then, she called senior male doctor for help and to continue the process. This happened because instead of extraction of 6th tooth, the 3rd internee has extracted 7th tooth which was in good condition. So, it is wrong committed by the 3rd internee who is not experienced doctor and is only internee. It is further stated that during the treatment caused damage to the gums and the whole procedure has resulted in not only removal of the healthy tooth, but also caused damage to the gums, this put to lot of pain during and after procedure still the complainant experiencing heavy pain and finds difficulty to take food etc. Hence, the complaint.

3. The opposite party resisted the claim of the complainant by filing written version and contended that the complaint is not maintainable as the opposite party does not come under the purview of Consumer Protection Act. The opposite party admitted that on 15.2.2016, the complainant visited its college for his dental treatment. The complainant being a senior citizen, the staff of the opposite party cordially received the complainant and given OP No.160215076 for further follow up of the complainant and for necessary investigations. The opposite party has given much priority in treating the complainant by seeing his age at free of cost. The opposite party states that the examination was initially done by internees, but the treatment was done by the expert team of doctors and faculty members. The complainant had multiple tooth problems due to his age which he was not aware of it. The doctors explained the associated problems to the complainant. After thorough checkup and investigation and after explaining the position of spoiled tooth of the complainant due to decay and old age and after taking X-ray and after the examination of the condition of the tooth, after explaining in friendly atmosphere to the complainant, he was treated by the doctors at utmost care and caution. The spoiled tooth were extracted after completely anaesthetizing to make the complainant comfortable while removing the tooth. The complainant is fully aware of his condition of tooth and damage due to decay. The opposite party states that removal of tooth will be done only after taking the X-ray of the teeth and after thorough investigation only, advised to the patient for removal of the tooth. The opposite party denied that 3rd internee Ms. Hasina Begum acted against the objection and ignoring the complainants protests and started preparation for extraction of tooth on the upper left side of the complainants jaw. The opposite party states that the complainant was not forcefully tied to the chair nor he was restrained by any doctor and the tooth was removed forcefully. The badly damaged tooth were removed only with the consent of the complainant and not against his wish and it was done only after X-ray verification and clearly explained to the complainant. The complainant was treated by senior doctors for no personal benefits, and on free of cost. The opposite party further denied that the 3rd internee has given three anesthesia injections, due to that the complainant could not recognize which tooth she was removing and while removing the tooth, she could not properly removed, put all her strength and force as the tooth was very firm strong which resulted in inability to extract the tooth in one piece and made the tooth into pieces while removing the same. The opposite party further denied that to cover up the mistake, it has retained the case sheet and X-ray film, which normal course, they could have returned to the patient. The opposite party contends that it is giving treatment on free of cost basis. The case sheet is a property of the opposite party and it is not used to give to the complainant or to any patient. It will be stored for further treatment and reviews. When the opposite party had not committed any mistake, there is no necessity to them in retaining the case sheet etc. The X-ray film is given to the complainant, but now falsely alleging that the X-ray was not given to the complainant. The opposite party further contends that it has not committed any mistake in treating the complainant. The complainant visited the opposite party after 7 days along with his son, who is an advocate practicing at Rajahmundry after tooth removal claiming wrong tooth extraction. Then the opposite party with great respect explained the case details and the treatment done to the complainant in friendly atmosphere. They were satisfied with the opposite party explanation. The opposite party directed the complainant to wait for the follow up treatment and meanwhile the complainant and his son managed and took away the opposite partys record and card without requesting the opposite party authorities and their consent and simply went away. The OP record is property of the opposite party and they have no right to take away without the consent of the authorities. If they requested the opposite party, they would have provided a xerox copy to them, but the complainant with an ulterior motive taken away the OP record which is the property of the opposite party. Therefore, the relief claimed by the complainant is untenable and the opposite party has no responsibility to pay any amount to the complainant for no fault treatment. The complainant is not entitled for any relief as prayed for. Rest of the allegations mentioned in the complaint are denied by the opposite party.

