SC Relief To A Surgeon Who Was Sued For Negligence For Performing Conventional Surgery Instead Of Laparoscopic Surgery To Remove Gall Bladder [Read Judgment]

“It was not an unauthorized act of the appellant and he could legally perform on the basis of original consent (clause 4) of respondent No.1 as also on the basis of the further consent given by the respondent No.1’s husband.”

The Supreme Court on Monday set aside a National Consumer Disputes Redressal Commission (NCDRC) order against a surgeon that found him ‘negligent’ for performing conventional surgery and removed gall bladder even though there was no express consent of the patient.

The patient had approached the consumer forum complaining that she had never given her consent for performing general surgery of her gall bladder rather she had given consent for performing laparoscopy surgery only but the surgeon performed general surgery of her gall bladder which resulted in putting several stitches and scars on her body.

Before the consumer forum, the surgeon’s version was that, after starting laparoscopic surgery, he noticed swelling, inflammation and adhesion on her gall bladder and he came out of the operation theater and disclosed these facts to her husband and told him that in such a situation it would not be possible to perform laparoscopic surgery and only conventional procedure of surgery is the option to remove the malady. He added that the conventional surgery was performed only after obtaining the consent of the husband.

Though the state forum dismissed the complaint, the national commission awarded a compensation of Rs.2 lakhs to be paid by the surgeon to the patient on account of negligence on his part in performing the surgery. The surgeon approached the apex court challenging this order.

Referring to the consent form signed by the patient, the bench comprising Justice Abhay Manohar Sapre and Justice Vineet Saran (in S.K. Jhunjhunwala vs.  Dhanwanti Kumar) observed that it empowers the performing doctor to perform such additional operation or procedure including the administration of a blood transfusion or blood plasma as they or he may consider substituting necessary or proper in the event of any emergency or if any anticipated condition is discovered during the course of the operation.

 “In other words, we are of the view that there was no need to have another Consent Form to do the conventional surgery in the light of authorization contained in clause 4 itself because the substitute operation was of a same organ for which the former one was advised except with a difference of another well-known method known in medical subject to get rid of the malady,” the bench said.

The court also took into account the consent given by the husband to perform the conventional operation. It said: “There is no reason to disbelieve this fact stated by the appellant in his evidence. It is, in our opinion, a natural conduct and the behavior of any prudent doctor, who is performing the operation to apprise the attending persons of what he noticed in the patient and then go ahead accordingly to complete the operation.”

The commission had relied on apex court judgment in Samira Kohli vs. Dr. Prabha Manchand to hold that there was no consent to perform conventional surgery. In that case, the SC had held: “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 defence in an action in tort for negligence or assault and battery.”

But the bench quoted the ‘exception’ in the same judgment which reads: “The only exception to this rule is where the additional procedure though unauthorised, is necessary in order to save the life or preserve the health of the patient and it would be unreasonable to delay such unauthorised procedure until patient regains consciousness and takes a decision.”

Setting aside the National Consumer Commission order, the bench said that it is a clear case of grant of consent to the surgeon to perform the substituted operation of gallbladder and that it was not an unauthorized act and he could legally perform on the basis of original consent as also on the basis of the further consent given by her husband.