IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, KOTTAYAM
Dated this the 30thday of September, 2021
Present: Sri. Manulal V.S. President
Smt. Bindhu R, Member
Sri. K.M. Anto, Member
C C No. 290/2015 (filed on 21-10-2015)
Petitioner : Saimol Mathew,
W/o. Mathew,
Achickal House,
Monippally P.O.
Kottayam – 686636.
(Adv. ZakhierHuzzain and
Adv. Nazeera K.N.)
Vs.
Opposite Parties : 1) The Medical Director,
M.U.M. Hospital,
Monippally P.O.
Kottayam – 686636.
2) Sr. Dr. Riya,
M.U.M. Hospital,
Monippally P.O.
Kottayam – 686636.
3) Dr. Eldhos,
Facio Maxillary Department,
Matha Hospital,
Thellakom P.O.
Kottayam – 686 630.
(For Op1 to 3, Adv. ShyamPadman
andAdv. M.C. Suresh)
O R D E R
Smt. Bindhu R, Member
The brief of the complainant’s case is as follows.
The complaint is as follows:
The complainant approached the 1stopposite party hospital on 10/08/2015
due to severe tooth pain as outpatient with an outpatient ticket no 963.Thesecond opposite party after examination suggested to extract a tooth on theupper jaw. After the extraction of the same the 2ndopposite party stitched theconsequential fistula. Even after the said procedure, the complainant did nothave any relief of pain. So she again approached the hospital on the next dayand the hospital authorities called the third opposite party to the hospital andhe repaired the fistula and suggested to start antibiotics. But this also had noresult. The complaint of pain was not attended to by the opposite parties. Thecomplainant developed puss and severe pain in her nose. So she approachedSushrusha hospital at Kozha on 19/08/2015 and the doctors there examinedher and analysed that there was an infection at sinus cavity and advisedantibiotics. They advised to remove the stitches were it was done. Hence thecomplainant approached the opposite party and removed the stitches. Theyadvised to take steam inhalation and mouth gargling.Since there was no reliefof pain complainant approached ENT specialist at Sushrusha Hospital. Theytook CT scan and referred the complainant to Kollencheri MOSC medicalcollege hospital where a detailed examination was done and found that theextracted tooth was in the sinus cavity. There she had undergone a surgery atMaxilla sinus and took the extracted tooth which was in the sinus cavity. Shehad undergone the surgery under general anaesthesia. The mishap occurreddue to the negligence and deficiency in service on the part of the oppositeparties. Due to the infection the complainant had to loose her eye sight, intakeof solid food, suffer severe mental and financial pain. She had to engage a
servant for salary to look after her daily homely affairs as she fell ill. So the
complainant is entitled for compensation.
Upon notice, the opposite partiesappeared before this commission and filed version.
The opposite parties contented that the complaint has been filed without anybonafides. The complainant was examined and treated throughout by theopposite parties and the doctors and other staff attached to the clinic as perthe universally accepted standard dental protocol, bestowing all care, cautionand attention. The complainant claims to have undergone treatment fromdifferent hospitals and under different doctors. The said treatment records anddocuments of the alleged further treatment and expert opinion, if any,obtained by the complainant ought to have been produced along with thecomplaint and furnished to the opposite parties. The documents seenproduced along with the complaint, the copy of which are not furnished to theopposite parties, are not admitted to be true. No notice was issued to theopposite parties prior to the institution of the complaint. The 1stoppositeparty is a well equipped general Hospital having departments in generalmedicine, general surgery, pediatric medicine, gynaecology, orthopaedicsurgery and dentistry. The department of dental surgery is well equipped withstate of the art dental equipment including dental radiology. There are visitingconsultants in other specialities as well. The hospital has all the infrastructureand various medical departments with well qualified doctors. The 2ndoppositeparty is a well qualified and well experienced dental surgeon whereas the 3rdopposite party is a well qualified and experienced maxillofacial surgeon havingexpertise in his area of specialization.
