DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II

Udyog Sadan, C-22 & 23, Qutub Institutional Area

(Behind Qutub Hotel), New Delhi- 110016

Case No.136/2016

Mrs. Yeesha Zia

New Sir Syed Nagar

4/11 83C Madina Manzil

Aligarh,UP.                                                …Complainant

Dr. Hitesh Arora (BDS, MDS)

DEWTELLE

I-45, Lajpat Nagar-III

New Delhi-110024.                                            ….Opposite Party

Date of Institution:                  11.05.2016

               Date of order:                  20.05.2022      

ORDER

Member: Sh. U.K. Tyagi

       Complainant has requested for passing an award of Rs.10 Lakhs as compensation from Dr.Hitesh (hereinafter referred to as OP) exclusive of all the charges of re-operation of the complainant be incurred by Dr. Hitesh.   

          Brief facts as contended by the complainant of the case are as under:-

The complainant contacted Dr. Hitesh Clinic at Lajpat Nagar, New Delhi, She further averred that Rs.20,000/- in cash was given to OP on 23.3.2014 for fitment of implant and other densitry and Rs.8000/- was to be given on 16^th November 2014.  The complainant was first operated by the OP and Rs.20,000/- was charged as fee for which no receipt was given.  The complainant was rescheduled in next seating of treatment on 21.9.2014.  On 21.9.2014, OP told the complainant that he will be putting an angulated abutment but instead of it, he placed a straight abutment.  The OP also stated that the implant of (Ostem) Company was used.  The OP also tried to fix the screw with implant but it could not be fit in.  The complainant was of the view that had the implant and screw been of the same kit, it would have fitted easily.  In this process, the complainant gum were also got cut and left open.  Meanwhile, OP removed abutment and drilled in such a manner so that implant could not be identified.  As a result of which, implant got loose. When the complainant encountered the OP as to why implant was not fixed, the OP stated that he was doing the procedure correctly and not to ask questions.  The OP also assured that implant is original and it would have fitted by now.  OP also started making excuses and process was called off for another date. 

          OP also promised that tooth will be 100% symmetrical with other teeth. The complainant further alleged that the OP played fraud on us by providing surety and guarantee that this abutment, implant and treatment shall be of lifetime guarantee.  As and when, the complainant tried to contact OP for completion of remaining operation, he refused to complete the treatment and told straight forward to consult someone else. On his denial, the complainant went to the Dental College, AMU, Aligarh where they consulted dentist-implantologist. After examination, the dentist said that the implant is faulty one and refused to handle the case and advised to return to the same dentist i.e. OP.  After convincing the OP, the complainant went for third seating for procedure on 16^th November 2014. During re-operation, same problems came up and the implant could not be fitted and after devising several ways. Ultimately, it fitted in but the tooth which he fitted was of yellow, large in size and protruding, thus, spoiling the shape of the mouth of the complainant as could be seen in the picture annexed under evidence.  On this, the OP charged Rs.8000 /- extra which the complainant withdrew from ATM nearby Lajpat Nagar.  When attention of the OP was invited to this big ugly implant, he assured to come up for another seating and asked us to go back to Aligarh.  After the three days, the complainant requested OP for completion of the Operation. At this, the OP vehemently refused to complete.  In the absence of any response from the response from the OP, on 26.4.2016 a notice through Regd. Post was sent to OP.  Due to this incomplete process and faulty implant as per report of Dental College of Aligarh the complainant i.e.Yeesha Zia experienced multiple problems.  As a whole, complainant states that the OP is liable for compensation for the following issues:-

1. Incomplete procedure till date the patient is suffering non-stop for more than 3 years now.
2. Lack of symmetry, ugly looking, protruding crown
3. The crown is struck wit the screw that has been dislocated and dislodged from the implant embedded inside the gum.
4. Wilful fault, imperfection, shortcoming and  the inadequacy in the service of the respondent.
5. In support, the treatment card of AMU dental and Hindu Rao Dental Hospital is attached. Majority of evidences have already been submitted including correspondence via text messages between patient and the doctor. Audio records, wherein he refused to complete the procedure.

