DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II
Udyog Sadan, C-22 & 23, Qutub Institutional Area
(Behind Qutub Hotel), New Delhi- 110016
Case No.307/17
Mr. Gaurav Bish S/o Shri Prem Singh Bisht
C-3/324, Lodhi Colony
New Delhi-110003. .…Complainant
VERSUS
Dr. Ravinder Dhankhar
Jr. Staff Surgeon (Dental)
CGHS Specialist Wing
VMMC & Safdarjung Hospital
New Delhi-110029.
Chief Medical Officer
& Officer Incharge
CGHS Specialist Wing
VMMC & Safdarjung Hospital
New Delhi-110029. ….Opposite Party
Coram:
Ms. Monika A Srivastava, President
Ms. Kiran Kaushal, Member
Present: Complainant in person.
Present: None of OP.
ORDER
Date of Institution:30.08.2017
Date of Order :08.08.2024
President: Ms. Monika A Srivastava
Complainant has filed the present complaint seeking refund of Rs.80,000/- with interest 12% per annum from the date of receipt; Rs.19,00,000/- as damages/compensation for providing deficient services and causing mental agony, pain, suffering and Rs.20,000/- towards litigation expenses. OP-1 is Dr. Ravinder Dhankar and OP-2 is CMO, VMMC & Safdarjung Hospital.
- It is the case of the complainant that he visited Safdarjung Hospital on 07.12.2015 at CGHS Dental Wing as he was having pain in his mouth. The complainant was also carrying with him OPG as per the advice of the doctor when the complainant had earlier visited OP1. After examining the complainant, OP-1 advised extraction of wisdom tooth as the best treatment to the problem and fixed 11.12.2015 for extraction at 10.00AM.
- It is further stated that on the day of extraction 11.12.2015 OP-1 along with his assistant surgeon broke the jawbone of the complainant and the operation took more than five hours causing continuous pain and excessive bleeding from the mouth of the complainant. Father of the complainant was asked to pay Rs.500/- for bringing some dental implant and wires to be fixed in the mouth of the complainant stating that there are chances of crack in the jawbone area. The mouth of the complainant was closed by steel arch bar and wires.
- It is alleged by the complainant that OP-1 deliberately lost the OPG as well as diagnosis prescription of the complainant which was undersigned and attested by him and produced a new prescription of medicines without any diagnosis in the name of the father of the complainant.
- After reaching home, complainant realized that he was unable to open his mouth and that the mouth was bent and there was misalignment in the shape of his mouth because of shifting of jaw area. Complainant along with his father went to OP-2’s emergency at Maxillofacial department and met the doctor on duty at 11.45 PM and wherein it was informed that the jawbone has broken and has a Left Angle Mandibular fracture and the examining doctor was surprised at the cause of fracture i.e. extraction.
- It is further stated that on 14.12.2015, complaint was filed against OP-1, thereafter on the interference of CMO, OP-1 admitted the complainant to Centre for Dental Education and Research (CDER) at AIIMS on priority. It is stated that at AIIMS he had to undergo multiple painful tests on 15.12.2015 and on 16.12.2015 surgery was performed for treating Left Angle Mandibular fracture along with extraction of remaining wisdom tooth.
- It is stated that open reduction was done by approximating the ends of bone edges that were broken where an incision was made, the fracture was found and was physically manipulated into place by surgery.
- It is further stated that to provide stability to the bone formation and avoid further bending of jaws, a titanium plate was placed and screwed into the basal bones of the affected jaws with two titanium screws and then secured by wires known as maxillo mandibular fixation. Since the fracture was in the tooth bearing area there was also an urgent necessity of Indirect Skeltal Fixation procedure to prevent misalignment of patient’s teeth. For it, Circumdental wiring was done in which wire strands of 24-26 gauge were wrapped around each tooth of the mouth and was attached to stainless steel arch bars fixed both maxillary (upper) and mandibular (lower) parts of the mouth separately and was secured earlier with orthodontic bands and later wire loops.
- Since the bone was required to be relatively stable for at least a month to achieve fixation, hence the complainant was not able to open mouth and eat anything (even a loaf of bread) for more than one month i.e. 38 days and had to survive only on fluids and electrolytes comprising juice, milk and pulse water.
