Topic: Samira Kohli vs Dr. Prabha Manchanda
Samira Kohli vs Dr. Prabha Manchanda & Anr
CASE NO.: Appeal (civil) 1949 of 2004 - Supreme Court of India - BENCH: B. N. Agarwal, P. P. Naolekar & R. V. Raveendran - DATE OF JUDGMENT: 16/01/2008
J U D G M E N T RAVEENDRAN, J.
This appeal is filed against the order dated 19.11.2003 passed by the National Consumer Disputes Redressal Commission (for short 'Commission') rejecting the appellants complaint (O.P. No.12/1996) under Section 21 of the Consumer Protection Act, 1986 (Act for short).
2. On 9.5.1995, the appellant, an unmarried woman aged 44 years, visited the clinic of the first respondent (for short the respondent) complaining of prolonged menstrual bleeding for nine days. The respondent examined and advised her to undergo an ultrasound test on the same day. After examining the report, the respondent had a discussion with appellant and advised her to come on the next day (10.5.1995) for a laparoscopy test under general anesthesia, for making an affirmative diagnosis.
3. Accordingly, on 10.5.1995, the appellant went to the respondent's clinic with her mother. 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". Thereafter, appellant was put under general anesthesia and subjected to a laparoscopic examination. When the appellant was still unconscious, Dr. Lata Rengen, who was assisting the respondent, came out of the Operation Theatre and took the consent of appellants mother, who was waiting outside, for performing hysterectomy under general anesthesia. Thereafter, the Respondent performed a abdominal hystecrectomy (removal of uterus) and bilateral salpingo-oopherectomy (removal of ovaries and fallopian tubes). The appellant left the respondents clinic on 15.5.1995 without settling the bill.
4. On 23.5.1995, the respondent lodged a complaint with the Police alleging that on 15.5.1995, the Appellant's friend (Commander Zutshi) had abused and threatened her (respondent) and that against medical advice, he got the appellant discharged without clearing the bill. The appellant also lodged a complaint against the respondent on 31.5.1995, alleging negligence and unauthorized removal of her reproductive organs. The first respondent issued a legal notice dated 5.6.1995 demanding Rs.39,325/- for professional services. The appellant sent a reply dated 12.7.1995. There was a rejoinder dated 18.7.1995 from the respondent and a further reply dated 11.9.1995 from the appellant. On 19.1.1996 the appellant filed a complaint before the Commission claiming a compensation of Rs.25 lakhs from the Respondent. The appellant alleged that respondent was negligent in treating her; that the radical surgery by which her uterus, ovaries and fallopian tubes were removed without her consent, when she was under general anesthesia for a Laparascopic test, was unlawful, unauthorized and unwarranted; that on account of the removal of her reproductive organs, she had suffered premature menopause necessitating a prolonged medical treatment and a Harmone Replacement Therapy (HRT) course, apart from making her vulnerable to health problems by way of side effects. The compensation claimed was for the loss of reproductive organs and consequential loss of opportunity to become a mother, for diminished matrimonial prospects, for physical injury resulting in the loss of vital body organs and irreversible permanent damage, for pain, suffering emotional stress and trauma, and for decline in the health and increasing vulnerability to health hazards.
5. During the pendency of the complaint, at the instance of the respondent, her insurer - New India Assurance Co. Ltd, was impleaded as the second respondent. Parties led evidence - both oral and documentary, Appellant examined an expert witness (Dr. Puneet Bedi, Obstetrician & Gynaecologist), her mother (Sumi Kohli) and herself. The respondent examined herself, an expert witness (Dr. Sudha Salhan, Professor of Obstetrics & Gynaecology and President of Association of Obstetricians and Gynaecologists of Delhi), Dr. Latha Rangan (Doctor who assisted the Respondent) and Dr. Shiela Mehra (Anaesthetist for the surgery). The medical records and notices exchanged were produced as evidence. After hearing arguments, the Commission dismissed the complaint by order dated 19.11.2003. The Commission held : (a) the appellant voluntarily visited the respondents 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. Feeling aggrieved, the appellant has filed this appeal.