4. The complainant himself was got examined as P.W.1 and got marked Exs.A1 to A6 documents.

5. The Secretary of the opposite party by name Sri Y. Madhusudhan Reddy was got examined as R.W.1 and no documents are marked on behalf of the opposite party.

6. Arguments heard. The learned counsel for the complainant has not filed written arguments, but he submitted arguments orally. The learned counsel for the opposite party filed written arguments on behalf of the opposite party.

7. Points raised for consideration are:

1. Whether there is any deficiency in service on the part of the opposite party?

2. Whether the complainant is entitled for the reliefs as prayed for?

3. To what relief?

8. POINT Nos.1 & 2:- The complainant as P.W.1 has stated in his evidence that he went to opposite party on 15.2.2016 for dental treatment. Initially, he was examined by an internee and after thorough checkup, she has directed him to report to clinical room, where another internee Ms. Rajeswary has checked his dental position and stated that he needs an extraction of one tooth on the lower right side of his jaw immediately and that final decision in respect of the upper tooth on the left side can be taken after X ray. She recommended for X-ray in respect of his 6th upper tooth on the left side of his jaw. The 3rd internee Ms. Hasina Begum started preparation for extraction of the tooth when he enquired, she informed him that she would extract the 6th upper tooth on the left side of his jaw. Then, he objected by saying that when the examination was conducted by Ms. Rajeswary, she felt that the tooth on the lower right side of his jaw needs to be removed first, why she is acting otherwise. But, she did not consider his objection. The 3rd internee Ms. Hasina Begum has given three times anesthesia injections on the upper part of left side of his mouth and started extraction of the tooth. While removing tooth, she had to put all her strength and force as the tooth was very strong, which resulted in her inability to extract the tooth in one piece and made the tooth into three pieces. She could not handle and she was in panic, then she called the senior male doctor for the procedure. He has further stated that the 3rd internee and the senior doctor have extracted his 7th tooth which was in good condition instead of 6th defective tooth. The procedure has resulted in not only removal of his healthy tooth, but also caused damage to gums and he put to lot of pain during and after the procedure and finding it very difficult to take food etc. It is further stated that to cover their mistake, they have retained the case sheet and the X-ray film despite of his requests to handover the case sheet and the X-ray film which in normal course, they could have returned to the patient. However, he could get the case sheet, but X-ray is still in the opposite party. He filed the case sheet and outpatient card issued by the opposite party which are marked as Exs.A1 and A2. He also sent a notice by registered post to the opposite party vide Ex.A3. The same was received by the opposite party vide Ex.A4 acknowledgement. But, no reply was given by opposite party.

9. As against this, the Secretary of the opposite party filed proof affidavit and reiterated what have stated in the written version. He was not subjected for cross examination as he filed proof affidavit only, but not chief evidence affidavit.

10. No doubt the initial burden lies on the complainant to prove his allegations made in the complaint. Once the complainant produced some evidence in support of his allegations, the onus shifts on to the opposite party to rebut such evidence. It is very settled law that though the initial burden of proof is on the complainant, the onus is not constant, but it tilts depending upon the evidence adduced by each of the parties. It is for the Forum which decides the case to sift chaff from the corn and to give a finding on the issue based on weight of the evidence.

11. Now the question, in the case of doctors negligence, is, what the doctor should have done which he did not do and also what he should not have done, which he did. If the case does not fall on this base, the case of alleged negligence is not proved.

12. It is said in the evidence of P.W.1 that he went to opposite party on 15.2.2016 for dental treatment. This fact is admitted by the opposite party. The evidence of P.W.1 is very clear that the 3rd internee Ms. Hasina Begum, who is not experienced and is only internee wrongly extracted the 7th tooth which is in good condition on the upper left side of his jaw, instead of 6th defective tooth, which was immediately recognized by him. In the cross examination P.W.1 denied the suggestion that the extraction was initially done by internees and the treatment was fully done by the team of doctors and faculty members. P.W.1 stated that only internees treated and no senior doctors have attended him.

