IN THE CONSUMER DISPUTES REDRESSAL FORUM
KANNUR
Complaint Case No. CC/227/2020 ( Date of Filing : 12 Oct 2020 )
1. Rayinas.P.N Sakkeenas,Swastha,Thalap,P.O.Pallikkunnu,Kannur-4 ...........Complainant(s) Versus
1. Dr.C.K.Ashokan D.S Chief Dental Consultant,Near Chinmaya Vidya Bhavan,Thalap,Kannur-67002. ............Opp.Party(s)
BEFORE:
HON'BLE MRS. RAVI SUSHA PRESIDENT HON'BLE MRS. Moly Kutty Mathew MEMBER HON'BLE MR. Sajeesh. K.P MEMBER
PRESENT:
Dated : 30 Nov 2023 Final Order / Judgement
SMT. RAVI SUSHA : PRESIDENT
Complainant has filed this complaint U/S 35 of the Consumer Protection Act 2019, seeking to get an order against opposite party directing to pay an amount of Rs.50,000/- to complainant towards compensation, together with cost of proceedings alleging medical negligence on the part of opposite party.
Brief facts of complainant's case is that she had approached OP doctor on 22/9/2020 for getting an information about the discoloration of her teeth having a silver coating. After examination , OP doctor informed her to extract the silver coated tooth immediately, otherwise it will leads to "cancer". Then the complainant informed that one tooth can be extracted on that on that day and the other tooth from upper jaw can be extracted after two days. Then OP advised that, as it was the time of Covid 19, it is not advisable to come again to the clinic, so that both teeth should be extracted on that day itself. So she had given consent for the extraction and OP received Rs.2000/-. On the next day realized that the silver coating tooth was not extracted. Instead of that, two healthy teeth first molar and opposite tooth in the upper jaw were extracted. Due to the extraction, she had sustained head ach, irritation on eyes and pain on her hands. On informing the discomfort by the complainant's sister, OP doctor had shouted and misbehaved . Complainant alleged that the action of OP amounts to medical negligence and deficiency in service. Hence this complaint.
After receiving notice, OP entered appearance through counsel and filed written version stating that there was no negligence, carelessness or deficiency in service on the part of OP. It is stated that the complainant presented to the clinic of OP on 22/9/2020 with complaints of a lesion in the cheek mucosa on the left side, opposite to the second -third molar region since 6-7 months and she wanted the first molar tooth(36) which was having a silver amalgam
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restoration, to be extracted. The complainant informed that she had suffered the said complaint for the last more than six months and consulted another dentist and he said the discoloration is due to the silver amalgam filling on the first molar and that tooth has to be extracted The patient was under the wrong impression that the lesion in the cheek is due to silver amalgam filling on the first molar tooth. The said condition was exactly opposite to 38, the tooth behind it. On clinical examination it was found that the mucosal thickening and discoloration is due to the chronic cheek biting between the upper and lower last molars. OP stated that the first molar which was very much needed for chewing , was absolutely healthy except for the black amalgam filling. OP further pleaded that the lesion clinically looked like non-healing ulcer incident to chronic cheek biting and black discoloration of the area which could be due to silver amalgam filling on the first molar or oral melanin pigmentation. The white patch along with bite marks was also present in relation to the lesion and the area behind it. So naturally the provisional clinical diagnosis was leukoplakia in the buccal mucosa incident to chronic cheek biting which the patient was unaware of. Other possibilities are Lichenoid reaction or oral lihen planus with oral melanin pigmentation. Many times these muco cutaneous lesions will have varying clinical presentation and just by clinical examination the doctor may not be able to make a definitive diagnosis. The final diagnosis is possible only by histopathological evaluation . Any non healing ulcer or plaque or discontinuity in the oral mucosa for more than 3 months should be taken as premalignant. If there is any doubt of chronic injury or irritation from the tooth or restorations which is suspected as cause for the injury, it should be removed as a precautionary measure. In such cases the doctor gives utmost importance to life of the individual rather than the tooth. The fact that there was epithelial thickening and signs bite marks in the mucosa suggestive of keratotic lesion which may turn premalignant in the future was clearly explained to the complainant in detail and the finding that the last tooth in the upper and lower jaw need to be extracted and not the first molar which is having the amalgam filling also told to the patient. The complainant understood the same and insisted extracting the offending teeth the same day itself as she wants to avoid another dental visit because of the pandemic. As the complainant was apprehensive and not comfortable with a repeat visit or review, for fear of Covid 19 the OP had given resorbable sutures and advised her to come for follow up of the lesion after three weeks. She was also advised to change the filling on the first molar tooth and a biopsy examination if the lesion in the cheek doesn't heal. The standard charges of Rs.2000/- was levied towards treatment charges and cost of the additional disposables required in due compliance of the covid protocols and guidelines. It is also relevant to point out that the complainant was never issued any notice prior to the institution of the above complaint. There was no negligence, carelessness or deficiency in service on the part of OP and the OP has 36 years of experience in General Dental practice, 25 years of experience specialty dental practice, Periodontal Plastic surgery and 20 years of experience in Implant Dentistry and his clinic is the first ISO certified dental clinic in north Malabar. OP further stated that the as per any standard text books in medicine and surgery any non-healing lesion in the mouth should be taken, as pre cancerious and the irritating factor should be removed as the first line of treatment. Both teeth were extracted on the same day because the patient wanted to finish it the same day so that she can avoid a second visit in the clinic in view of the spike in the pandemic, and there was no contra indication for doing such an extraction. Since the patient was otherwise healthy without any systemic ailments, taking into account the request of the patient the OP removed the last molar teeth with the full consent of the complainant. There was no negligence, carelessness or deficiency in service on the part of OP hence prayed for the dismissal of the complaint.
