State Consumer Disputes Redressal Commission
Capt. Charanjit Singh Kalra vs . Dr. Usha Rehani on 11 March, 2008
IN THE STATE COMMISSION:DELHI IN THE STATE COMMISSION: DELHI (Constituted under Section 9 of The Consumer Protection Act, 1986) Date of Decision: 11-03-2008 Complaint No . C-169 / 99 1. Capt. Charanjit Singh Kalra, - Complainant Through G.P.A. Through Mrs. Jagmeet Kalra, Mr. Shashi Bhushan, R/o K-68, Ground Floor, Advocate. Jangpura Extension, New Delhi-110014. Versus 1. Dr. Usha Rehani, - Opposite Party No.1 C/o Batra Hospital & Medical Through Research Centre, Mr. Manavendra Verma, 1-Tughlakabad Institutional Area, Advocate. New Delhi 1100 62. 2. Batra Hospital & Medical - Opposite Party No.2 Research Centre, 1-Tughlakabad Institutional Area, New Delhi 1100 62. 3. The New India Assurance - Opposite Party No.3 Company Ltd., Mandal Karyala : 311900 Community Centre, New Friends Colony, New Delhi 1100 65. CORAM: Justice J.D. Kapoor, President Ms. Rumnita Mittal, Member
1. Whether Reporters of local newspapers be allowed to see the judgment?
2. To be referred to the Reporter or not?
JUSTICE J.D. KAPOOR, PRESIDENT, (ORAL) The complainant is claiming a total sum of Rs. 6,92,000/-, including Rs. 6,78,000/- for loss of salary for not attending to his job on account of being sick due to medical negligence on the part of the OPs No. 1 & 2; Rs. 10,000/- as expenses incurred on medical treatment and Rs. 4,000/- as legal expenses.
2. The complainant Capt. Charanjit Singh Kalra is working as Master (Captain) in the Marchant Navy, receiving salary of Rs. 1,58,000/- per month from his employer. In the year 1986, the complainant obtained Non-Resident Indian status by virtue of his type of employment while performing his duty outside the country. On 03.08.1998, the complainant started having normal to severe toothache and contacted Batra Hospital and Medical Research Centre. The hospital authorities referred the complainants dental problem to Dr. Usha Rehani. On 06.08.1998, while extracting out the aching tooth of the complainant, the Opposite Party No.1 (Dr. Usha Rehani) negligently broke the said tooth into pieces. This resulted in left out of pieces of that broken tooth remaining in the basic root portion of the complainants gum. Subsequently, the Opposite Party No.1 administered anesthesia to the complainant to remove the left-out pieces from the gum of lower jaw. The affect of anesthesia lasted for about four hours and subsequently acute unbearable pain started from the said portion of lower jaw. On 08.08.1998, the complainant formally complained extreme pains in his jaws. By that time, the complainant had developed lot of swelling on his cheek.
3. On 10.08.1998, the complainant again visited the aforesaid doctor in the hospital. The Opposite Party No.1 had the version that there is nothing wrong in the treatment she had performed on the complainant.
4. The complainant was compelled to move to an another doctor named Dr. S. Umre of Dental Asthetics, 40, Niti Bagh, S.F.S. Flats, Asiad Village Road, New Delhi and on 11.08.1998 got the X-Ray done of the affected portion of the complainants mouth. It was discovered that there is a fracture on lower right mandible of right side jaw of the complainant and was given interdental-wiring to immobilize the joint and the fracture of the complainant. On 13.08.1998, the complainant was operated upon by Dr. Dilip Shukla and wires were removed on 13.10.1998.
5. All this lasted for over two months and one week. Due to aforesaid non-joining of service by the complainant, the complainant suffered a loss of Rs. 3,58,000/- for not attending his duties.