13. The case sheet dated 15.2.2016 issued by the opposite party shows that the complainant went to opposite party with complaint of pain on the upper left back tooth region since 20 days. He was advised for extraction of 6th upper left side tooth and also advised an extraction of 4th tooth on upper side and 6th lower side. But, 4th tooth is strike off and 7th tooth is mentioned. The correction does not contain any initial of internees or doctors. It seems that the figure 7 was mentioned later on on upper side. The case sheet further shows that tooth 7 and 8 on upper side are also extracted. There is nothing in the proof affidavit of opposite party to show that 7th and 8th tooth were extracted with the consent and knowledge of the complainant. Further, the case sheet Ex.A1 was signed by Ms. Rajeswary, Hasina Begum and N. Suvarna. Ms. N. Suvarna is not a senior doctor and is only 4th year BDS student. So it appears that the entire treatment was done by internees, but not expert team of doctors and faculty members and investigations done were of routine manner conducted by internees. A qualified doctor has involved only when Ms. Hasina Begum realized her mistake and was in panic. In fact, no expert doctor is involved in the procedure of treatment. The very case sheet shows the involvement of only internees namely Rajeswary, Hasina Begum and N. Suvarna and they are only BDS students and are not full- pledged doctors or senior doctors.

14. According to the complainant, he has taken treatment in A.P. Vaidhya Vidhana Parishad, Rajahmundry vide Ex.A5 OP ticket and also got removed sutures made in upper left molar region vide Ex.A6. The learned counsel for the opposite party has contended that Exs.A5 and A6 cannot be considered because they are not filed along with the complaint and they are filed only after examination of the complainant as P.W.1., along with a petition.

15. Admittedly, Exs.A5 and A6 are not filed along with the complaint or at the time of examination of the complainant as P.W.1. They are filed along with a petition after examination of P.W.1. As per Ex.A5 OP ticket, the complainant went to Government Hospital and took treatment and Ex.A6 prescription shows that the sutures are removed in upper left molar region. In Ex.A1 case sheet, it is mentioned that extraction of 7th and 8th tooth on upper side sutures are made. So, those sutures are to be removed by the doctor. The complainant went to private hospital and got removed the sutures vide Ex.A6. Even if Exs.A5 and A6 are excluded from consideration for want of strict proof of those documents, the oral testimony of P.W.1 is supported by Exs.A1 to A4 documents. Therefore, it can be said that the complainant proved his case that the internee i.e. Ms. Hasina Begum was negligent in extraction of wrong tooth i.e. 7th tooth instead of 6th tooth.

16. On the other hand, when the complainant has specifically alleged in the complaint and evidence affidavit that the entire treatment was done by only internees and no senior doctor is attended to him at the time of extracting the tooth, the onus shifted to the opposite party for rebut such allegation and evidence. The best persons to rebut that evidence are the internees essentially Ms. Hasina Begum, but the opposite party has not filed their proof affidavits to deny the complainants evidence. The opposite party filed the proof affidavit of its Secretary. But, he is not a direct person to say that wrong tooth extraction was not done. Under such circumstances, the adverse inference should be drawn against the opposite party for not tendering the internees as its witnesses.

17. The opposite party has come out with the version that after thorough checkup and investigation, after explaining the position of spoiled tooth of complainant due to decay and old age and after taking X-ray and after examination of condition of the tooth, after explaining in friendly atmosphere to the complainant, he was treated by the doctors at utmost care and caution. The treatment was given by them to the badly spoiled tooth after being informed to the complainant who is well educated. The spoiled tooth were extracted after completely anesthetizing to make the complainant comfortable while removing the tooth. But there is nothing on record to prove the same except the proof affidavit of its Secretary, who is not directly concerned to this case. It is the further version of the opposite party that the complainant was not forcibly tied to the chair, nor he was restrained by any doctor and the tooth was pulled forcibly. The badly damaged tooth were removed only with the consent of the complainant and not against his wish and it was done only after X-ray verification and clearly explained to the complainant. But, the opposite party has not examined the treatment doctor. So, it can be said that the opposite party failed to rebut the evidence of the complainant.