- It is further stated that from 17.12.2015 to 22.01.2016 complainant fainted twice due to weakness and pain in the affected part due to regeneration of inferior alveolar nerve running along the jaw that was obligatory to be cut to perform successful surgery, numbness in lips and chin with daily episodes of tremendous pain in the fractured region that was controlled by heavy dosage of analgesic and antibiotic medicines.
- It is further stated by the complainant that he was calm, conscious, alert person and was preparing for his SSC exam for an year and was on the way to attend one of its exams at Jodhpur, Rajasthan on 20.12.2015 and for which reason he had also reserved railway ticket however, due to act of OP-1 he is not medically fit to realise his goals in army or in para military forces.
- It is further stated that the complainant had to undergo another operation for getting the plate removed after waiting for a period of more than a year. It is stated that OP-1 has put the future of the complainant in dark and the complainant is still in deep pain on account of the act of OP-1.
- OP-1 in his reply, has stated that the complainant does not disclose any course of action against him. It is stated that the complaint has been filed with the ulterior motive to extort money which is evident from the fact that the complainant is seeking compensation of Rs.20 lakhs for which no plausible explanation has been provided.
- It is stated that the treatment provided to the complainant was as per standard medical practice and protocol. Neither OP-1 nor any treating doctors have committed any medical negligence. It is stated that the treating doctors have provided best possible medical care and treatment to the complainant as per settled and recognised treatment procedure. It is stated that the complication, that occurred while treating the complainant is a well-known complication and is not medical negligence.
- It is stated that the complainant along with his father visited Safdarjung Hospital on 07.12.2015 with complaint of pain in left lower back region of jaw. On X-ray OPG, it was found that he has an impacted wisdom tooth. OP-1 suggested extraction of wisdom tooth as one of the options among other treatment methods to alleviate his pain and suffering. Complainant and his father choose for extractions of wisdom tooth. OP-1 explained to them, the whole procedure and the complications and risk factors that may occur during the procedure. After complainant and his father consented for the procedure, an appointment of 11.12.2015 was fixed for the complainant.
- It is stated that on the day of appointment i.e. on 11.12.2015, OP-1 along with his colleague Dr. Kuldeep undertook the procedure. In the course of procedure, an increased mobility in his left lower jaw was observed. The procedure was immediately stopped and arch bar wires with Intermaxillary fixation were applied to stabilize his jaw as per protocol. The whole procedure was took approximately 2 hours and was done under local anesthesia. Complainant was totally conscious during whole procedure and his father was told to get arch bar wires for treatment.
- It is further submitted that on 14.12.2015, complainant and his father again visited CGHS Specialist wing Safdarjung Hospital and complained about further treatment not being given to them at Department of Maxillofacial Surgery, Safdarjung Hospital. After consultation with CMO in-charge Safdarjung CGHS Specialist wing, OP-1, personally took complainant to Department of Oral and Maxillofacial Surgery, CDER AIIMS New Delhi. It is stated that the doctors at CDER AIIMS suggested that Arch bar wires with Intermaxillary fixation are in itself sufficient enough to treat the condition but the complainant and his father insisted on immediate treatment so the complainant was admitted for further management. Admission notes of AIIMS are attached along with the reply.
- It is stated that the complainant is making false averments without any basis and that he is a known case of OCD (obsessive compulsive disorder) since five years and is taking medication for the same. It is further submitted that there was no negligence on part of the OP-1 for treatment of the complainant.
- In his rejoinder, complainant has stated that the reply filed by OP-1 is false, frivolous, vexatious, defamatory and misconceived. Complainant has mostly reiterated his averments made in the complaint and has stated that the negligence caused by OP-1 is grave medical negligence and cannot be called well known complication as claimed by OP-1 for the following reasons:-
- Damage was caused to jawbone and there was continuous having bleeding due to negligence.
- The treatment was not as per the established medical norms i.e, instead of removal of tooth bone was fractured
- The arch bars wire with intermaxilliary fixation were put inside the mouth without disclosing the need.