The appellants version :
6. The appellant consulted respondent on 9.5.1995. Respondent wanted an ultra-sound test to be done on the same day. In the evening, after seeing the ultrasound report, the respondent informed her that she was suffering from fibroids and that to make a firm diagnosis, she had to undergo a laparoscopic test the next day. The respondent informed her that the test was a minor procedure involving a small puncture for examination under general anesthesia. The respondent informed her that the costs of laparoscopic test, hospitalization, and anesthetists charges would be around Rs.8000 to 9,000. Respondent spent hardly 4 to 5 minutes with her and there was no discussion about the nature of treatment. Respondent merely told her that she will discuss the line of treatment, after the laparoscopic test. On 10.5.1995, she went to the clinic only for a diagnostic laparoscopy. Her signature was taken on some blank printed forms without giving her an opportunity to read the contents. As only a diagnostic procedure by way of a laparoscopic test was to be conducted, there was no discussion, even on 10.5.1995, with regard to any proposed treatment. As she was intending to marry within a month and start a family, she would have refused consent for removal of her reproductive organs and would have opted for conservative treatment, had she been informed about any proposed surgery for removal of her reproductive organs.
7. When the appellant was under general anaesthesia, respondent rushed out of the operation theatre and told appellant's mother that she had started bleeding profusely and gave an impression that the only way to save her life was by performing an extensive surgery. Appellant's aged mother was made to believe that there was a life threatening situation, and her signature was taken to some paper. Respondent did not choose to wait till appellant regained consciousness, to discuss about the findings of the laparoscopic test and take her consent for treatment. The appellant was kept in the dark about the radical surgery performed on her. She came to know about it, only on 14.5.1995 when respondents son casually informed her about the removal of her reproductive organs. When she asked the respondent as to why there should be profuse bleeding during a Laparoscopic test (as informed to appellant's mother) and why her reproductive organs were removed in such haste without informing her, without her consent, and without affording her an opportunity to consider other options or seek other opinion, the respondent answered rudely that due to her age, conception was not possible, and therefore, the removal of her reproductive organs did not make any difference.
8. As she was admitted only for a diagnostic procedure, namely a laparoscopy test, and as she had given consent only for a laparoscopy test and as her mothers consent for conducting hysterectomy had been obtained by misrepresentation, there was no valid consent for the radical surgery. The respondent also tried to cover up her unwarranted/negligent act by falsely alleging that the appellant was suffering from endometriosis. The respondent was guilty of two distinct acts of negligence: the first was the failure to take her consent, much less an informed consent, for the radical surgery involving removal of reproductive organs; and the second was the failure to exhaust conservative treatment before resorting to radical surgery, particularly when such drastic irreversible surgical procedure was not warranted in her case. The respondent did not inform the appellant, of the possible risks, side effects and complications associated with such surgery, before undertaking the surgical procedure. Such surgery without her consent was also in violation of medical Rules and ethics. Removal of her reproductive organs also resulted in a severe physical impairment, and necessitated prolonged further treatment. The respondent was also not qualified to claim to be a specialist in Obstetrics and Gynaecology and therefore could not have performed the surgery which only a qualified Gynaecologist could perform.
The respondents version
9. The appellant had an emergency consultation with the respondent on 9.5.1995, complaining that she had heavy vaginal bleeding from 30.4.1995, that her periods were irregular, and that she was suffering from excessive, irregular and painful menstruation (menorrhagia and dysmenorrhea) for a few months. On a clinical examination, the respondent found a huge mass in the pelvic region and tenderness in the whole area. In view of the severe condition, Respondent advised an ultrasound examination on the same evening. Such examination showed fibroids in the uterus, a large chocolate cyst (also known as endometrical cyst) on the right side and small cysts on the left side. On the basis of clinical and ultra sound examination, she made a provisional diagnosis of endometriosis and informed the appellant about the nature of the ailment, the anticipated extent of severity, and the modality of treatment. She further informed the appellant that a laparoscopic examination was needed to confirm the diagnosis; that if on such examination, she found that the condition was manageable with conservative surgery, she would only remove the chocolate cyst and fulgurate the endometric areas and follow it by medical therapy; and that if the lesion was extensive, then considering her age and likelihood of destruction of the function of the tubes, she will perform hysterectomy. She also explained the surgical procedure involved, and answered appellant's queries. The appellant stated that she was in acute discomfort and wanted a permanent cure and, therefore whatever was considered necessary, including a hysterectomy may be performed. When appellants mother called on her on the same evening, the respondent explained to her also about the nature of disease and the proposed treatment, and appellant's mother stated that she may do whatever was best for her daughter. According to the accepted medical practice, if endometriosis is widespread in the pelvis causing adhesions, and if the woman is over 40 years of age, the best and safest form of cure was to remove the uterus and the ovaries. As there is a decline in fecundity for most women in the fourth decade and a further decline in women in their forties, hysterectomy is always considered as a reasonable and favoured option. Further, endometriosis itself affected fertility adversely. All these were made known to the appellant before she authorised the removal of uterus and ovaries, if found necessary on laparoscopic examination.
