Not Obtaining Written Consent Before Treatment Is Medical Negligence: West Bengal State Commission

Brief Facts of the Case

The complainant's father took his daughter to the opposite party/doctor for treatment of her uneven and slightly forward upper teeth. He later learned that orthodontists are the specialists qualified for such treatment. Despite not being an orthodontist, the doctor began treatment without following the proper procedures for straightening and rearranging her teeth. The complainant argued that the doctor should have referred them to an orthodontist, who would have conducted a thorough examination, including x-rays and moulds, before starting treatment. The complainant filed a complaint before the District Commission which allowed the complaint and found negligence and deficiency in the doctor's treatment. It directed the doctor to pay compensation of Rs.3,00,000 within 45 days. Aggrieved by the District Commission's order, the doctor appealed to the State Commission.

Contentions of the Doctor

The doctor argued that the District Commission failed to recognize that he had informed the complainant, the patient's father, of the entire treatment plan in detail, without concealing any facts. He contended there was no deficiency in service as the complainants stopped seeking treatment from him. The doctor also argued that the complainants did not prove the four 'D's of medical negligence: duty of care, dereliction of duty, direct causation, and damages. He maintained that an error of judgment or a simple lack of care does not constitute negligence if the doctor follows an accepted practice. He emphasized that orthodontists fall within the scope of a Bachelor of Dentistry and that he had the required degree and experience. Therefore, he argued that the appeal should be allowed.

Observations by the State Commission

The State Commission observed that the doctor did not obtain written consent from the complainant before starting the treatment, as required by the Indian Medical Council Act, 1956. This lack of consent was considered medical negligence. The complainant's representative argued that no x-ray or precautionary measures were taken before the treatment began, which was hastily initiated. The commission found substance in these claims, noting that no x-ray was taken, which is crucial for understanding the internal structure before treatment. This omission was deemed gross negligence. Furthermore, the commission observed that the doctor, a BDS dentist, provided orthodontic treatment without proper qualifications, violating the standards set by the Dental Council of India. The lack of improvement in the patient's condition and ongoing suffering further supported the claim of medical negligence. Citing the case of Nizam Institute of Medical Sciences vs. Prashanth S. Dhanuka, the commission emphasized that once the complainant establishes a case of negligence, the burden shifts to the respondent to prove otherwise. The commission concluded that there was clear medical negligence and deficiency in service by the doctor, affirming the decision of the District Commission and dismissing the appeal.

Case Title: Dr. Prasenjit Das Vs. Smt. Aditi Sarkar(Minor)

Case Number: F.A. No. A/328/2022