The complainant has also got audio recording of the third seating where Dr. –OP is caught saying that “he will not complete the procedure as his work is done and further stated that the rest of the work shall be completed by Mr. Mujahid lab boy.  Thereafter Mr.Mujahid also refused by stating that he is not a doctor and he can make tooth. Fitting and finishing is the work of the dentist.

As stated earlier AMU Dental College had observed that prosthostating is loose and dislodged. Associate Professor, Dr.Abhinav Gupta of the Prosthodontics department observed  the procedure is incomplete.  He further advised alternative i.e. FPD/RPD or best possible correct may be carried out. Dr. J. S. Karnwal of the Hindu Rao Hospital his findings states that the faulty implant prosthesis of the concerned tooth i.e. smiling tooth.

OP, on the other hand, took the preliminary objections/submissions:-

The complaint is time barred hence liable to be dismissed on this ground only as treatment was done in 2014 and case was filed in August 2016.  The OP has placed more than one thousand implants on different patients and all of them are satisfied with the work of OP, whereas as advised by OP, the complainant has not taken any precautionary steps after implant. The OP also averred that costing of implant was done in March 2014 was of 25,000/- for which she gave only Rs.20,000/-.  And remaining 5000 was to be paid along with the price of the cap of Rs. 3000/-.  Out of total amount of Rs. 28000/- the complainant paid Rs.20000/- only. The OP also denied averments of complainant to this effect that she herself asked the OP as to whether the remaining treatment could be carried on in Aligarh itself as the complainant could not come to Delhi time and again.  Therefore, the OP advises her to approach an implantonist in Aligarh and she further contacted the OP and told that she is not satisfied with the dentist in Aligarh and would like to come back Delhi for further treatment. Therefore, the allegations made out in the present complaint are totally baseless and bald. The OP also averred that the implant   was of Ostem Company if the implant is not found of that company, the OP would give complainant any cost.  As was stated earlier, this process of prosthodontics is done in two parts and surgeon have to give incision in the gums under local anesthesia so as to expose the implant and put the abutment, OP further stated that and  angulated abutment was performed on the complainant.  The same steps are performed by every dentist in two seating in implantations.  It is also relevant to mention here that none of the hospital or dental college mention that the Ostem implant is faulty or not original.  The patient is still holding the same implant performed by the OP till date.  This clearly shows that the treatment performed was correct has not caused any permanent physical or medical deformity to the complainant.

In view of the above narration, it is stated that the present complaint is false, frivolous and misconceived therefore liable to be dismissed.

This Commission vide its order dated 16.12.2016 noted that “OP has not filed the written statement so far.  The statutory period of 45 days for filing the same has already expired. Therefore we struck off defenceof the OP”.  However, it is noticed that the complainant was offered the amount of Rs.50000 by the OP towards full and final settlement which was not found acceptable to the complainant.

It is also noticed that written petition in the Hon’ble High Court was also filed challenging the order of this court for striking off the written statement of OP.  The Hon’ble High Court citing the judgment of the Hon’ble Supreme Court in the case New India Assurance Company  Ltd. Vs. Hilli Multipurpose  Cold Storage Pvt. Ltd. held that wherein no amount of the time can be given beyond 45 days for filing of written statement. Meanwhile, the complainant also filed writ petition in Hon’ble High Court.  Hon’ble High Court while disposing the W.P. stated “that it is open for the petitioner to make appropriate request for conclusion of hearing before District Consumer Disputes Redressal Forum-II and it is expected that petitioners request would be entertained and no further adjournment would be granted to the parties”.

The complainant filed written submission as well as evidence in-affidavit alongwith certificate of 65B of Indian Evidence Act for Whatsapp message. The defence of the OP was struck off. Oral arguments were heard and concluded.