10. On 10.5.1995, the appellants consent was formally recorded in the consent form by Dr. Lata Rangan - respondent's assistant. Dr. Lata Rangan informed the appellant about the consequences of such consent and explained the procedure that was proposed. The appellant signed the consent forms only after she read the duly filled up forms and understood their contents. All the requisite tests to be conducted mandatorily before the surgery were performed including Blood Grouping, HIV, Hemoglobin, PCV, BT, CT and ECG. The laparoscopic examination of the uterus surface confirmed the provisional diagnosis of endometriosis. The right ovary was enlarged and showed a chocolate cyst stuck to the bowel. Right tube was also involved in the lesion. The left ovary and tube were also stuck to the bowel near the cervix. A few small cysts were seen on the left ovary. The pelvic organs were thick and difficult to mobilize. Having regard to the extent of the lesion and the condition of appellant's uterus and ovaries, she decided that conservative surgery would not be sufficient and the appellants problem required removal of uterus and ovaries. The respondent sent her assistant, Dr. Lata Rangan to explain to appellants mother that the lesion would not respond to conservative surgery and a hysterectomy had to be performed and took her consent. The surgery was extremely difficult due to adhesions and vascularity of surface. A sub-total hysterectomy was done followed by the removal of rest of the stump of cervix. As the right ovary was completely stuck down to bowel, pouch of douglas, post surface and tube, it had to be removed piecemeal. When appellant regained consciousness, she was informed about the surgery. The appellant felt assured that heavy bleeding and pain would not recur. There was no protest either from the appellant or her mother, in regard to the removal of the ovaries and uterus.
11. However, on 15.5.1995, Commander Zutshi to whom appellant was said to have been engaged, created a scene and got her discharged. At the time of discharge, the summary of procedure and prescription of medicines were given to her. As the bill was not paid, the respondent filed Suit No.469/1995 for recovery of the bill amount and the said suit was decreed in due course.
12. Respondent performed the proper surgical procedure in pursuance of the consent given by the appellant and there was no negligence, illegality, impropriety or professional misconduct. There was real and informed consent by the appellant for the removal of her reproductive organs. The surgery (removal of uterus and ovaries), not only cured the appellant of her disease but also saved her intestines, bladder and ureter from possible damage. But for the surgical removal, there was likelihood of the intestines being damaged due to extension of lesion thereby causing bleeding, fibrosis and narrowing of the gut; there was also likelihood of the lesion going to the surface of the bladder penetrating the wall and causing haematuria and the ureter being damaged due to fibrosis and leading to damage of the kidney, with a reasonable real chance of developing cancer. As the complainant was already on the wrong side of 40 years which is a peri-menopausal age and as the appellant had menorrhagia which prevented her from ovulating regularly and giving her regular cycle necessary for pregnancy and as endometriosis prevented fertilization and also produced reaction in the pelvis which increased the lymphocytes and macrophages which destroyed the ova and sperm, there was no chance of appellant conceiving, even if the surgery had not been performed. The removal of her uterus and ovaries was proper and necessary and there was no negligence on the part of the respondent in performing the surgery. A Doctor who has acted in accordance with a practice accepted as proper by medical fraternity cannot be said to have acted negligently. In the realm of diagnosis and treatment there is ample scope for genuine differences of opinion and no Doctor can be said to have acted negligently merely because his or her opinion differs from that of other Doctors or because he or she has displayed lesser skill or knowledge when compared to others. There was thus no negligence on her part.
Questions for consideration :
13. On the contentions raised, the following questions arise for our consideration :
(i) Whether informed consent of a patient is necessary for surgical procedure involving removal of reproductive organs? If so what is the nature of such consent ?
(ii) When a patient consults a medical practitioner, whether consent given for diagnostic surgery, can be construed as consent for performing additional or further surgical procedure -- either as conservative treatment or as radical treatment -- without the specific consent for such additional or further surgery.
(iii) Whether there was consent by the appellant, for the abdominal hysterectomy and Bilateral Salpingo-oopherectomy (for short AH- BSO) performed by the respondent?