The complainant was having regular consultations with the different specialtiesof the 1st opposite party hospital from 2006 onwards. The complainant came tothe outpatient department of the 1stopposite party hospital on 5.8.2015 with arequest for dental consultation. The complainant was attended to by the 2ndopposite party. The complainant had pain in the upper left back region and on
examination deep caries lesion of upper left first molar was found, and therewas pupal involvement. She had poor oral hygiene. The 2ndopposite party inthe background of the clinical findings suggested root canal treatment topreserve the same or in the alternative extraction of the offending tooth. Thecomplainant was given requisite antibiotic coverage and was advised to comeafter five days facilitating the infection to subside. The complainant nextreported on 10.08.2015 and wanted extraction of the offending tooth whichwas done under local anaesthesia, but during the procedure the toothfractured, may be on account of the deep caries, and the fractured crowncame off leaving behind the remaining tooth in the socket. The root wasattempted to be extracted by hemi section. The 2ndopposite party removedthe root in fragments but suspected a missing mesial root with oroantralcommunication. A dental X ray was advised and the intra oral peri apical x raysuggested breach in the sinus floor. No root fragment was noted. As the 2ndopposite party still suspected missing root in the maxillary sinus, the
complainant was counseled regarding the missing root and orantralcommunication. The 2ndopposite party had also contacted the 3rdoppositeparty who was the visiting maxillofacial surgeon of the hospital. He suggestedto put suture tightly and agreed to see the patient the next day. The 2ndopposite party had prescribed abtibotics, analgesic and antacids, and advisedthe complainant to come for a review and consultation with the 3rdoppositeparty the next day. On 11.08.2015 the complainant was examined by the 3rdopposite party in the 1st opposite party hospital. On examination it was foundthat there was orantral communication and the IOPA suggestive of breach inthe floor of the maxillary sinus with no evidence of any tooth fragment. The 3rdopposite party suggested primary closure of orantral fistula with Buccal Flap.He also advised Ortho Pantamo Gram or Computer Tomogram to ascertainwhether any remnant of root fragment is present in the sinus if any symptomoccurs. The complainant was briefed to return if there was any dischargethrough nose or throat. The complainant was prescribed Betadine mouth washand Nasion nasal drops. Thereafter the complainant came on 22.08.2015 forsuture removal. The wound was healing and the complainant wasasymptomatic. The suture was removed and the complainant was advised toreview in the Dental OP if there was any symptoms of chronic sinusitis etc.
Thereafter the complainant has not come for any review or consultation till
12.09.2015. On 12.09.15 the complainant came with complaints of pussdischarge from the throat. It was also reported that she had an ENTconsultation in the meanwhile elsewhere, and the CT report taken during thesaid consultation was also brought which suggested tooth like structure in theleft maxillary sinus. The 2ndopposite party examined the complainant and itwas found that the extraction socket was completely healed, and there was nopuss discharge. The 3rdopposite party was informed about this and herequested the 2nd opposite party to instruct the complainant to come to Matha Hospitalwhich is a higher centre, with the CT film for further evaluation and treatment.
Though the complainant was duly intimated about the above fact she never
turned up for further evaluation or treatment as advised .It was later intimatedthat she was further treated in MOSC medical college hospital, Kolenchery asshe wanted to avail benefits under the ECHS scheme, which facility was notavailable either at the 1stopposite party or at Matha Hospital. Had thecomplainant turned for further evaluation and treatment, the same treatmentprotocol would have been followed by the 3rdopposite party.
Fracture of tooth having deep caries is a well documented and acceptedcomplication of extraction, which can occur in spite of best care, caution andattention on the part of the extracting dental surgeon. Oroantral fistula canoccur if the sinus floor is too low or presence of periapical infection or cyst. Thecomplainant was advised OPG or CT to find out if any root fragment dislodgedinto the maxillary sinus, but the same was not done by the complainant. It wasonly done after the ENT consultation elsewhere, and upon finding that therewas tooth like structure in the maxillary sinus, though advised to come for
further evaluation ad management, the complainant never turned up. Therewas absolutely no negligence, carelessness or deficiency in service on the partof the opposite parties. All the allegations of negligence and the statements ofconsequential grievances the complainant had to suffer are not true and hence
the complainant is not entitled to any of the reliefs claimed. There is no cause
of action for the complaint and hence the complaint is liable to be dismissed.
The evidence part of the complaint consists of Exbit A1 to A12 and depositionof PW1 and PW2 from the side of the complainant and Exhibit B1 and
deposition of DW1 to 3 from the side of the opposite parties. The hospitalrecords produced by Sushrusha Hospital,Kozha is marked as Exhibit X1 and therecords of MOSC Medical college is marked as Exhibit X2. The extracted toothfragment is marked as MO 1.
