- Samira Kohli (the appellant) was an unmarried, 44-year-old woman who
visited a clinic on 9/5/1995 complaining about prolonged menstrual bleeding. At
the clinic she informed Dr. Prabha Manchanda (the respondent) about the
menstrual bleeding and that it hadn't stopped in nine days. After examining her
the respondent advised her to visit on 10/5/1995 for laparoscopy test under
- On 10/5/1995, the appellant visited the clinic for the test as advised.
Thereon the appellant gave her signatures on the admission and discharge
card which mentioned the admission was "for diagnostic and operative
laparoscopy on 10.5.1995", the consent form for hospital admission and
medical treatment, and the consent form for surgery which stated that the
appellant was to undergo "diagnostic and operative laparoscopy." And it also
mentioned that "Laparotomy may be needed".
- The appellant was then put under general anesthesia and subjected to the
laparoscopic examination. The respondent found that the appellant was
suffering from endometriosis. While the appellant was unconscious, Dr. Lata Rangan, the
respondent's assistant took the consent of Suma Kohli, the appellant's mother to
perform hysterectomy under general anesthesia and bilateral
- On 15/5/1995, the appellant left the clinic without paying the bill.
Subsequently, the respondent lodged a complaint with the police alleging
that Commander Zutshi, a friend of the appellant had visited the clinic on
15/5//1995, abused and threatened the respondent, and got the appellant
discharged without clearing the bill.
- On 19/1/1996, the appellant lodged a complaint before the National
Consumer Disputes Redressal Commission claiming compensation of Rs. 25 lakhs alleging
that the respondent had been negligent in treating her and that the respondent
performed hysterectomy and bilateral salpingo-oopherectomy without her consent.
- Is real/informed consent necessary for surgical procedures such as
abdominal hysterectomy and bilateral salpingo-oopherectomy?
- Was there consent by Samira Kohli for the surgery to be performed by Dr.
- Whether a surgical procedure such as abdominal hysterectomy and
bilateral salpingo-oopherectomy can be performed without a patient's consent
under the principle of necessity?
- Whether Dr. Prabha Manchanda is guilty of any further tortious acts such
as assault and battery, or negligence and be liable to pay damages to Samira
- Whether the acts of Dr. Prabha amount to deficiency in service?
Consent in the medical context refers to the permission given by
the patient for the performance of the doctor to perform a medical procedure
such as a surgery, diagnostic test etc. Consent can be implied or express,
unless consent can be clearly and obviously implied, express consent has to be
obtained before the medical practitioner perform any procedure.
Express consent is considered to be valid and "real" when:
- The patient gives consent voluntarily without any coercion
- The patient has capacity to give consent
- The patient has adequate amount of information about the nature of the
procedure he is to undergo. This information includes the purpose of
procedure, the risks involved, the alternatives to the procedure etc.
- Medical negligence is an act or omission by medical practitioner which
deviates from normal practice, it is something which no professional with
ordinary skill would have taken if he had been acting with ordinary care and
which causes injury to the patient.
Bolam Test first laid down in Bolam v. Friern Hospital Management Committee,
is a well-known standard used in determining negligence on part of medical
practitioner. Bolam Test boils down to the simple rule that, if a doctor is
acting in accordance with responsible body of medical opinion, then, he/she
cannot be held guilty for negligence.
Thus, when obtaining consent, the doctor needs to provide information to such an
extent which is accepted by a body of medical opinion. The information provided
to two different individuals for the same surgery may differ because of the
difference in physical and mental condition of the patient.
- In Schoendorff vs. Society of New York Hospital it was stated that any
operation on an individual without his/her consent would amount to assault.
Thus, any unwarranted, unauthorized and unlawful procedure might amount to
negligence, battery or trespass to body This rule has one exception, principle
Principle of necessity allows the doctor to perform additional medical procedure
on a patient if the patient is temporarily incompetent and it would be
unreasonable to postpone such procedure because there is immediate threat or
danger to the patient's life.
- Deficiency in Service:
Deficiency is defined under Section 2(11) of Consumer Protection Act,
2019, Section 2(11) reads as;
"deficiency" means any fault, imperfection, shortcoming or inadequacy
in the quality, nature and manner of performance which is required to be
maintained by or under any law for the time being in force or has been
undertaken to be performed by a person in pursuance of a contract or
otherwise in relation to any service and includes:
- any act of negligence or omission or commission by such person which
causes loss or injury to the consumer; and
- deliberate withholding of relevant information by such person to the
The case substantially depends on the issue of consent. Consent is an essential
part of any medical procedure and is a requisite before performing any procedure
on an individual. If there was no real consent and then the surgery by Dr.
Prabha Manchanda will be unlawful, thus it might attract liability under
tortious act of negligence or assault and battery.