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At the evidence stage, complainant has filed her proof affidavit and documents. She was examined as PW1 and marked the documents as Exts.A1 to A5. PW1 was cross examined for OP. On the side of OP three witness were examined including OP. OP has filed chief affidavit and has been examined as DW1. Marked Exts.B1 to B4. 2ndwitness(DW2) is Professor in Dept. of Oral Medicine and Radiology, Govt. Dental College, Pariyaram. DW3 is Senior Consultant(Dental) at District Hospital ,Kannur. DWs 2&3 were examined as Expert doctors. All witnesses were cross-examined by complainant. Through DW3 the Medical Board Report was marked as Ext.A6.
After that the learned counsels of complainant and OP were made oral argument. We have perused the medical records, pleadings of both parties, expert evidence and also submission of both learned counsels.
Here the main allegation of the complainant is that OP had removed two healthy last tooth in the upper and lower jaw of the complainant unwantedly instead of removing first molar tooth(36) which was having a silver amalgam. According to OP, on examination of complainant, it was found that she had a complaint of a lesion in the cheek mucosa on the left side, opposite to the second-third molar region since 6-7 months, the said condition was exactly opposite to 38, the tooth behind it. OP pleaded that the lesion was found that the mucosal thickening and discoloration looked like non-healing ulcer is due to the chronic cheek biting between the upper and lower last molars. White patch along with bite marks was also present to the lesion and the area behind it . Further pleaded that the first molar which was very much needed for chewing , was absolutely healthy except for the black amalgam filling. OP contended that any non- healing ulcer or plague or discontinuity in the oral mucosa more than 3 months should be taken as pre malignant. If there is any doubt of chronic injury or irritation from the tooth or restorations which is suspected as cause for the injury, it should be removed as a precautionary measure. In such cases the doctor gives utmost importance to life of the individual rather than the tooth. Further pleaded that since the patient was healthy and not having any other systemic ailments, appreciating and accommodating the request, and to avoid unnecessary multiple contacts and exposure in the peak time of pandemic, he had extracted the last molars after getting informed consent from the complainant and given resorbable sutures and advised her to come for follow up of the lesion after three weeks. She was also advised to change the filling on the first molar tooth and a biopsy examination if the lesion in the cheek doesn't heal.
OP contended that he had removed the last molar teeth with the full consent of the complainant. During cross examination OP has deposed in tune with his contention in the version.
For proving the contention, OP has examined Dr.Kiran.K, Professor in Department of Oral medicine and Radiologist, Govt. Dental College, Periyaram, as an expert witness(DW2). On analysis of the evidence of DW2, it is realized that he has given evidence as " Among the teeth, what is the functional role of 3rdmolar? It doesn't have any functional role and is an ornamental teeth. Commonly called wisdom teeth erupts after 20 years of age." Further deposed after confronted Ext.A1, the patient had bite patch on the left cheek- chief complaint. Clinical diagnosis was leukoplakik patches on the left cheek opposite to lower left 3rdmolar. She had also chronic cheek biting . These type of bite patches can be premalignt lesions. This occurs on account of the chronic cheek biting of the upper and lower 3rdmolar. DW2 further
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opinioned that the presenting problems of the patient and the clinical findings, justify the decisions to extract the left upper and lower 3rdmolar. DW2 has given opinion that "on a cumulative analysis of documents shown to me and my practical experience I am of a definite opinion that there was no negligence or carelessness on the part of treating dental doctor".
