SURGERY DONE BY DOCTOR WITHOUT PRIOR CONSENT OF PATIENT– WILL DOCTOR WILL BE LIABLE ?
As a general practice, medical practitioners do surgery on the patients after obtaining consent of the patient or his relatives but sometimes they do additional surgery/therapy for which medical practitioner do not obtain consent from patient of his relatives.
In the present case, Hon’ble Supreme Court analysed the every aspect of consent and acts of medical practioner at length and here in this article, the brief summary of the case is discussed:
Samira Kohli vs Dr. Prabha Manchanda & Anr [Supreme Court of India]
- Samira Kohli (appellant), unmarried women aged 44 years visited Dr. Prabha Manchanda (respondent) on 9.5.1995, complaining of prolonged menstrual bleeding for nine
- The respondent advised her to undergo an ultrasound test on the same day.And after examining the ultrasound report, the respondent advised her to come on the next day (10.5.1995) for a laparoscopy test under general anesthesia, for making an affirmative diagnosis.
- Respondent informed to appellant that this will be a small procedure and a small puncture will be done to do the examination and the total cost of whole process will be Rs. 8000-Rs. 9000.
- On 10.5.1995, the appellant went to the respondent’s clinic with her mother for a laparoscopy. She was admitted and appellant signatures were taken on consentform for hospital admission, medical treatment and for surgery
- It is pertinent to note that theAdmission Card showed that admission was for diagnostic and operative laparoscopy on 5.1995 and respondent’s assistant Dr. Lata Rangan 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 for a laparoscopic ex However, when the appellant was still unconscious, the assistant of respondent, came out of the Operation Theatre and informed to the mother of appellant that appellant hysterectomy need to be performed on appellant and took the consent of appellant’smother.
- Thereafter, a abdominal hystecrectomy (removal of uterus) and bilateralsalpingo-oopherectomy (removal of ovaries and fallopian tubes) was performed on appellant.
- The appellant got discharged on 15.05.1995 without clearing of the bills of the clinic.
- The respondent lodged a police complaint alleging that one of the appellant’s friend (Commander Zutshi) visited the respondent clinic and had abused and threated respondent and got discharged appellant.
- A counter complaint was also filed by appellant alleging the removal of her reproductive organs without her consent.
- The appellant claimed compensation for the loss of reproductive organsand consequential loss of opportunity to become a mother etc.
- However, according to the respondent the surgery was done in as per the accepted medical practice and the whole procedure were made known to appellant before hand
On the contentions raised, the following questions arise for our consideration :
- 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 ?
- 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
- Whether there was consent by the appellant, for the abdominal hysterectomy and Bilateral Salpingo-oopherectomy (for short AH- BSO) performed by the respondent?
- 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 ?
- Even if appellant was suffering from endometriosis, the respondent ought to have resorted to conservative treatment/surgery instead of performing radical surgery ?
- 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
Reply of (i)
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.”
“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.”
Reply of (ii)
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.
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.
Howsoever practical or convenience may be the reasons but 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.
Clause 13 of The code of medical ethics of Medical Council of India (approved by the Central Government states the following responsibility on a doctor :
“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.”
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.”
Reply of (iii)
Court held 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 surgery but 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.
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 our view, the scope of the physician’s communications to the patient, then, must be mesured by the patient’s need, and that need is the information material to the decision.
It was further held that a risk is material ‘when a reasonable person, in what the physician knows or should know to be the patient’s position, would be likely to attach significance to the risk or cluster of risks in deciding whether or not to forego the proposed therapy’. The doctor, therefore, is required to communicate all inherent and potential hazards of the proposed treatment, the alternatives to that treatment, if any, and the likely effect if the patient remained untreated. This stringent standard of disclosure was subjected to only two exceptions : (i) where there was a genuine emergency, e.g. the patient was unconscious; and (ii) where the information would be harmful to the patient, e.g. where it might cause psychological damage, or where the patient would become so emotionally distraught as to prevent a rational decision
Bolam Test, first laid down in Bolam v. Friern Hospital Management Committee –  2 All.E.R. 118. McNair J., in a trial relating to negligence of a medical practitioner, while instructing the Jury, stated thus:
(i) A doctor is not negligent, if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art.
- When a doctor dealing with a sick man strongly believed that the only hope of cure was submission to a particular therapy, he could not be criticized if, believing the danger involved in the treatment to be minimal, did not stress them to the
- In order to recover damages for failure to give warning the plaintiff must show not only that thefailure was negligent but also that if he had been warned he would not have consented to the
2.We may now summarize principles relating to consent as follows :
- A doctor has to seek and secure the consent of the patient before commencing a ‘treatment’. The consent so obtained should be real and valid, whichmeans that : the patient should have the capacity and competence to consent; his consent should be voluntary; and his consent should be on the basis of adequate information concerning the nature of the treatment procedure, so that he knows what is consenting
- The ‘adequate information’to be furnished by the doctor who treats the patient, should enable the patient to make a balanced judgment as to whether he should submit himself to the particular treatment as to whether he should submit himself to the particular treatment or not. This means that the Doctor should disclose (a) nature and procedure of the treatment and its purpose, benefits and effect; (b) alternatives if any available; (c)an outline of the substantial risks; and (d)adverse consequences of refusing But there is no need to explain remote or theoretical risks involved, which may frighten or confuse a patient and result in refusal of consent for the necessary treatment.
- A balance should be achieved between the need for disclosing necessary and adequate information and at the same time avoid the possibility of the patient being deterred from agreeing to a necessary treatment or offering to undergo an unnecessary treatment.
- Consent given only for a diagnostic procedure, cannot be considered as consent for therapeutic Consent given for a specific treatment procedure will not be valid for conducting some other treatment procedure. The fact that the unauthorized additional surgery is beneficial to the patient, or that it would save considerable time and expense to the patient, or would relieve the patient from pain and suffering in future, are not grounds of defence in an action in tort for negligence or assault and battery. The only exception to this rule is where the additional procedure though unauthorized, is necessary in order to save the life or preserve the health of the patient and it would be unreasonable to delay such unauthorized procedure until patient regains consciousness and takes a decision.
- There can be a common consent for diagnostic and operative procedures where they are There can also be a common consent for a particular surgical procedure and an additional or further procedure that may become necessary during the course of surgery.
- The nature and extent of information to be furnished by the doctor to the patient to secure the consent need not be of the stringent. It will depend upon the physical and mental condition of the patient, the nature of treatment, and the risk and consequences attached to the Court further held that
- There was no consent by the appellant for performing hysterectomy,performance of such surgery was an unauthorized invasion and interference with appellant’s body which amounted to a to rtious act of assault and battery and therefore a deficiency in service.
- But as noticed above, the respondent did it in the interest of the appellant. As the appellant was already 44 years old and was having serious menstrual problems, the respondent thought that by surgical removal of uterus and ovaries she was providing permanent relief.
- It is also possible that the respondent thought thatthe appellant may approve the additional surgical procedure when she regained consciousness and the consent by appellant’s mother gave her authority.
- This is a case of respondent acting in excess ofconsent but in good faith and for the benefit of the appellant.
- Though the appellant has alleged thatshe had to undergo Hormone Therapy, no other serious repercussions is made out as a result of the
- The appellant was already fast approaching the age of menopause and in all probability required such Hormone Even assuming that AH-BSO surgery was not immediately required, there was a reasonable certainty that she would have ultimately required the said treatment for a complete cure.
- On the facts and circumstances, we consider that interests of justice would be served if the respondent is denied the entire fee charged for the surgery and in addition, directed to pay Rs.25,000 as compensation for the unauthorized AH-BSO surgery to the appellant.