18. Coming to the legal aspect, the learned counsel for the opposite party has relied on a decision reported in (2004) 3 CPJ 541 in a case between Dr. Prem Luthra Vs. Iftekhar. Wherein, the Honble Uttarkhand State Consumer Disputes Redressal Commission held that it is settled principle of law that the doctors treatment is never guarantee to cure.

19. The case on hand is that the internees of opposite party have extracted the 7th tooth on upper side which was in good condition instead of extraction of 6th tooth on the upper side of complainants jaw. So, the above decision is not applicable to this case.

20. He also relied upon a decision reported in (2006) 1 CPJ 50, (2006) 1 CPR 392 in a case between Mangalsinh Ratansinh Gohil Vs. Dr. Kanubhai Himatbhai Joshi. In that case, the allegations made by the complainant are not supported by documentary evidence. The illness was due to insufficient nutrition and deficiency of vitamins and not an account of medical reaction.

21. In the instant case, the allegations made by the complainant are supported by documentary evidence and the inefficiency and negligence on the part of internees also proved. Therefore, the above decision is not applicable to the present facts of the case on hand.

22. He also relied upon a decision reported in (2004) 2 CPJ 102 (2004) 2 CLT 435 in a case between @ Eqcitation (Equivalent citation:- 2004 (2) CLT 435) Vs. V.R. Soni. In that case, the Honble Madhya Pradesh State Consumer Disputes Redressal Commission held that negligence has to be proved, it cannot be presumed. The law laid down in the above decision is not disputed and it should be followed.

23. The learned counsel for the opposite party has contended that there is no expert evidence to prove the negligence. He relied upon a decision reported in (2002) 3 CPJ 463, (2002) 2 CPR 174, (2002) 3 CPJ 136 in a case between Rani Devi Vs. Dr. S.R. Agarwal and others. In that case, the complaint was dismissed as the complainant could not produce any expert evidence to prove medical negligence. But in the instant case, the evidence of complainant as P.W.1 coupled with the documentary evidence clearly established that the 3rd internee was negligent in the extraction of the wrong tooth (7th instead of 6th) and the 3rd internee is at fault. Therefore, there is no need for expert evidence. Hence, the above decision is not applicable to this case.

24. The learned counsel for the opposite party has contended that to hold the opposite party to be vicariously liable, it is imperative for the complainant to implead the internees against whom negligence is alleged as parties to the complaint, so they may get an opportunity to depend themselves. In support of his version, he has relied upon a decision reported in (2004) 3 CPJ 664 in a case between S.V. Nongrum and others Vs. Woodland Nursing Home and others. Wherein, it was held that the vicarious liability arises when the complainant impleaded staff or doctor giving treatment, otherwise, no such vicarious liability.

25. I would like to refer a decision reported in 2007 Madras, LR 1029 in a case between Savita Garg Vs. National Heart Institute. Wherein, the Honble Supreme Court held that hospital authority is liable for the negligence of professional men employed by it and non- impleading the treating doctor as party in a complaint alleging medical negligence would not result in dismissal of the original petition for non-joinder of necessary party. In the instant case, the complainant has not impleaded the attending internees or doctors against whom medical negligence alleged. However, the institute i.e. opposite party had to produce the concerned treating internee or doctor and has to produce evidence that all care and caution was taken by them or their staff to justify that there was no negligence involved in the matter. Further, the opposite party which is in better position to disclose that what care was taken or what medicine was advised to the complainant. It is the duty of the opposite party to satisfy that there was no lack of care or diligence. The hospitals are institutions, people expect better and efficient service. If the institutions fails to discharge their duties through their doctors, it is the institution, which has to satisfy and by not impleading a particular doctor will not absolve the institution/hospital of their responsibilities. In the light of the decision referred to by this Forum, the decision submitted by the learned counsel for the opposite party is not applicable.

26. The learned counsel for the opposite party has further contended that the complainant was not a consumer as the opposite party is an institution (dental college).