On a detailed examination of the evidence and pleading we would like to
frame the following issues:
1. Whether there is any deficiency on the part of the opposite parties?
2. If so, what are the reliefs the complainant is entitled to?
Issue No 1.
1. The complainant’s allegation is that she approached the 1stoppositeparty hospital for a dental treatment and 2ndand 3rdopposite partiestreated her by extracting one tooth in which a tooth fragment gotlaunched in her maxillary sinus about which the opposite parties did notinform the complainant. As she was not informed of the possibility ofsuch a fragment launch in the maxillary sinus, the complainant tooktreatment of ENT. Subsequently the complainant developed maxillarysinusitis and had to undergo surgery for removing the tooth fragment
lodged in the maxillary sinus. According to her she is continuing thetreatment till now only because of the negligence of the opposite partyin giving proper treatment to her.
2. The opposite party defended the allegations contenting that the lodging of toothparticle in the maxillary sinus is a possible outcome of some toothextractions in which the extracting tooth is decayed or having deepcarries. Only if some infections developed, the fragment need to beremoved otherwise normal practice is to leave it as it is. Moreover, thecomplainant was asked to visit the 3rdopposite party in Matha Hospitalwhere he would do the further treatment. But the complainant did notturn up. So it was not the mistake of the opposite parties.
3. The counsel for the complainant put forward the argument that theopposite party did not take consent before the extraction of tooth. Thecounsel denies the Exhibit B1 as there is no signature of the complainantand challenges its genuinity.
4. As per Exhibit B1, the complainant was counselled on 10/8/15 whichis denied by the complainant. No such counselling was given. According tothe counsel, the complainant being a nurse, would have taken propertreatment if she would have been intimated about the lodging of tooth fragmentin the sinus cavity, she would have suggested to remove the same andwould not have gone for an ENT consultation.
5. The counsel for the complainant further argued that DW3, the expertwas an interested witness as he was a member of IDA. He deposed thatthe tooth fragment in the maxillary sinus is not a foreign body and thetreatment in X1 and X2 were independent of the procedure done inExibit B1. But in cross examination DW3 deposed that it was to thedecision of the patient whether the fragment to be in her maxillary sinusor not.
6. The counsel of the complainant relies on the text book of Oral and Maxillo Facial Surgery byS.M. Balaji, which explains the management of displaced tooth or fragment ofa tooth root. It suggests that apart from Intra Radiograph, UpperocclusalPNS view can also be used and it can be managed as follows.
1.Take Powerfull suction kept at the entrance of the fistula and the root recovered.
2. If the tooth is lying loose in the antrum, it can be removed by packing roller gauze and withdrawing in a jerky motion.
3. Surgical approach (Caldwell-Luc operation). Saline is continuously irrigated into the sinus through the window created by the Caldwell-Luc procedure.
(emphasis supplied)
7. The counsel concludes that the opposite parties did not take adequatemeasures to find out the missing tooth fragment by adapting acceptedmode of treatment.
8. The counsel for the opposite parties vehemently argued that there wasno negligence on the part of the opposite parties as they had actedaccording to the accepted medical practice. The accepted protocol whena tooth fragment got lodged in the maxillary sinus is not to disturb ituntil and unless it gets infected. The counsel argued that thecomplainant had previous illness as per the treatment records and thesinusitis occurred consequential to the tooth extraction might have been caused because of the said comorbidities of the complainant.
Heard both parties in detail.
9. The complainants allegation of negligence is that the lack of intimationof the risk and situation to the complainant and that the non-giving ofproper treatment for the removal of the tooth fragment. According tothe opposite parties the complainant’s tooth was extracted on 10.8.15. On11.08.2015 the complainant was examined by the 3rd opposite party and oroantralfistula was closed with buccal flap. The 3rdopposite party took the IOPA testinstead of OPG and no root fragment was seen.
10. Here the OP was supposed to conduct OPG for a clear evaluation. FromExhbit B1, it is seen that on 10.8.15 the patient was counselled regardingthe missing root and oroantral communication. On 11.8.2015, again theopposite parties gave an instruction that if any symptoms occur, OPG/ orCT should be taken and again on 22/8/2015 she was advised that anysymptoms like chronic sinusitis etc. occur review in dental OP.
