NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI
R.K. Agrawal, President and M. Shreesha, Member
Manmohan Kaur —Appellant
versus
M/s. Fortis Hospital and Ors. —Respondents
First Appeal No.832 of 2015
(Against the Order dated 07/09/2015 in Complaint No. 58/2013 of the State Commission Punjab)
Decided on 29.6.2018

IMPORTANT POINT
Treating doctor as well as Hospital are bound to obtain a valid consent from patient.

Headnote:Consumer Protection Act, 1986—Sections 17, 19 and 21—Medical services—Medical negligence—Gastroenterology—Negligence in performing colonoscopy—Complaint dismissed by State Commission—Stand of Complainant has been that no consent was taken from her by Treating doctor before subjecting her to colonoscopy—Treating doctor as well as Hospital had failed to obtain a valid consent from Complainant and colonoscopy procedure conducted on her was unauthorized, amounting to deficiency in service on their part—Award of lump sum compensation of Rs.10,00,000/- in favour of Complainant, which would include medical expenses, for physical and mental agony undergone by her, would meet ends of justice—Complainant shall also be entitled to costs quantified at Rs..25,000/-.

       Held: As stated above, the stand of the Complainant has been that no consent was taken from her by the Treating doctor before subjecting her to colonoscopy. Whereas, the Respondents claim that it was taken but they were and are unable to produce the same because the form had been destroyed due to water seepage in the room where it was kept along with other records. Since, during the course of hearing in the Appeal, it was asserted on behalf of the Complainant that the cause pleaded for non-production of the consent form was an afterthought to cover the lapse on the part of the Treating doctor, in not taking any informed consent, vide order dated 15.01.2018, the Respondents were directed to furnish on affidavit, by the Facility Director of the Hospital, information on the following points:—

        “1. When strangely almost all documents, pertaining to the case, including the O.T. notes/Discharge Summary etc., maintained by the Hospital were available and filed, how only one solitary document, viz. the Consent Form, stated to have been obtained from the Complainant before subjecting her to Colonoscopy, is claimed to have been destroyed in the water seepage?

        2. When in the O.T. notes, prepared before the procedure for Sigmoidoscopy was performed, it is clearly recorded that the consent had been obtained from the Complainant, why such an endorsement was not made in the O.T. notes at the time of subjecting her to Colonoscopy?