This Commission has gone into the material placed before us and arguments so made, were also taken into account.  The complainant while addressing the arguments/written submission placed reliance on the whatsApp message, observation of the Hindu Rao Hospital and RZA Dental College and Hospital AMU, Aligarh.  This Commission also looked into these documents which indicate the completion of process by the OP who put the implant.  It is difficult to appreciate and ascertain the degree of veracity of averments/contentions/assertions of the parties in the absence of documents/evidences of the OP.  Since, as stated above, defence of the OP was struck off.  Hence whatever, documents/evidence available before us are of the complainant to be considered. However, during the oral arguments the counsel for OP was allowed to address the arguments.  It was also averred by the complainant that the OP rendered absolute assurance of the body and health safety.  It was also contended that the complainant was ill-advised to cut sutures and pull them out herself.  Excruciating pain was also experienced on wearing off the effect of anaesthesia.  The complainant also placed reliance on the following judgments of the apex court/High Courts.

1. State of Haryana Vs. Smt. Santra  (2000)SCC182 AIR 2000 SC3335 where it is held that “the duly to act with a reasonable degree of care and skill” further referring the case Bolam Vs. Triern Hospital Management Committee (1957)2 ALLER 118 MC Nair “Negligence means failure to act in accordance with the standard of reasonable competent men at time”.
2. Dr. Laxman Balakrishna Joshi Vs. Dr. Trimbak Bapu Godbole & anr. AIR 1969 SC 128 and A.S. Mittal Vs. State of U.P. AIR1989 SC 1570 Doctor owes three main duties.  

OP can be reasonably held for lack of duty in view of above criteria as he suggested to cut sutures and pull them out by herself.

1. a duty of care in deciding whether to undertake the case

(ii) a duty of care in deciding what treatment to give;

(iii) a duty of care in the administration of that treatment.

OP can be reasonably held for lack of duty in view of above criteria as he suggested to cut sutures and pull them out by herself.

The complainant also refer the Principle of res ipsa loquitur  where no proof of negligence is requested where facts are sufficient.  This Commission is also aware that the Hon’ble Supreme Court in Jacob Mathew (DR) Vs. State of Punjab (2005)III CPJ9(SC) while dealing the issues of medical negligence, laid down principles on which the liability of medical professional is to be determined – “The essential composition of negligence are three – duty, breach and resulting damage”.

3. Negligence on the part of medical professional call for a treatment with difference.  To infer rashness or negligence of a professional, in particular a doctor, additional considerations apply. So long doctor follows a practice acceptable to the medical professional of that day, he can’t be held liable for negligence merely because a better alternative course or method of treatment was available.   The Hon’ble Supreme Court further laid down principle for determining the medical negligence in Kusum Sharma Vs. Batra Hospital & Medical Research Centre and laid emphasis that “negligence cannot be attributed to a doctor so long as he performs his duties with reasonable skill and competence”.     

In nutshell, this Commission noted with great care that the complainant has primarily alleged that the OP doctor has:-

1. put the implant of another company which could not be fitted into with screw.  Had both the implant and screw would have been of same kit, it could have fitted.
2. Angulated abutment was not used instead used straight abutment.
3. Faulty implant prosthesis of the concerned tooth.

It would be seen from the narration and various guidelines issued by Hon’ble Supreme Court in case of medical negligence that there may be not 100% fitment of implant as assured by the OP doctor.  It is also true that the doctor was in contact as is established from the long WhatsApp messages.  It cannot be said that OP doctor was squarely responsible. We can also understand that the OP doctor had advised the complainant to cut the sutures and pull them out.  The same resulted in heavy pain.  In all The OP doctor can be assigned some degree of negligence. It is also noted with alacrity that the complainant not led any evidence establishing that the faulty (implant) was got replaced by her. It is also noted from the orders dated 24.4.2017 of this Commission that OP had offered Rs.50,000/- towards full and final settlement

Considering the narrations, facts and circumstances of the case, and respectfully following the ratios and principle laid down by the Apex Court in various cases of medical negligence, this Commission feels that the OP is found deficient in service to some extent.  The whole blame cannot be laid squarely at the door of OP-clinic.  Hence on our prudence, we direct the OP to pay Rs.50,000/- alongwith interest @6% p.a. from the institution of the case only as compensation within two months from the date of this order failing which the interest @9% p.a. shall be charged till its realisation. 

File be consigned to the record room after giving copy of the order to the parties. Order be uploaded on the website.