27. We disagree with the submission of the learned counsel for the opposite party. It was held by Honble Supreme Court in Indian Medical Association Vs. V.P. Shantas, I (1996) CLT 81 (SC)=III (1995) CPJ 1 (SC)=1995 (SLT Soft) 561 and Savita Gargs vs. Director, National Heart Institute, IV (2004) CPJ 40 (SC)=IV (2004) SLT 385, that Government hospitals are also liable for medical negligence. Recently, Honble Supreme Court in the case of V. Krishnakumar Vs. State of Tamil Nadu & others., VI (2015) SLT 769=III (2015) CPJ

15 (SC)=Civil Appeal No.8065 of 2009, decided on July 1, 2015 held the Government of Tamil Nadu is responsible for medical negligence caused in the government hospital.

28. It was held in II (2016) CPJ 639 (NC) in a case between Royapettah Government Hopsital Vs. R. Lakshmi. Wherein, the Honble National Consumer Disputes Redressal Commission, New Delhi held that government hospitals are also liable for medical negligence.

29. In the light of the above decisions, the decisions submitted by the learned counsel for the opposite party reported in 1989 SC (Rajasthan) 492 is not applicable.

30. As it is proved in this case, the 3rd internee was negligent in the extraction of the wrong tooth, the opposite party which is institution is vicariously liable for the fault of its internees.

31. The learned counsel for the opposite party has contended that the treatment to the complainant is on free of cost. Therefore, the complaint is not maintainable as the opposite party not comes under the purview of the Consumer Protection Act.

32. It is the evidence of P.W.1 that at the time of registration, the opposite party collected fee from him, but it has not given any receipt for the registration fee, X-ray and other payments made by him. But, his evidence is not supported by any receipts. As could be seen from Ex.A1 case sheet at page No.3, the complainant is advised to pay Rs.30/-. So, it indicates that the complainant paid some amount to the opposite party. So, he comes under the definition of consumer. Even if the treatment is provided on free of cost, as per the decision referred to above i.e. II (2016) CPJ 639 (NC), wherein it was clearly held that government hospitals are also liable for medical negligence because they have to provide services to the people. So the opposite party is liable for medical negligence.

33. If the internees and doctors have not taken care of the extraction of tooth, it is nothing but negligence on their part. We are of the considered view that no expert evidence is necessary to come to such conclusion. This is a case of where the res ipsa loquitur applied. The only conclusion that can be drawn from the circumstances is that the opposite party is guilty of negligence in the matter of treatment to the complainant, they are bound to compensate the complainant for his sufferings, monetary loss and mental agony. The complainant must have also undergone physical pain and mental agony during the treatment.

34. Under these circumstances, we are of the view that the complainant is entitled for compensation. We answered the points accordingly.

35. POINT No.3: In the result, the complaint is allowed in part, directing the opposite party to pay Rs.15,000/- towards compensation and pay Rs.5,000/- towards damages for mental agony along with interest at 9% p.a. from the date of complaint i.e. 17.3.2016 till the date of realization and also pay Rs.2,000/- towards costs of the complaint to the complainant. Time for compliance is two months from the date of this order. Typed to dictation, corrected and pronounced by us in open Forum, on this the 8th day of August, 2017. Sd/-xxx Sd/-xxx MEMBER PRESIDENT APPENDIX OF EVIDENCE WITNESSES EXAMINED FOR COMPLAINANT: FOR OPPOSITE PARTY: P.W.1: Sri A.V. Rama Joga Rao R.W.1: Sri Y. Madhusudhan Reddy DOCUMENTS MARKED FOR COMPLAINANT: Ex.A1 Out Patient Card dt.15.2.2016. Ex.A2 Out Patient Record O.P. Card No.160215076 dt.15.2.2016. Ex.A3 Office copy of Regd. notice. Ex.A4 Postal Ack. due. Ex.A5 Out-Patient Ticket dt.13.7.2016. Ex.A6 Prescription issued by Sri Ganesh Super Specialty Dental Hospital, Rajamahendravaram. FOR OPPOSITE PARTY:- - Nil - Sd/-xxx Sd/-xxx MEMBER PRESIDENT