6. Due to aforesaid compulsory medical stay in India, the complainant lost his Non-Resident Indian status.
7. While denying any negligence as alleged by complainant OP No.1 and 2 have come up with the following version/defence:-
(i) That the complainant reported to OP No.1 with a broken tooth as evidenced by the X-rays. It is, therefore, wrong to contend that the tooth was broken by OP No.1 during extraction. The complainant was advised extraction. The extraction of the wisdom molar is a surgical process. After extracting the pieces of the molar on 06.08.1998, the complainant was asked to visit the hospital the very next day, i.e., 07.08.1998.
As advised, the complainant did not visit the hospital the next day. However, on 08.08.1998, the complainant did visit the hospital with pain and swelling, a common feature after extraction.
(ii) That the complainant in spite of clear instruction to report on a daily basis visited the hospital only on 10.08.1998.
(iii) Complainant never visited the hospital after 10.08.1998. His switching over to another doctor on 11.08.1998 was a pre-mature act. The fracture of the mandible is a known complication of extracting broken molars and its detection and treatment needs the cooperation of the patient which the complainant had failed to provide.
(iv) That the complainant had only paid a sum of Rs. 1,200/- (approximately) towards X-ray, extraction, registration and doctors consultation fee at the OP No.2.
(v) It is denied that the complainant has suffered any loss as alleged or that such a loss is even remotely connected to an act of omission or commission in the treatment provided to him at the respondent hospital.
8. As far as OP No.3 is concerned, it most respectfully submitted that the liability of the Company is to indemnify the insured against their legal liability to pay compensation subject to the terms and condition contained therein. The replying OP will only be liable if the insured is held liable in her professional service not otherwise.
9. In support of allegations of negligence on the part of OP No.1 and 2, the complainant has mainly placed reliance upon the certificate of Dr. S. Umre of Dental Aesthetics which is dated 14-10-1998 that he saw the complainant on 11-08-1998 and got X-rayed on the affected portion of the mouth. The certificate is to the following effect:-
14-10-1998 This is to certify that Capt. C.S. Kalra (undersigned) visited our office on 11-08-1998 with an external swelling on lower right jaw and chief complaint of pain and difficulty in eating. Also there was a complaint of numbness on right side. Patient was advised on Ortho Pento Graph (OPG) in which it was discovered fracture of lower right mandible.
Patient was advised interdental wiring to immobilize the joint and fracture. He was operated for the same by Dr. DilipShukla (our panel oral Surgeon) on 13-08-1998. Wires were removed on 13-10-1998.
During the above mentioned period he was advised to see oral Surgeon on regular weekly check up.
10. According to learned counsel for the complainant aforesaid certificate shows that it was during the extraction of aching tooth of the complainant by OP No.1 that fracture of lower jaw mandible was caused which resulted in interdental wiring to immobilize the joint and fracture of the complainant and it was removed after two months i.e. in October 1998. the complainant has also attached his salary certificate showing gross earning during the period from 31-03-1996 to 31-03-1998 i.e. loss of salary of Rs. 3,20,000/-. According to the complainant for two months complainant could not join his duty because of the fracture caused by OP No.1 and subsequent operation done in August 2001 and the wires were removed in October.
11. While absolving them from the charge of negligence while extracting the molar the learned counsel for the OP has referred to medical literature showing that while extracting a wisdom molar fracture of the mandible is a likely and inherent complication and further that the extraction of broken tooth is always done in pieces. The relevant medical literature is as under:-
(i) Chapter V COMPLICATIONS OF TOOTH EXTRACTION The complications of tooth extraction are many and varied and some may occur even when the utmost care is exercised. Others are avoidable if a plan of campaign, designed to deal with difficulties diagnosed during a careful preoperative assessment, is implemented by an operator who adheres to sound surgical principles during the extraction.
POSSIBEL COMPLICATIONS Failure to:-
Secure anaesthesia Remove the tooth with either forceps or elevators.
Fracture of:-
Crown of tooth being extracted.
Roots of tooth being extracted.
Alvcolar bone.
Maxillary tuberosity Adjacent or opposing tooth.
Mandible Dislocation of :-
Adjacent tooth.
