Performing Surgical Procedure/Removal of Organs without Valid Informed Consent of the Patient (Court Judgment)

The appellant, a 44-years-old unmarried woman, visited the clinic of the respondent complaining of prolonged menstrual bleeding for 9 days.

The respondent, after examining her and seeing the ultrasound test report advised her to undergo a diagnostic laparoscopy test under general anesthesia for making the correct diagnosis to which the appellant agreed.

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At the time of admission, the reason for admission, written in the admission card, was “diagnostic and operative laparoscopy”.

The consent form filled by Dr L (the respondent’s assistant) mentioned the procedure to be undergone as “diagnostic and operative laparoscopy” and added that laparotomy might be needed.

The appellant was subjected to laparoscopy under general anesthesia. While the appellant was still unconscious, Dr L came out and took the consent of the appellant’s mother (waiting outside the OT) for performing hysterectomy under general anesthesia.

An abdominal hysterectomy and bilateral salpingo- oophorectomy (removal of uterus, ovaries and fallopian tubes) was done. The appellant left the respondent’s clinic after 5 days without settling the bill.

A few days later, the respondent lodged a complaint with the police alleging that the appellant’s friend Z had abused and threatened the respondent and had, got the appellant discharged against medical advice without paying the bill.

Subsequently, the appellant also lodged a complaint against the respondent alleging negligence and unauthorized removal of her reproductive organs. The respondent then issued a legal notice demanding Rs 39,325 for professional services.

At last, the appellant filed a complaint before the National Consumer Disputes Redressal Commission claiming a compensation of Rs 25 lakhs from the respondent, on the grounds that the 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 laparoscopic test, was unlawful, unauthorized and unwarranted: that the removal of her reproductive organs had lead to premature menopause necessitating a prolonged medical treatment and a hormonal replacement therapy (HRT) course besides other possible 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.

Holding that (i) the appellant voluntarily visited the respondent’s 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, (iii) the surgical removal of uterus, ovaries, etc. was necessitated as the appellant was found to be suffering from endometriosis (Grade IV), which might culminate in damage to the intestines and bladder, the Consumer Disputes Redressal Commission dismissed the complaint. The appellant then filed the present appeal.

Before the Supreme Court, the appellant contended that since only a diagnostic procedure by way of a laparoscopic test was to be conducted, there was no discussion with regard to any proposed treatment.

That when the appellant was under general anesthesia, the respondent rushed out of the operation theatre and obtained the signature of the appellant’s mother on some paper on the pretext that in order to save the appellant’s life an extensive surgery had become necessary.

That since, the appellant had given consent only for laparoscopic test and as her mother’s consent for conducting hysterectomy had been obtained by misrepresentation, there was no valid consent for the radical surgery, much less an informed consent therefore.

That moreover the respondent failed to exhaust conservative treatment before resorting to radical surgery.

That the respondent did not inform the appellant of the possible risks, side effects and complications associated with such surgery, before undertaking the surgical procedure.

On the other hand, the respondent contended that she had informed the appellant that if on laparoscopic examination, the lesion was found to be extensive hysterectomy would have to be performed. That the appellant had agreed to that.

That the appellant’s mother also, when informed in that regard, stated that the respondent might do whatever was best for her daughter that the appellant had signed the consent form only after she read the duly filled up forms and understood their contents.

That the consent given by the appellant’s mother for performing hysterectomy should be considered as valid consent for performing hysterectomy and salpingo-oophorectomy.

Held:

We may now summarize principles relating to consent as follows:

i. A doctor has to seek and secure the consent of the patient before commencing a “treatment” (the term treatment includes surgery also).

The consent so obtained should be real and valid, which means 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 he is consenting to.

ii. The “adequate information” to be furnished by the doctor (or a member of his team) who treats the patient, should enable the patient to make a balanced judgment 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 treatment. 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.

Similarly, there is no need to explain the remote or theoretical risks of refusal to take treatment which may persuade a patient to undergo a fanciful or unnecessary 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.

iii. Consent given only for a diagnostic procedure, cannot be considered as consent for therapeutic treatment. 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 defense 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 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.

In view of our finding that there was no consent by the appellant for performing hysterectomy and salpingo-oophorectomy, performance of such surgery was an unauthorized invasion and interference with the appellant’s body which amounted to a tortious act of assault and battery and therefore, a deficiency in service. But as noticed above, there are several mitigating circumstances.

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 that the appellant may approve the additional surgical procedure when she regained consciousness and the consent by the appellant’s mother gave her the authority.

This is a case of the respondent acting in excess of consent but in good faith and for the benefit of the appellant.

Though the appellant has alleged that she had to undergo hormone therapy, no other serious repercussion is made out as a result of the removal. The appellant was already fast approaching the age of menopause and in all probability required such hormone therapy.

Even assuming 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 25000 as compensation for the AH-BSO surgery to the appellant.

We accordingly allow this appeal and set aside the order of the commission and allow the appellant’s claim in part. The appellant will also be entitled to costs of Rs 5000 from the respondent.