- Complainant’s father was asked to bring essential supplies or pay arch bar and wires.
- Prescription, test reports, discharge summary and receipts were not provided.
- It is stated that when the complainant visited OP-1 on 07.12.2015 OP-1 after examining the OPG of the complainant told him that extraction of wisdom teeth was the full and final best treatment of the complainant though other options/treatment were not explained to the complainant. It is further stated that OP-1 did not explain to the complainant, the procedure to be undertaken neither its complications and risk factors. Instead, complainant was assured of smooth procedure of extraction without any worry.
- It is further stated that complainant along with his father were never apprised the situation and the emergency which arose was not even referred to higher centre for further treatment. When complainant and his father visited OP-1 on 14.12.2018, OP-1 admitted his negligence and deeply apologised after giving assurance of proper treatment and due care but left the complainant and his father outside the Department of Maxillofacial surgery for them to take the appointment on their own at a time when the complainant was in unbearable pain having fractured jaw. Later on, on the direction of CMO, OP-1 was asked to take the complainant on his own to CDER, AIIMS on priority.
- It is claimed by the complainant in his rejoinder, that doctors on duty and other para medical staff at CDER, AIIMS had told the complainant that such kind of incident was rare. Accordingly, complainant was admitted and date of surgery was expedited. It is further alleged that it was found by AIIMS that arch bars were not fit properly and intermaxilliary fixation was wrongfully applied which further damaged the jawbone. Hence, it was removed on the same day.
- It is further stated that the portrayal of complainant being not of sound mind, insane, having poor sense, patient of OCD is only OP1’s way to bend true facts. It is further stated that OP-1 is making malicious statement with the intention of vilifying the complainant. It is further stated that even if the complainant is a patient of OCD that does not give OP-1 to give the liberty to be medically negligent.
- It is further clarified that complainant and his father since the day of the incident has never met OP-1 therefore, the accusation of threatening OP-1 of dire consequences, demanding money etc. are all fabricated.
Both the complainant as well as OP have filed their respective evidence affidavits. A report of an Enquiry Committee constituted by OP 2 hospital consisting of three members is a part of the record. The Enquiry Committee records that the complainant ceased to be a CGHS beneficiary on the date of surgery as he was 25 years one month 25 days and the prescription for medicines was made in the name of his father. Further, it is recorded that the patient and his father were verbally informed about the procedure and that the mandibular angle fracture occurred during the surgical extraction of mandibular third molar on left side and the father of the patient was informed about the incident. It is further recorded that OP-1 i.e. Dr. Ravinder Dhankhar tried to manage the fracture in CGHS Wing. It is further stated that as per the medical literature, fracture of mandible during extraction of mandibular third molar is known complication though rare.
OP 1 has also not been able to prove his case from the notes of AIIMS attached with the reply. Complainant has placed on record his entry ticket for SSB interview. Physically, Complainant is seen to have tilt in his face, deformity caused is visible.
- On the direction of this Commission, a medical board was constituted by the RML Hospital for opining on the medical treatment in the case. As per the said report:-
- The committee is of the opinion that Dr. Ravinder Dhankar was the primary surgeon who was assisted by Dr. Kuldeep Jangra (Testimony Dr. Ravinder, Dr. Gyanender, Mr Gaurav Bisht, Mr. Dilawar however, Dr. Kuldeep denied his involvement during surgery and it was supported by Dr. Ankita as well)
- The complication like mandible fracture which happened during third molar surgery is known but rare as per literature.
- During the 3rd molar surgery, Dr. Dhankar suspected fracture of jaw bone by clinical assessment. He informed his father that there are chance of crack in the jawbone and asked him to get an arch bar and wires. The procedure of extraction of tooth was stalled and Dr. Dhankar along with Dr. Gyanender (Senior Resident) started treatment for the fracture mandible i.e. IMF (intermaxillary fixation). However, Dr. Gyanender has stated that he was told to do IMF in fracture case by Dr. Ravinder and was not told about cause of jaw fracture. Meanwhile, no radiological investigation was carried out on that day by them.