(iv) Whether the respondent had falsely invented a case that appellant was suffering from endometriosis to explain the unauthorized and unwarranted removal of uterus and ovaries, and whether such radical surgery was either to cover-up negligence in conducting diagnostic laparoscopy or to claim a higher fee ?
(v) Even if appellant was suffering from endometriosis, the respondent ought to have resorted to conservative treatment/surgery instead of performing radical surgery ?
(vi) Whether the Respondent is guilty of the tortious act of negligence/battery amounting to deficiency in service, and consequently liable to pay damages to the appellant.
Re : Question No.(i) and (ii)
14. 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. Consent can be implied in some circumstances from the action of the patient. For example, when a patient enters a Dentist's clinic and sits in the Dental chair, his consent is implied for examination, diagnosis and consultation. 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 consent, shifts the emphasis to the doctor's duty to disclose the necessary information to the patient to secure his consent. 'Informed consent' is defined in Taber's Cyclopedic Medical Dictionary thus :
"Consent that is given by a person after receipt of the following information : the nature and purpose of the proposed procedure or treatment; the expected outcome and the likelihood of success; the risks; the alternatives to the procedure and supporting information regarding those alternatives; and the effect of no treatment or procedure, including the effect on the prognosis and the material risks associated with no treatment. Also included are instructions concerning what should be done if the procedure turns out to be harmful or unsuccessful."
In Canterbury v. Spence - 1972  Federal Reporter 2d. 772, the United States Courts of appeals, District of Columbia Circuit, emphasized the element of Doctor's duty in 'informed consent' thus: "It is well established that the physician must seek and secure his patient's consent before commencing an operation or other course of treatment. It is also clear that the consent, to be efficacious, must be free from imposition upon the patient. It is the settled rule that therapy not authorized by the patient may amount to a tort - a common law battery - by the physician. And it is evident that it is normally impossible to obtain a consent worthy of the name unless the physician first elucidates the options and the perils for the patient's edification. Thus the physician has long borne a duty, on pain of liability for unauthorized treatment, to make adequate disclosure to the patient."
15. The basic principle in regard to patient's consent may be traced to the following classic statement by Justice Cardozo in Schoendorff vs. Society of New York Hospital - (1914) 211 NY 125 :
'Every human being of adult years and sound mind has a right to determine what should be done with his body; and a surgeon who performs the operation without his patient's consent, commits an assault for which he is liable in damages."
This principle has been accepted by English court also. In Re : F. 1989(2) All ER 545, the House of Lords while dealing with a case of sterilization of a mental patient reiterated the fundamental principle that every person's body is inviolate and performance of a medical operation on a person without his or her consent is unlawful. The English law on this aspect is summarised thus in Principles of Medical Law (published by Oxford University Press -- Second Edition, edited by Andrew Grubb, Para 3.04, Page 133) :
"Any intentional touching of a person is unlawful and amounts to the tort of battery unless it is justified by consent or other lawful authority. In medical law, this means that a doctor may only carry out a medical treatment or procedure which involves contact with a patient if there exists a valid consent by the patient (or another person authorized by law to consent on his behalf) or if the touching is permitted notwithstanding the absence of consent."
16. The next question is whether in an action for negligence/battery for performance of an unauthorized surgical procedure, the Doctor can put forth as defence the consent given for a particular operative procedure, as consent for any additional or further operative procedures performed in the interests of the patient. In Murray vs. McMurchy - 1949 (2) DLR 442, the Supreme Court of BC, Canada, was considering a claim for battery by a patient who underwent a caesarian section. During the course of caesarian section, the doctor found fibroid tumors in the patient's uterus. Being of the view that such tumours would be a danger in case of future pregnancy, he performed a sterilization operation. The court upheld the claim for damages for battery. It held that sterilization could not be justified under the principle of necessity, as there was no immediate threat or danger to the patient's health or life and it would not have been unreasonable to postpone the operation to secure the patient's consent. The fact that the doctor found it convenient to perform the sterilization operation without consent as the patient was already under general anaesthetic, was held to be not a valid defence. A somewhat similar view was expressed by Courts of Appeal in England in Re : F. (supra). It was held that the additional or further treatment which can be given (outside the consented procedure) should be confined to only such treatment as is necessary to meet the emergency, and as such needs to be carried out at once and before the patient is likely to be in a position to make a decision for himself. Lord Goff observed :
"Where, for example, a surgeon performs an operation without his consent on a patient temporarily rendered unconscious in an accident, he should do no more than is reasonably required, in the best interests of the patient, before he recovers consciousness. I can see no practical difficulty arising from this requirement, which derives from the fact that the patient is expected before long to regain consciousness and can then be consulted about longer term measures."
