2008 Supreme(SC) 70

2008(1) Supreme 191
Supreme Court of india
(From National Consumer Disputes Redressal Commission)
B.N. Agarwal, P. P. Naolekar & R.V. Raveendran, JJ.
Samira Kohli — Petitioner
versus
Dr. Prabha Manchanda & Anr. — Respondents
Appeal (civil) 1949 of 2004
Decided on : 16-01-2008

important point
Doctors should not act in excess of consent even in good faith and for the benefit of the patient.

Headnote:(a)Words and Phrases – Consent – Consent in the context of a doctor-patient relationship, means the grant of permission by the patient for an act to be carried out by the doctor, such as a diagnostic, surgical or therapeutic procedure – Except where consent can be clearly and obviously implied, there should be express consent – There is, however, a significant difference in the nature of express consent of the patient, known as ‘real consent’ in UK and as ‘informed consent’ in America – In UK, the elements of consent are defined with reference to the patient and a consent is considered to be valid and ‘real’ when (i) the patient gives it voluntarily without any coercion; (ii) the patient has the capacity and competence to give consent; and (iii) the patient has the minimum of adequate level of information about the nature of the procedure to which he is consenting to – On the other hand, the concept of ‘informed consent’ developed by American courts, while retaining the basic requirements of consent, shifts the emphasis to the doctor’s duty to disclose the necessary information to the patient to secure his consent. (Para 14)

       (1914) 211 NY 125; 1989(2) All ER 545 – Relied upon.

       (b)Consent – What is relevant and of importance is the inviolable nature of the patient’s right in regard to his body and his right to decide whether he should undergo the particular treatment or surgery or not – Therefore unless the unauthorized additional or further procedure is necessary in order to save the life or preserve the health of the patient and it would be unreasonable (as contrasted from being merely inconvenient) to delay the further procedure until the patient regains consciousness and takes a decision, a doctor cannot perform such procedure without the consent of the patient. (Para 17)

       (c)Medical Law – Where consent of the patient is taken for diagnostic procedure/ surgery, such consent cannot be considered as authorization or permission to perform therapeutic surgery either conservative or radical (except in life threatening or emergent situations) – Similarly where the consent by the patient is for a particular operative surgery, it cannot be treated as consent for an unauthorized additional procedure involving removal of an organ, only on the ground that such removal is beneficial to the patient or is likely to prevent some danger developing in future, where there is no imminent danger to the life or health of the patient. (Para 19)

       (d)Medical Law – Consent – The nature of information that is required to be furnished by a Doctor to secure a valid or real consent – Bolam test – In order to recover damages for failure to give warning the plaintiff must show not only that the failure was negligent but also that if he had been warned he would not have consented to the treatment – A doctor will be liable for negligence in respect of diagnosis and treatment in spite of a body of professional opinion approving his conduct where it has not been established to the court’s satisfaction that such opinion relied on is reasonable or responsible – In general, a professional man owes to his client a duty in tort as well as in contract to exercise reasonable care in giving advice or performing services. (Paras 2 and 25)

       [1944] 1 KB 476; 154 Cal. App. 2d.560 (1957); [1957] 2 All.E.R. 118; (1955 SC 200); [1985] 1 All ER 643; (1996)2 SCC 634; (2001)8 SCC 731; (1995)6 SCC 651 – Relied upon.

       (e)Medical Law – Consent – Principles relating to consent summarized. (Para 32)

       (f)Medical Law – Consent – While the courts in Canada and Australia have moved towards Canterbury standard of disclosure and informed consent and even in England there is a tendency to make the doctor’s duty to inform more stringent than Bolam’s test; we have however, consciously preferred the ‘real consent’ concept evolved in Bolam and Sidaway having regard to the ground realities in medical and health-care in India – But if medical practitioners and private hospitals become more and more commercialized, and if there is a corresponding increase in the awareness of patient’s rights among the public, inevitably, a day may come when we may have to move towards Canterbury. (Para 33)

       (1980) 114 DLR (3d.) 1; 1992 (109) ALR 625; 1998 1 AC 232; 1998 (48) BMLR 118 – Relied upon.