In the present case the
appellant gave signature on the consent form for surgery which stated that she
was to undergo "diagnostic and operative laparoscopy." it was also stated that
"Laparotomy may be needed". There was express consent by the appellant for the
performance of laparoscopy and laparotomy if needed, there was no mention of
any abdominal hysterectomy and bilateral salpingo-oopherectomy on any of the
three forms that she signed.
Furthermore, the consent obtained from the mother
cannot be considered to be valid consent as the appellant was a competent adult
and had the ability to consent, and there was no medical emergency.
Thus, in the absence of any express consent the only lawful justification for
such a surgery by Dr. Manchanda would be under the principle of necessity. This
principle prevents doctor from performing any additional medical procedure on an
individual unless the life of the patient is under imminent threat.
In re F. vs
Berkshire Health Authority
(Mental Patient: Sterilisation
) where the court
stated that the performance of any further medical operation on a person should
be limited to such procedures which are required to deal with a medical
emergency. This principle extends to the removal of organs as well, in Marshell
 the doctor removed a diseased testicle without patient's consent
but were not held liable as it was posing an immediate threat to the patient's
However, in the present case there was no threat to the patient's life and
such surgery cannot be justified in the basis that it was the best course of
treatment available according to the respondent. A similar position was taken by
the in Murray v. McMurchy
, wherein a doctor had in course of performing a
caesarean section found tumors in patient's uterus and performed a sterilization
operation to prevent danger in case of future pregnancy was found guilty of
The court stated that the surgery cannot be held to be lawful under the
principle of necessity as there was no immediate threat and it would not have
been unreasonable to postpone operation and obtain the patient's consent.
Similarly in the present case, even if the appellant was suffering from
endometriosis there was no immediate threat present and it would not have been
unreasonable for the respondent to take the appellant's consent.
Now, given the absence of consent, the act of the respondent would amount to
assault and battery. It is a well-established principle that any such
unwarranted, unauthorized and unlawful act attracts tortious liability,
in Canterbury v. Spence
 the court stated that any unauthorized therapy upon a
patient will amount to a tort of battery and, in Schoendorff vs. Society of New
York Hospital it was stated that any operation on an individual without
his/her consent would amount to assault.
In Vinitha Ashok vs. Lakshmi Hospital
 , the Supreme Court of India had
accepted the Bolam Test and stated that:
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.
consider the respondent's decision to perform abdominal hysterectomy and
bilateral salpingo-oopherectomy under this definition of negligence, we need to
consider if it was considered by medical community to be a proper decision and
if it was reasonable and responsible. According to medical professional such
medical procedure cannot be improper, unreasonable or irresponsible. Thus, even
though the respondent will be guilty of assault and battery she will not be
guilty of negligence.
In Indian Medical Association vs. VP Shantha
, the Supreme Court bought
medical services within the ambit of services under Consumer Protection Act.
Similar decision was given in Dr Vijil & Ors v. Ambujakshi T.P &
 Wherein the court stated that medical services fall within the ambit of
"service" as defined under Section 2(42) of Consumer Protection Act, 2019.
Deficiency is service is quite apparent given that there was tort of assault and
battery committed which caused injury to the appellant.
Consent was an essential element which was a pre-requisite for a medical
procedure such as abdominal hysterectomy and bilateral salpingo-oopherectomy and
consent was absent in the present case. Furthermore, the abdominal hysterectomy
and bilateral salpingo-oopherectomy did not fall under the exception of
necessity, thus the respondent will be held guilty of assault and battery.
would amount to deficiency in service. However, the respondent will not be held
guilty under negligence as the act of the respondent is proper according to the Bolam Test and prior judgements of the court.
The Hon'ble Supreme Court held the respondent guilty of assault and battery
amounting to deficiency in service, and awarded Rs 25,000 as compensation for
the unauthorized surgery to the appellant and exempted the respondent from
receiving any fee for the surgery.
- Bolam v. Friern Hospital Management Committee (1957) 2 All.E.R.
- Schoendorff vs. Society of New York Hospital (1914) 211 NY 125
- The Consumer Protection Act, 2019, §2(11), (2019)
- F v. Berkshire Health Authority (1989) 2 WLR 1025
- Marshell vs. Curry (1933) (3) DLR 260
- Murray vs. McMurchy (1949) (2) DLR 442
- Canterbury v. Spence (1972)  F 2d. 772
- Schoendorff vs. Society of New York Hospital (1914) 211 NY 125
- Vinitha Ashok vs. Lakshmi Hospital (2001) 8 SCC 731
- Indian Medical Association vs. VP Shantha (1995) SCC (6) 651
- Dr Vijil & Ors v. Ambujakshi T.P & Anr. 2022 LiveLaw (Ker) 107
- The Consumer Protection Act, 2019, §2(42), (2019)