Samira Kohli vs Dr. Prabha Manchanda & Anr

Undisputed facts

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.

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.

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.

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.

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.

Re : Question No.(iii)

47. We may, therefore, summarize the factual position thus :

(iii) There was no consent by appellant for hysterectomy or bilateral salpingo-oopherectomy. The words "Laparotomy may be needed"

Re : Question Nos.(iv) and (v) :

Re : Question No.(vi) :

55. We accordingly allow this appeal and set aside the order of the Commission and allow the appellant's claim in part. If the respondent has already received the bill amount or any part thereof from the appellant (either by executing the decree said to have been obtained by her or otherwise), the respondent shall refund the same to the appellant with interest at the rate of 10% per annum from the date of payment till the date of re-payment. The Respondent shall pay to the appellant a sum of Rs.25,000/- as compensation with interest thereon at the rate of 10% per annum from 19.11.2003 (the date of the order of Commission) till date of payment. The appellant will also be entitled to costs of Rs.5,000 from the respondent.