- The committee also observed that the pre op. OPG E-ray was OPD slip was lost somewhere during the process. However, Dr. Dhankar made a selfmade prescription in the name of the patient’s father to give medicine to the patient which was unwarranted.
- On clinical examination, the fractured bone of the patient has healed and is functioning well.
- During the course of examination Mr. Gaurav Bisht revealed that he is undergoing treatment for psychiatric illness of Obsessive Compulsive Disorder which was diagnosed before the Dental Procedure. This disease has no dental implication in dental extraction.
- As per the testimony of Dr. Ankita Chandra (Dental OPD incharge/Acting HoD on the day of surgery) she was not informed about the complication. Also, Senior Resident who was told to do/assist in IMF was not told about the cause of the fracture.
In the light of the statements of the respondent and other doctors and the documentary evidence provided by the Hon’ble Court in this matter, the final opinion of the committee there was a communication gap on Dr. Dhankar’s part as complication was not explained in detail to the patient and his attendant.
However, the complication was eventually treated well at Safdarjung Hospital and AIIMS and the patient is doing well.
The Hon’ble Supreme Court in Jacob Mathew vs. State of Punjab and Ors. (05.08.2005 – SC) has held that
“(1) Negligence is the breach of a duty caused by omission to do something which a reasonable man guided by those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do. The definition of negligence as given in Law of Torts, Ratanlal & Dhirajlal (edited by Justice G.P. Singh), referred to hereinabove, holds good. Negligence becomes actionable on account of injury resulting from the act or omission amounting to negligence attributable to the person sued. The essential components of negligence are three: 'duty', 'breach' and 'resulting damage'.
(2) Negligence in the context of medical profession necessarily calls for a treatment with a difference. To infer rashness or negligence on the part of a professional, in particular a doctor, additional considerations apply. A case of occupational negligence is different from one of professional negligence. A simple lack of care, an error of judgment or an accident, is not proof of negligence on the part of a medical professional. So long as a doctor follows a practice acceptable to the medical profession of that day, he cannot be held liable for negligence merely because a better alternative course or method of treatment was also available or simply because a more skilled doctor would not have chosen to follow or resort to that practice or procedure which the accused followed. When it comes to the failure of taking precautions what has to be seen is whether those precautions were taken which the ordinary experience of men has found to be sufficient; a failure to use special or extraordinary precautions which might have prevented the particular happening cannot be the standard for judging the alleged negligence. So also, the standard of care, while assessing the practice as adopted, is judged in the light of knowledge available at the time of the incident, and not at the date of trial. Similarly, when the charge of negligence arises out of failure to use some particular equipment, the charge would fail if the equipment was not generally available at that particular time (that is, the time of the incident) at which it is suggested it should have been used.
(3) A professional may be held liable for negligence on one of the two findings: either 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. The standard to be applied for judging, whether the person charged has been negligent or not, would be that of an ordinary competent person exercising ordinary skill in that profession. It is not possible for every professional to possess the highest level of expertise or skills in that branch which he practices. A highly skilled professional may be possessed of better qualities, but that cannot be made the basis or the yardstick for judging the performance of the professional proceeded against on indictment of negligence.
(4) The test for determining medical negligence as laid down in Bolam's case [1957] 1 W.L.R. 582 holds good in its applicability in India……………………”
After going through the entire material on record and the report of the independent committee of RML Hospital, this Commission is of the view that OP1 has been negligent in not explaining the complexities of the procedure to be carried out on the complainant to the complainant or his father. OP 1 has further not acted in accordance with the established norm in not informing his HoD and the senior resident about the complication which arose in the case of the complainant as a result of which the complication could not be corrected immediately. It is also seen that it was only after the intervention of the CMO, OP1 took the complainant and his father to AIIMS.
Though the complainant cannot be compensated for the chances that he may have missed in his career/life on account of the complexities arising in his surgery yet ends of justice would be met by directing OP1 to compensate the complainant for a sum of Rs. 5,00,000/- within three months from the date of pronouncement of the Order failing which the said amount would carry an interest @ 6% p.a till realization.
Copy of the order be provided to the parties as per rules. File be consigned to record room. Order be uploaded on the website.
