“The consent to operate Uterus does not include Consent to remove it “.

A Doctor Couple was held negligent for removing the uterus of a 25 years patient, without her consent …

REVISION PETITION NO. 968 OF 2015, decided on 14 Feb 2017

Facts in short :
1. The 25 years old lady, from U.P., got admitted herself to the Hospital run by the Petitioners. It was alleged by her that, during the surgery of Hysterectomy with removal of ectopic pregnancy, her uterus was also removed, without her consent.
2. It was alleged that, “consent to operate Uterus” was given and she was never informed that during the procedure for hysterectomy, her uterus would also be removed.

Held :
1. The State Commission considering her age, awarded her compensation of Rs.1 lakh.
2. The National Commission upheld the decision of State Commission. It relied upon the landmark judgment of Apex Court in the case of Samira Kohli vs. Prabha Manchanda (Dr.) – (2008) 2 SCC 1. The facts in the said case were some what similar. The Appellant Samira Kohli was admitted only for a diagnostic procedure, namely a laparoscopy test, and as she had given consent only for a laparoscopy test, it was contnded that her mother’s consent for conducting hysterectomy had been obtained by misrepresentation. The Apex Court has framed the guidelines for “informed Consent” and which are still followed everywhere..
You may see the following link http://judis.nic.in/supremecourt/imgs1.aspx?filename=30116.
The Apex Court has summarized the following principles of consent.
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 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 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 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.
iv) There can be a common consent for diagnostic and operative procedures where they are contemplated. 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.
v) 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 and high degree mentioned in Canterbury but should be of the extent which is accepted as normal and proper by a body of medical men skilled and experienced in the particular field. It will depend upon the physical and mental condition of the patient, the nature of treatment, and the risk and consequences attached to the treatment.

The court at the end observed that the patient was 44 years old, had serious menstrual problems and the doctor thought that surgical removal of her uterus and ovaries would provide permanent relief. Holding that it was a case of the doctor acting in excess of consent but in good faith and for the benefit of the patient, the judgment denied the fee charged by Dr Manchanda and awarded Samira the rather low sum of Rs 25,000 as compensation and her medical bills were waived off.

In Medical Negligence cases, lack of informed consent is the common ground which is raised by the patients and if really there were some lapses, that may tilt the decision against the Doctors.

In the instant case, “consent to operate Uterus was held not to include its removal”. As per Medical definition of Hysterectomy, removal of uterus is included.
Doctor friends may have different opinion about this judgment.. So henceforth while taking consent, be very specific and spend few more minutes in explaining the patient about pros and cons and take signatures. If possible, have a Consent Form in regional language too..

Thanks and Regards,

Adv. Rohit Erande
Pune. ©

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