11. From the recordings of Exhibit B1, we infer that the patient was sufficiently
advised by the 2ndand 3rd opposite parties to follow up with the dental treatment if anysymptoms occur. The complainant being an educated patient especiallyworking as a nurse in the health department itself and not a layman, shouldhave understood the procedure and the advise of the doctors. Later whenshe had the puss and pain, in the oral region, she ought to haveapproached her dental doctor first and only after that if they werereluctant to treat or if there occurred any dereliction, she could allegenegligence.
12. Moreover, from the text books and from the deposition of the expertdoctor, it is clear that lodging of a root fragment in the sinus cavity is notdue to negligence but it is a possible mishap in the event of extraction ofdecayed tooth. But the doctor is duty bound to inform the complainantabout this and its consequences. A root fragment in the maxillary sinus isalways prone to cause infection and the same is to be removed. As theremoval of the root fragment if any in the maxillary sinus is a complicatedprocedure, the accepted practice is to keep it undisturbed until and unlessit causes infection.
13. Here as per Exibit B1, on 10.8.15 the patient was counselled regarding the
missing root and oroantral communication and advised to consult with opposite party 3, who is a maxillofacial surgeon on the next day itself. On 11. 8. 15,
opposite party 3 advised to take OPG or CT if any symptom occurs. So it is seen thatthough an accidental incident has happened, opposite party 2 and opposite party 3 have advised thecomplainant properly.
14. The complainant being a staff nurse, working abroad is expected to have
ample knowledge to presume that the pain and puzz caused might be inconnection with the tooth extraction. Moreover the 3rdopposite party hadadvised that if some problem occurred, she should take OPG or CT and visitthe 3rdopposite party. Again, when she visited the 3rd opposite party, she did not turn up the nextday as per his advice for further treatment.
15. The complainant’s main allegation is that if she would have known thatthe root fragment was inside the maxillary cavity, she would not have beenapproached an ENT specialist but would have approached the oppositeparties.
16. Here, considering the status of the complainant we understand thatthe complainant was a staff nurse working abroad at the time of toothextraction who is supposedly knowing the medical terms and conditionsthan a layman. So admittedly she was told that a root fragment wasmissing after the extraction by the 2ndopposite party. In her deposition thePW1, complainant deposed that “Fs´-¦nepw \ne¡vdischarge ]Ãn \n¶pwh¶mÂHospital hcWwF¶v ]dªvhn«p. thZ\ Ipd-bm-¯-Im-cWwphone sNbvXp. At¸mÄHcpZnh-kw-IqSnantibiotic Ign-¡m³ ]d-ªp. ]ns¶ thZ\ FÃmwIpd-ªp”
17. The complainant came to the op hospital on 22.8.15 for removing thestitch. She herself deposed that 2nd opposite party took XRay and consulted with the 3rd opposite party in continuation of thetreatment of the breakage of the tooth. Again she had deposed that the opposite parties did ask her to visit opposite party in Matha hospital but as she washaving ESI coverage and Matha Hospital was not an ESI affiliated hospital,she preferred KolencheryMOSC .
Her further deposition “12.9.2015\mWvCT Scan report Hs¡-bmbnOP bn t]mb-Xv. Stitch remove Bbnwound heal Bbn-cp¶pAt¸m-tg¡pwthZ-\sbÃmwamdn-bn-cp-¶p At¸m-tg-¡pw. ]ÃnsâHcp `mKwsinus cavity bnÂDv F¶-XvsImv am{X-amWvnegligence DvF¶v ]d-ª-Xv. (Qn) icn-bm-Wv.”(A).
18. On examining the deposition of PW2,who is the HOD of theMaxillofacial department, MOSC, Kolencherry in cross examination hecategorically states that “I agree with the statement that whatever done bythe opposite parties was the appropriate treatment and procedure at thatstage and there is no indication of any negligence or carelessness on thepart of the opposite party. What is seen done in exhibit X2,which is thetreatment history of the patient in MOSC is the appropriate treatmentand management to be done at that stage. Exhibit A4, scan report orExhibit X2 do not indicate any negligence or carelessness from the part ofthe Opposite party.”