Remporomandibular antrum.
Under general anaesthesia in the dental chair.
Excessive haemorrhage :-
During tooth removal.
On completion of the extraction.
Postoperatively.
Damage to:-
Gums.
Lips.
Inferior dental nerve or its branches.
Lingual nerve.
Tongue and floor of mouth.
Postoperative pain due to :-
Damage to hard and soft tissues.
Dry socket Acute osteomyelitis of the mandible.
Traumatic arthritis of the temporomandibular joint.
Postoperative swelling due to :-
Oedema Haematoma formation Infection (2) ORAL AND MAXILLOFACIAL SURGERY, Volume One by W. Harry Archer, B.s., M.S., D.D.S. Complications during or after the removal of impacted, malposed or rudimentary teeth.
Among the many complications that may occur during or after the removal of impacted teeth the following may be mentioned:-
1. Exposure of the inferior alveolar canal.
2. Severance of the inferior alveolar nerve or injury to or compression of this nerve, resulting in prolonged numbness or paresthesia of the lip.
3. Acuite trismus, severe and incapacitating so far as mastication is concerned.
4. Fracture of roots. Maxillary third molar roots may be forced into the maxillary sinus. Mandibular third molar roots may be dislodged through the thin or nonexistent lingual cortical bone into the submandibular space. If the mandibular canal is in contact with the apices of the mandibular third molar, a small fracture apex can be pushed into this canal when attempts are made to remove it unless extreme care is exercised.
5. Disruption of blood supply due to injury to, or compression of the inferior alveolar artery and vein. Interruption of the blood supply to a palatal flap for too long a time may result in necrosis of the flap.
6. Fracture of a large section of alveolar process.
7. Traumatization or dislodgement of adjacent teeth. This may cause a loss of vitality in these teeth and resultant periapical infection.
8. Discoloration of the soft tissues overlying and below the mandible, below the eye, in the cheek or in the lower lip depending on the operative site. This is due to ecchymosis as a result of postoperative bleeding.
9. Injury to the lips, cheeks or mucous membrane from the use of instruments.
10. Opening into the maxillary sinus.
11. Forcing a tooth into the maxillary sinus.
12. Forcing an upper third molar into the pterygomaxillary fossa.
13. Opening into the nasal cavity.
14. Loss of a large section of alveolar process postoperatively, due to necrosis and sloughing because of improper planning of the technique to be used in the removal of the impacted tooth. This is due to usually to overtraumatization of the investing bone by excess elevator pressure, dull chisets, burning the bone with rapidly turning burs, or using dulls burs.
15. Fracture of the mandible or the maxilla.
16. Extensive laceration and/or traumatization of the soft tissues.
17. Extensive exposure of the roots of adjacent teeth which may eventually result in the premature loss of those teeth.
18. Forcing an apex through the lingual plate of the mandible into the sublingual space, or into the maxillary sinus, or into the inferior alveolar canal.
19. Pain.
This may be the normal amount of postoperative pain associated with normal surgical trauma, or it may be the severe pain of alveolagia (so falled dry socket).
12. In view of the aforesaid medical literature there is an inherent risk of complication of fracture of mandible while extracting wisdom molar coupled with the fact that the complainant did not visit the said doctor on the next date as the molar is always extracted in stages and there being no report of Dr. Umre or Dr. Dilip that the OP No.1 was negligent while extracting molar and it was due to negligence that the fracture of the mandible took place. The negligence should be perse, however, in the line of treatment or in the performing of the operation. If the doctor prescribes the treatment and performed operation as per established medical practice and procedure and being a skilled person the inherent or likely complication arising in such operation which are demonstrated by the medical literature cannot make out a case of medical negligence. Had the OP No.1 not been skilled in extracting the molar tooth or done in such manner which was not as per medical practice and procedure only then the OP No.1 would have held guilty for negligence in treating patient.