        3. Why in the Discharge Summary, the cause of perforation during the Colonoscopy procedure was not recorded?

       Evidently, in the said explanation, the Respondents have stuck to their earlier stand, viz. that the consent was duly taken but the consent form has been destroyed because of water seepage but pertinently, the Respondents have not chosen to produce even the soiled file, stated to be containing Complainant’s consent form along with other similar consents obtained in the OPD room. Besides, a very significant fact emerges from the afore-extracted explanation on point No.1, viz. the consents are got signed in the OPD room, where Colonoscopy procedures are conducted, “by the staff” and the same were kept together with the other consent forms of other patients. The stand of the Respondents that consent forms are got signed by the staff in the OPD room, in our view, leaves little scope for doubt in our mind that the consent forms were got signed by the staff before the procedure was conducted by the Doctors, as a formality and does not meet even the basic mandatory requirements of the Treating doctor, making the Complainant aware of material risks involved in the Colonoscopy procedure, before she was subjected to the same. It is true that advances in endoscope design, array of instruments and technique available, have made Colonoscopy one of the safest of invasive procedures, yet, complications and adverse effects still happen, so much so cases of unanticipated deaths, during or after the Colonoscopy have been reported, even in ideal circumstances. According to the medical journals, death can occur from any complication of Colonoscopy: the electrolyte imbalance caused by sodium phosphate preparation; the Cardiac events brought on hypoxia from over-sedation; the sepsis that may follow perforation; or blood loss that can occur with haemorrhage, though proper management of these complications can minimise mortality. It is universally accepted that Colonic perforation is rare but known complication of Colonoscopy. That being so, the basic principle of “Consent” demands that before opting for Colonoscopic procedure, the patients must be clearly apprised of the balance of risks and benefits that apply in their own particular situations and participate in the decision making process that flows from this balance. On facts at hand, in the entire defence put up on behalf of the Respondents, there is not even a whisper that the Treating doctor had explained to the Complainant the pros and cons: the material risks involved and the benefits of the procedure, particularly keeping in view her age and health condition, now being highlighted. In our opinion, Respondent’s reliance on the averment in the Complaint to the effect that though initially she was hesitant but on the assurance of the Treating doctor, she had agreed to go for the test, the Treating doctor was not required to prove the ‘consent’, is of no avail to them and does not establish that ‘informed consent’ as understood in legal parlance, was obtained from the Complainant before subjecting her to the said procedure. In our view, the finding in the impugned order to the effect that “it cannot be made out from the evidence produced by the Complainant that she had not consented to undergo this colonoscopy” is per se illegal, inasmuch in the light of Complainant’s categorical stand that no informed consent had been taken from her before the procedure was performed, onus was on the Respondents, in particular the Treating doctor, to prove that it was infact taken, which, evidently, they have failed to discharge. In our opinion, apart from the fact that the explanation for non-production of the consent form, claimed to have been got signed from the Complainant, does not inspire confidence, even on merits the Treating doctor and the Hospital have failed to prove that a valid/informed consent had been obtained from the Complainant before subjecting her to colonoscopy procedure. We are, therefore, of the considered view that the Treating doctor as well as the Hospital had failed to obtain a valid consent from the Complainant and the colonoscopy procedure conducted on her was unauthorized, amounting to deficiency in service on their part. We hold accordingly. Nevertheless, in so far as Dr. J.D. Wig is concerned, we do not find any negligence/deficiency on his part. Accordingly, we exonerate him.

       For the view, we have taken above, we deem it unnecessary to deal with other afore-noted issues viz. whether: the Treating doctor had failed to follow the standard protocol in the performance of the colonoscopy procedure; he should have abandoned the procedure when the Complainant claims to have complained of pain at the start of the procedure; the Treating doctor lacked requisite experience to conduct such a procedure; the Treating doctor did not take due precautions while performing the said procedure, resulting in pneumoperitoneum requiring emergency laparotomy.

       That brings us to an intricate question, viz, what compensation deserves to be awarded to the Complainant for the aforestated sufferings undergone by her. We shall consider the question, bearing in mind the fact that we have not returned any final finding of negligence on the part of the Treating doctor in the performance of the procedure on her but have found deficiency on the part of the Treating doctor and the Hospital for not obtaining a valid consent for colonoscopy. In the Complaint, the Complainant has prayed for compensation amounting, to Rs.50,00,000/- on the ground that she has suffered mentally, physically and financially on account of the aforenoted conduct of the Respondents. However, no cogent material has been placed on record to show her source(s) and scale of income. Under the circumstances, bearing in mind the observations made by the Hon’ble Supreme Court in V. Krishnakumar Vs. State of Tamil Nadu and Ors. - (2015) 9 SSC 388, wherein computation of compensation in medical negligence cases on multiplier factor has been disapproved, we are of the opinion that the award of a lump sum compensation of Rs.10,00,000/- in favour of the Complainant, which would include the medical expenses, stated to have been expended, for the physical and mental agony undergone by her, would meet the ends of justice. We order accordingly. The Treating doctor and the Hospital shall be liable to pay the said compensation to the Complainant, jointly and severally, as apart from the fact that it is well settled that the Hospital is vicariously liable for the negligence of its attending doctors, in the present case, the Hospital being responsible for preservation of the record of the Patient, was equally deficient in not preserving and producing the requisite document(s). The said amount shall be remitted to the Complainant within four weeks, from the date of receipt of a copy of the order, failing which it shall carry interest @9% p.a. from the date of filing of the Complaint till actual realization. The Complainant shall also be entitled to costs, which are quantified at

       Rs. 25,000/-. (Paras 19, 22, 23 and 24)

       Result: Appeal allowed.