19. DW3, who is a qualified maxillofacial surgeon was examined as theexpert witness and he deposed that as per practice, in case a toothfragment is lodged in the sinus, it need not cause any complications unlessinfected and attempts to remove such fragments are made only if it isstrongly indicated. The complainant went to a third hospital where thesame management was done which was advised by the opposite parties.He has stated in cross examination that “it is the decision of the patient todecide whether a fractured tooth to be in her maxillary sinus or not? (Q)Yes (A). “If OPG was taken on the date of extraction, the fractured tooth inthe maxillary sinus could be seen (Q) Need not be seen (A)”.
Further the doctor has deposed that no negligence could be seen from any
of the documents shown to him as it is seen that the opposite parties havefollowed the accepted protocol in the treatment.
So the only allegation of negligence is that a tooth fragment was lodged in
the sinus cavity which was known to her only after seeing the CT Scanreport.
20. In KesavRao V Yadavvs.Dr.J V S Vidyasagar&others 2021 (CPR)701 TheHon’ble Supreme court held that
“30. The four Dof medical negligence are duty, dereliction(breach), direct cause (causacausens) and damages. Each ofthese four elements must be proved to have been present, based on apreponderance of the evidence, for negligence to be found. Nevertheless, asimple lack of care, an error of judgment or an accident is not a proof ofnegligence on the part of doctor. So long as the doctors follow a practiceacceptable to the profession on that day he can’t be held liable fornegligence merely because a better alternative course of treatment wasavailable or a more skilled doctor would not have chosen to follow orresort to that practice which the accused followed.”
21. So as per the settled law and text books, we do not find any negligenceon the part of the opposite parties in not removing the root particle whichgot lodged in the maxillary cavity. The accepted protocol is to keep thefragment intact until and unless it gets infected. The opposite parties alsohad done according to this practice and the patient was advised to return ifthere occurred any pain or puss. Subsequently when the pain started thepatient ought to have returned to the opposite party 2. Instead she consulted withsome ENT specialist. Later when the complainant visited the 2nd opposite party andconsulted by the 3rd opposite party she was advised to return on the next day forfurther treatment though in another hospital. The complainant has failedto prove that the opposite party has committed gross negligence in their treatment and the grievances caused by her are directly due to thenegligence in the treatment committed by the opposite parties.
Hence in the light of above discussed evidence and decisions, we dismiss
the complaint.
Pronounced in the Open Commission on this the 30th day of September, 2021.
Smt. Bindhu R, Member Sd/-
Sri. Manulal V.S. President Sd/-
Sri. K.M. Anto, Member Sd/-
Appendix
Witness from the side of complainant.
Pw1 – Saimol Mathew
Pw2 –Prof. Suresh V.
Witness from the side of opposite party
Dw1 – Sr. Dr.Riya
Dw2 – Dr. Eldhose K. George
Dw3 –Dr. P.G. Antony.
Exhibits marked from the side of complainant
A1 – O.P ticket (No.963) issued by 1st opposite party
A2 – Registration card (1432643/15-09-2015) issued by MUM Hospital
A3 – OP. ticket dtd.19-08-15 (No.3567/15) by Sushrusha hospital, Kozha
A4 – Scan report of petitioner dtd.11-09-15 from Life Scan
A5 – discharge bill dtd.22-09-15 for Rs.41,990/- from M.O.S.C. Hospital,
Kolancherry
A6- Cash bill for Rs.2,300/- dtd.11-09-2015 from Life Scan
A7 – Copy of certificate from M.O.S.C. Hospital
A8 – Copy of discharge summary dtd.22-09-15 from M.O.S.C. Hospital
A9 – Certificate dtd. 12-09-15 from Sushrusha hospital
A10 – Bills form MOSC hospital
A11 – Bill dtd.13-08-15 for Rs.121 issued by MUM Hospital
A12 – Copy of standing disability assessment board certificate of Albin Mathew
dtd.16-03-2011from Govt. Medical College Hospital, Kottayam.
Exhibits marked from the side of opposite party
B1 –Treatment records of petitioner from M.U.M. Hospital,
Court Ext.
X1 – Copy of treatment record of petitioner from Sushrusha Hospital, Kozha.
X2 –Treatment records from Malankara Orthodox Syrian Church Medical
College &Hospital, Kolenchery.
By Order
Senior Superintendent
