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Case Analysis of Samira Kohli v/s Prabha Manchanda

Facts:
  1. 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 general anesthesia.
     
  2. 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".
     
  3. 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 salpingo-oopherectomy.
     
  4. 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.
     
  5. 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.

Issue:
  1. Is real/informed consent necessary for surgical procedures such as abdominal hysterectomy and bilateral salpingo-oopherectomy?
  2. Was there consent by Samira Kohli for the surgery to be performed by Dr. Prabha Manchanda?
  3. 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?
  4. 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 Kohli?
  5. Whether the acts of Dr. Prabha amount to deficiency in service?
Rule:
  • Consent:
    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:
    1. The patient gives consent voluntarily without any coercion
    2. The patient has capacity to give consent
    3. 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[1], 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[2] 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 of necessity.

    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[3], 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:
    1. any act of negligence or omission or commission by such person which causes loss or injury to the consumer; and
    2. deliberate withholding of relevant information by such person to the consumer;

Analysis
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)[4] 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 vs. Curry[5] 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 life.

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[6], 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 battery.

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[7] 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[8] it was stated that any operation on an individual without his/her consent would amount to assault.

In Vinitha Ashok vs. Lakshmi Hospital[9] , 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.

When we 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[10], 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 & Anr.[11] Wherein the court stated that medical services fall within the ambit of "service" as defined under Section 2(42) of Consumer Protection Act, 2019[12]. Deficiency is service is quite apparent given that there was tort of assault and battery committed which caused injury to the appellant.

Conclusion
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.

This 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.

End-Notes:
  1. Bolam v. Friern Hospital Management Committee (1957) 2 All.E.R.
  2. Schoendorff vs. Society of New York Hospital (1914) 211 NY 125
  3. The Consumer Protection Act, 2019, 2(11), (2019)
  4. F v. Berkshire Health Authority (1989) 2 WLR 1025
  5. Marshell vs. Curry (1933) (3) DLR 260
  6. Murray vs. McMurchy (1949) (2) DLR 442
  7. Canterbury v. Spence (1972) [464] F 2d. 772
  8. Schoendorff vs. Society of New York Hospital (1914) 211 NY 125
  9. Vinitha Ashok vs. Lakshmi Hospital (2001) 8 SCC 731
  10. Indian Medical Association vs. VP Shantha (1995) SCC (6) 651
  11. Dr Vijil & Ors v. Ambujakshi T.P & Anr. 2022 LiveLaw (Ker) 107
  12. The Consumer Protection Act, 2019, 2(42), (2019)

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