13. It is contended by counsel for the OP that the patient did not go to OP No.1 had the complication arisen from the extraction of the tooth and straightaway went to other doctor who operated him and there is no opinion of any doctor projecting or showing or demonstrating any negligence while extracting the molar by OP No.1. What they have stated is that there is a fracture of right lower mandible which was treated with inter-dental wiring to immobilize the joint and fracture. This process could have been undertaken by OP No.1 had the complainant gone to her. OP No.1 was not a quack.
14. The Supreme Court has even gone to the extent that if there is an error of judgment while operating or treating such an incident cannot come within the ambit of medical negligence.
15. To ascertain the medical negligence, cumulative conclusions drawn from various decisions starting from Bolams case and followed by catena of decisions of Supreme Court can be summed up in the form of following queries? Decision will depend upon the answers:-
(i) Whether the treating doctor had the ordinary skill and not the skill of the highest degree that he professed and exercised, as everybody is not supposed to possess the highest or perfect level of expertise or skills in the branch he practices?
(ii) Whether the guilty doctor had done something or failed to do something which in the given facts and circumstances no medical professional would do when in ordinary senses and prudence?
(iii) Whether the risk involved in the procedure or line of treatment was such that injury or death was imminent or risk involved was upto the percentage of failures?
(iv) Whether there was error of judgment in adopting a particular line of treatment? If so what was the level of error? Was it so overboard that result could have been fatal or near fatal or at lowest mortality rate?
(v) Whether the negligence was so manifest and demonstrative that no professional or skilled person in his ordinary senses and prudence could have indulged in?
(vi) Everything being in place, what was the main cause of injury or death. Whether the cause was the direct result of the deficiency in the treatment and medication?
(vii) Whether the injury or death was the result of administrative deficiency or post-operative or condition environment-oriented deficiency?
References :-
(i) Bolams case reported in (1957) 2 AII ER 118, 121 D-F
(ii) Sidway V. Bethlem Royal Hospital Governors and Others 643 All England Law Reprots (1985) 1 All ER.
(iii) Maynard V. West Midlands Regional Health Authority 635 All England Law Reports (1985) 1 All ER.
(iv) Whitehouse V. Jordan and Another 650 All England Law Reports (1980) 1 All ER.
(v) Indian Medical Association Vs. V.P. Shantha & Others (1995) 6 SCC 651.
(vi) Jacob Matthew Vs. State of Punjab and Another (2005) SCC (Crl.) 1369.
16. According to the complainant he visited OP No.1 on 6th 7th 8th and 10th August and molar was extracted on 6th. However on 8th August 1998 the complainant complained of extreme pain in his jaws, leaving aside earlier complaints on phone to the OP no.1. By that time the complainant had developed lot of swelling on his cheek and on 10th August 1998 he again visited OP No.1 in Hospital but OP informed him that there was nothing wrong in the treatment and when the complainant told her that she shall be compelled to initiate legal assistance she got angry and threatened that she will then reply in the court that the same swelling has happened due to the negligence of the complainant as he had fallen down.
17. However, in view of the aforesaid facts the limited negligence on the part of OP No.1 was that she did not examine the complainant on 8th August, 1998 and 10th August, 1998 by taking X-ray so as to rule out fracture of the right molar which according to her was a likely complication. Had she taken X-ray on that date the complainant would have been saved from the agony and pain and subsequent operation on 13-08-1998. In any case even if fracture would have been detected which was likely complication the complainant would have been given treatment for the fracture but this was delayed by three days.
18. In our view a lumpsum compensation as to the expenses incurred by the complainant amounting to Rs. 10,000/- would meet the ends of justice and this amount shall be paid jointly and severally by the OPs.
However, the first charge of the compensation will be of OP No.3 the Insurance Company with whom the OP No.1 and 2 insured themselves for medical perils.
19. Complaint in dispose7d of in aforesaid terms.
20. Payment shall be made within one month from the date of receipt of this order.
21. A copy of the order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to record room.
22. Announced on 11th March, 2008.
(Justice J.D. Kapoor) President (Rumnita Mittal) Member jj