A case of consent

Pushpa Girimaji

A surgeon, who failed to get the requisite consent from the patient (or her relative) for a surgical procedure has been held guilty of negligence by the highest consumer court in the country and asked to pay a compensation of Rs 2 lakh, along with interest calculated from 1997, at the rate of 9 per cent per annum. In addition, he has been asked to pay costs amounting to Rs 20,000 to the patient.

The central issue in this case was whether the patient or her husband agreed to the doctor deviating from the earlier procedure decided upon for the removal of gall bladder stones. If not, whether the doctor was right in doing so without their consent? As per the complainant, it was decided that the doctor would conduct laparoscopic cholecystectomy. However, the doctor resorted to the conventional method, without consulting them, thereby resulting in the patient getting a long and ugly scar on her body.. And even after the surgery, she did not find relief, and in fact, had to undergo another surgery at another hospital for removal of stones from the bile duct. Besides, during those nine months before the second surgery, despite her repeated complaints of abdominal pain, the surgeon did not diagnose the problem.

The surgeon, on the other hand, argued that when he started the procedure, he found that laparoscopic cholecystectomy was not feasible because the gall bladder was swollen and inflamed and there was adhesion. He, therefore, went out of the operation theatre, explained everything to the husband and got his consent for conventional (open) cholecystectomy. The husband, however, denied this. The anesthetist, who was cross-examined, said he could not remember whether anyone present in the operation theatre went out to inform the patient’s party about the development

In determining negligence in this case, the National Consumer Disputes Redressal Commission relied on the order of the Supreme Court in the case of Samira Kohli vs Dr Prabha Manchanda and Anr ((2008) 2 SCC) where the Apex Court laid down the principles relating to valid consent. One of them was that the consent should be voluntary and on the basis of adequate information concerning the nature of the treatment procedure, so that the person giving the consent knows what he is consenting to.

The Supreme Court also said: "Consent given for a specific treatment procedure will not be valid for conducting some other treatment procedure`85`85.. 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".

On the basis of the Apex Court’’ verdict and the fact that the examination of the consent forms showed that the husband had not signed for open cholecystectomy, the National Commission held the surgeon guilty of negligence.

It also held him guilty of negligence in post-operative care (Mrs Dhanwanti Kaur vs Dr S.K.Jhunjhunwala and another, FA No 93 of 2004, decided on September 1, 2009) This case really focuses attention on the patients’ right to information and choice. In the absence of information, the patient loses the right to choose and to make an informed decision. In the case of Dr Shyam Kumar vs Mr.Rameshbhai Harmanbhai Kachhiya (RP No 1486 of 2001), for example, the doctor denied the patient, the right to take a considered view on whether or not to undergo eye surgery. It is only when the surgery failed and the patient lost vision in both the eyes that the doctor claimed that the patient’s vision was already weak and that he had only tried to improve it through surgery, but could not succeed despite best efforts. The National Commission in this case held the doctor guilty of negligence for failing to inform the patient about the details of the disease afflicting him, the various alternatives available to him and the risks involved in the proposed treatment.

Most often doctors think that patients are too ignorant and do not need to be told anything. And that clearly is a mistake. Hopefully, orders such as these highlighting the rights of consumers will force medical professionals to think differently, respect the rights of patients and communicate better with them.

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