The decision in Marshell vs. Curry - 1933 (3) DLR 260 decided by the Supreme Court of NS, Canada, illustrates the exception to the rule, that an unauthorized procedure may be justified if the patient's medical condition brooks no delay and warrants immediate action without waiting for the patient to regain consciousness and take a decision for himself. In that case the doctor discovered a grossly diseased testicle while performing a hernia operation. As the doctor considered it to be gangrenous, posing a threat to patient's life and health, the doctor removed it without consent, as a part of the hernia operation. An action for battery was brought on the ground that the consent was for a hernia operation and removal of testicle was not consent. The claim was dismissed. The court was of the view that the doctor can act without the consent of the patient where it is necessary to save the life or preserve the health of the patient. Thus, the principle of necessity by which the doctor is permitted to perform further or additional procedure (unauthorized) is restricted to cases where the patient is temporarily incompetent (being unconscious), to permit the procedure delaying of which would be unreasonable because of the imminent danger to the life or health of the patient.
17. It is quite possible that if the patient been conscious, and informed about the need for the additional procedure, the patient might have agreed to it. It may be that the additional procedure is beneficial and in the interests of the patient. It may be that postponement of the additional procedure (say removal of an organ) may require another surgery, whereas removal of the affected organ during the initial diagnostic or exploratory surgery, would save the patient from the pain and cost of a second operation. Howsoever practical or convenient the reasons may be, they are not relevant. 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 at the risk of repetition, we may add that 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.
18. We may also refer to the code of medical ethics laid down by the Medical Council of India (approved by the Central Government under section 33 of Indian Medical Council Act, 1956). It contains a chapter relating to disciplinary action which enumerates a list of responsibilities, violation of which will be professional misconduct. Clause 13 of the said chapter places the following responsibility on a doctor :
"13. Before performing an operation the physician should obtain in writing the consent from the husband or wife, parent or guardian in the case of a minor, or the patient himself as the case may be. In an operation which may result in sterility the consent of both husband and wife is needed."
We may also refer to the following guidelines to doctors, issued by the General Medical Council of U.K. in seeking consent of the patient for investigation and treatment :
"Patients have a right to information about their condition and the treatment options available to them. The amount of information you give each patient will vary, according to factors such as the nature of the condition, the complexity of the treatment, the risks associated with the treatment or procedure, and the patient's own wishes. For example, patients may need more information to make an informed decision about the procedure which carries a high risk of failure or adverse side effects; or about an investigation for a condition which, if present, could have serious implications for the patient's employment, social or personal life.
x x x x x You should raise with patients the possibility of additional problems coming to light during a procedure when the patient is unconscious or otherwise unable to make a decision. You should seek consent to treat any problems which you think may arise and ascertain whether there are any procedures to which the patient would object, or prefer to give further thought before you proceed."
The Consent form for Hospital admission and medical treatment, to which appellant's signature was obtained by the respondent on 10.5.1995, which can safely be presumed to constitute the contract between the parties, specifically states :
"(A) It is customary, except in emergency or extraordinary circumstances, that no substantial procedures are performed upon a patient unless and until he or she has had an opportunity to discuss them with the physician or other health professional to the patient's satisfaction.
(B) Each patient has right to consent, or to refuse consent, to any proposed procedure of therapeutic course."
19. We therefore hold that in Medical Law, where a surgeon is consulted by a patient, and consent of the patient is taken for diagnostic procedure/surgery, such consent cannot be considered as authorisation 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.
20. We may next consider the nature of information that is required to be furnished by a Doctor to secure a valid or real consent. In Bowater v. Rowley Regis Corporation -  1 KB 476, Scott L.J. observed : "A man cannot be said to be truly 'willing' unless he is in a position to choose freely, and freedom of choice predicates, not only full knowledge of the circumstances on which the exercise of choice is conditioned, so that he may be able to choose wisely, but the absence from his mind of any feeling of constraint so that nothing shall interfere with the freedom of his will."
In Salgo vs. Leland Stanford [154 Cal. App. 2d.560 (1957)], it was held that a physician violates his duty to his patient and subjects himself to liability if he withholds any facts which are necessary to form the basis of an intelligent consent by the patient to the proposed treatment.