       (g)Medical Law – Consent – There is no evidence to show that any emergency or life threatening situation developed during laparoscopy – Moreover, appellant was admitted for and gave consent only for diagnostic operative laparoscopy, and laparotomy if needed – The OPD card does not refer to endometriosis – Therefore the appellant was not admitted for conducting hysterectomy or bilateral salpingo-oopherectomy, but only for diagnostic purposes – The respondent’s contention that ‘Laparotomy’ refers to and includes hystectomy and bilateral salpingo-oopherectomy cannot be accepted – Hence the AH BSO could not have been undertaken by the respondents as there was no consent therefor. (Paras 37, 38, 40, 42 and 44)

       (h)Words and Phrases – Laparotomy is at best the initial step that is necessary for performing hysterectomy or salpingo-oopherectomy – By itself it is not hysterectomy or salpingo-oopherectomy, nor does ‘hysterectomy’ include salpingo-oopherectomy, in the case of woman who has not attained menopause – Laparotomy does not refer to surgical removal of any vital or reproductive organs and is usually exploratory and once the internal organs are exposed and examined and the disease or ailment is diagnosed, the problem may be addressed and fixed during the course of such laparotomy (as for example, removal of cysts and fulguration of endometric area as stated by respondent herself as a conservative form of treatment) – Laparotomy is never understood as referring to removal of any organ. (Para 43)

       (i)Medical Law – Consent – It is well recognized that the ‘catch all’ clause giving the surgeon permission to do anything necessary does not give roving authority to remove whatever he fancies may be for the good of the patient – For example, a surgeon cannot construe a consent to termination of pregnancy as a consent to sterilize the patient. (Para 43)

       (j)Medical Law – Consent by attendant or guardian – When a patient is a competent adult, there is no question of someone else giving consent on her behalf – When there was no medical emergency during surgery and the appellant was only temporarily unconscious, undergoing only a diagnostic procedure by way of laparoscopy, the respondent ought to have waited till the appellant regained consciousness, discussed the result of the laparoscopic examination and then taken her consent for the removal of her uterus and ovaries – In the absence of an emergency and as the matter still being at the stage of diagnosis, the question of taking her mother’s consent for radical surgery did not arise – Such consent by mother cannot be treated as valid or real consent. (Para 45)

       (k)Words and Phrases – Vital organs – Contention that uterus and ovaries were not ‘vital’ organs and having regard to the advanced age of the appellant, as procreation was not possible, they were virtually redundant cannot be accepted – For a woman who has not married and not yet reached menopause, the reproductive organs are certainly important organs and there is also no dispute that removal of ovaries leads to abrupt menopause causing hormonal imbalance and consequential adverse effects. (Para 48)

       (l)Consumer Protection Act, 1986 – Section 21 – In view of the consent of the appellant being only for diagnostic operative laparoscopy, and laparotomy if needed, and the respondent conducting AH-BSO surgery which did not have any serious repercussions other than Hormone therapy; this is a case of the respondent acting in excess of consent but in good faith and for the benefit of the appellant. (Para 54)

       Facts of the case:

       1.On 9.5.1995, the appellant, an unmarried woman aged 44 years, visited the clinic of the first respondent complaining of prolonged menstrual bleeding for nine days. The respondent after examination of the appellant and an ultrasound test advised for a laparoscopy test under general anesthesia, for making an affirmative diagnosis.

       2.Accordingly, on 10.5.1995, on admission, the appellant’s signatures were taken on (i) admission and discharge card; (ii) consent form for hospital admission and medical treatment; and (iii) consent form for surgery. The Admission Card showed that admission was “for diagnostic and operative laparoscopy on 10.5.1995”. The consent form for surgery filled by Dr. Lata Rangan (respondent’s assistant) described the procedure to be undergone by the appellant as “diagnostic and operative laparoscopy. Laparotomy may be needed”. During the laparoscopic examination, when the appellant was still unconscious, Dr. Lata Rengen, took the consent of appellant’s mother for performing hysterectomy under general anesthesia.

       3.Thereafter, the Respondent performed a abdominal hystecrectomy (removal of uterus) and bilateral salpingo-oopherectomy (removal of ovaries and fallopian tubes). The appellant left the respondent’s clinic on 15.5.1995 without settling the bill.

       4.Complaints and counter complains were lodged by both the respondent and the appellant. Respondent claimed charges for professional services; whereas the appellant alleged unsolicited removal of her reproductive organs.

       5.The Commission held : (a) the appellant voluntarily visited the respondent’s clinic for treatment and consented for diagnostic procedures and operative surgery; (ii) the hysterectomy and other surgical procedures were done with adequate care and caution; and (iii) the surgical removal of uterus, ovaries etc. was necessitated as the appellant was found to be suffering from endometriosis (Grade IV), and if they had not been removed, there was likelihood of the lesion extending to the intestines and bladder and damaging them.

       Findings of the Court:

       Respondent acted in excess of consent but in good faith and for the benefit of the appellant.

       Result : Appeal partly allowed.