Though DW2 has been cross-examined in detail by the learned counsel of complainant, the expert doctor did not give evidence that there was negligence on the part of OP doctor in giving treatment to the complainant and also suggested extraction of the left upper and lower 3rdmolar instead of extracting first molar teeth having silver amalgam restoration. In order to prove he case of OP, one more doctor has been examined . Dr.K.A.SSujatha, Senior Consultant(Dental) District Hospital Kannur, as (DW3) who has issued enquiry report Ext.B1(a) as per the direction of DMO, through the Superintendent of District Hospital,Kannur on the basis of the complaint filed by the complainant to Superintendent District Hospital, alleging wrong tooth extraction from her mouth by OP doctor. DW3 has deposed that " after examining the patient and perusing the treatment records, Exts.A1, A4,A6 & Ext.B1(a) came to a conclusion that there was no wrong on the part of OP on extraction of the teeth. DW3 further deposed from the presentation and symptoms as seen in the treatment records furnished to me, the extraction of both the teeth is justified? Yes. 3rdmolar teeth is not essential for masticatory purpose. If it is an offending teeth, it has to be removed. If the offending teeth is removed, the ulcer or lesion will be cured in a short period. Answer given by DW3 to the question put forward by the complainant" How can you came to a conclusion that the extracted teeth is the cause for the leucoplakia in the buckal mucosa? I have not seen the lesion when it was present in the mouth. OP doctor have seen the lesion and he has decided to extract the teeth for avoiding ulcer, in order the lesion to get heal. The OP doctor had given statement for that and also obtained consent from the patient". Further in re-examination, DW3 stated that " even though in Ext.A6 ulcer check and lesion is mentioned by the time the patient was examined at Pariyaram MCH Ext.A4 and by me Ext.B1(a), the ulcer and lesion was already resolved. The bluish black discolouration seen by me was not an ulcer".
Here OP doctor has filed a writ petition before Hon'ble High Court of Kerala WP(c ) No.33429/2023, challenging the recommendation given in the report of the Expert panel that though criminal negligence may not be warranted to be drawn against his client, civil negligence only and the subject may be advised to seek remedy from the Consumer Protection Forum. Thus the files are returned. The Expert panel report was marked as Ext.A5. After hearing the Hon'ble High Court, ordered and directed, to rely upon Ext.A5 only with respect to the medical opinion stated in Ext.B1(a), the enquiry report submitted by Dr.K.A.Sujatha(DW3). Further held that the present complaint is to be decided based on the evidence and other materials on record.
In Jacob Mathew Vs State of Punjab III20(05) CCR 9 (SC) . Hon'ble Supreme Court held that so long as a doctor follows a practice acceptable to the medical profession of that day, he cannot be held liable for negligence. Further held that a professional may be held liable for negligence if he was not possessed of the requisite skill which he professed to have possessed or he did not exercise, with reasonable competence in the given case, the skill which he did possess. In Bolam vs. Friern Hospital Management Committee the legal position is that if a medical practitioner exercises the ordinary skill of an ordinary competent man exercising that
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particular art he cannot be held liable for negligence. In the present case the expert doctors DW2 categorically deposed that on the analysis of medical documents available in this cse, there was no negligence or carelessness on the part of treating dental doctor. Further if the upper and lower left 3rdmolar were not extracted the problem of the patient would go from bad to worse. Result is malignancy. In view of the examination of Expert evidence and medical records above, we do not find any merit in this consumer complaint. There are no grounds to justify the complainant's allegation that there is medical negligence and deficiency in service on the part of OP doctor. Here the complainant has not produced any medical report and nor examined any expert witness to show negligence of OP doctor. Therefore the claim was not proved. Complainant has not challenged the qualification and experience of the OP doctor as contended in the version.
In the result, complaint fails and hence the same is dismissed. No order as to cost. Exts:
A1- Prescription issued by OP dtd.22/9/2020
A2- Screen shot of tooth (subject proof marked with objection)
A3- Certified copy of FIR
A4- prescription issued by Dr. Samual
A5- Report issued by District Medical Officer
A6-certificate issued by Dr.Muhammed Nizar dt.30/9/2020
B1 series-Enquiry report submitted by DMO,Kannur
B1(a)-expert opinion
B2-PW1's relevant medical history
B3&B3(a)- Final report of Asst. Commissioner of Police and JFCM(I) order basing on Ext.B3 B4- consent of PW1
PW1-Rainas.P.V- complainant
DW1-Dr.C.K.Asokan- OP
DW2-Dr.Kiran.K- witness of OP
DW3-Dr.K.A.Sujatha-witness of OP
Sd/ Sd/ Sd/
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PRESIDENT MEMBER MEMBER
Ravi Susha Molykutty Mathew Sajeesh K.P eva
/Forwarded by Order/
ASSISTANT REGISTRAR
[HON'BLE MRS. RAVI SUSHA]
PRESIDENT
[HON'BLE MRS. Moly Kutty Mathew]
MEMBER
[HON'BLE MR. Sajeesh. K.P]
MEMBER
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