Delhi

StateCommission

C-04/2003

KAPIL JAIN - Complainant(s)

Versus

DR. P.S. GILL, SURGEON ORTHONOVA INSTITUTE OF ADVANCE SURGERY AND RESEARCH - Opp.Party(s)

16 Aug 2018

ORDER

IN THE STATE COMMISSION: DELHI

(Constituted under Section 9 of the Consumer Protection Act, 1986)

 

Date of Decision: 16.08.2018

 

Complaint No.04/2003

In the matter of:

Kapil Jain S/o. Mr. Subhash Chand Jain E-1, Krishna Park, Devli Road, Khanpur, New Delhi-110062

:

Complainant

           

Versus

 

	Dr. P S Gill, Surgeon C/o. Orthonova Institute of Advance Surgery and Research C-5/29, Safdarjung Development Area Opp. Main ITT Gate, New Delhi-110016	:
	M/s. Orthonova Institute of Advance Surgery and Research C-5/29, Safdarjung Development Area Opp. Main ITT Gate, New Delhi-110016		Opposite Party

 

                            

CORAM  :  N P KAUSHIK

:

Member (Judicial)

 

1.         Whether reporters of local newspaper be allowed to see the judgment?                   Yes

2.         To be referred to the reporter or not?                                                                  Yes

 

 

Cases Relied Upon

 

1.         Jacob Mthew v. State of Punjab and Another, AIR 2005 SC 3180

2.         Sulochana Lad v. Dr. Mohan Gerra & Anr., IV (2016) CPJ 505 (NC)

3.      Dr. Laxman Balkrishna Joshi v. Dr. Trimbak Bapu Godbole and Anr., MANU/SC/0362/1968

 

 

N P KAUSHIK – MEMBER (JUDICIAL)

 

 

 

JUDGEMENT

1. Complainant Sh. Kapil Jain has filed the present complaint alleging medical negligence on the part of Dr. P S Gill, Surgeon (in short OP1 doctor) in Orthonova Institute of Advance Surgery and Reearch, Safdarjung Enclave, New Delhi  which has also been impleaded (in short OP2 hospital).  Facts in brief of the complaint are that on 09.01.2001, complainant met with an accident near Siri Fort Road, New Delhi, at about 8.00 p.m. when he was riding his motorcycle.  Wrist of both the hands were injured.  He was admitted to OP2 Hospital.  At about 9:00 pm, OP1 doctor told the complainant that in view of the nature of fractures, he was required to undergo surgery immediately.  After taking x-rays, surgery of the left hand was conducted the next morning i.e. on 10.01.2001.  Complaint’s father was told that the operation was successful.  Complainant was discharged on 12.01.2001.  at his home, complainant noticed swelling in his hand.  He had a shooting pain which increased day-by-day.  He brought the same to the knowledge of the OP1 doctor who brushed that aside by saying that it was on account of surgery.  On 13.01.2001, the bandages of the complainant were changed and the next appointment of 18.01.2001 was given.  On 18.01.2001 complainant again complained of the shooting pain to the OP1 doctor who assured that the pain would subside evenin a couple of days.  Pain did not subside even in 20 days after surgery.  After 10 days of the surgery his hand was plastered.  Plaster continued for 4 weeks.  On 28.02.2001, OP1 doctor removed the plaster and asked the complainant to come for physiotherapy.  Grievance of the complainant is that after removal of the plaster he saw a crooked and abnormal looking hand.  It was not functioning properly.  OP1 doctor told the complainant that the dislocated and crooked bones would come to their place after physiotherapy.  Complainant kept doing physiotherapy from 01.02.2001 till 14.03.2001 but there was no improvement. 

 

2. On 16.03.2001 complainant visited Dr. Hans Nagar who after examining the patient diagnosed it as a case of “volar and radical displacement”.  Dr. Hans advised corrective surgery and told that the operation had not been performed properly.  Patient was asked to come on 21.03.2001.  Now CT-scan was advised which was done on 23.03.2001.  MR Centre, Green Park, New Delhi gave its findings on CT-scan.  Complainant visited Dr. Hans Nagar again on 26.03.2001.  After discussing with other doctors, Dr. Nagar on 14.04.2001 advised surgery for reconstruction and fixation of the bones.  Said surgery was to be done after taking bones from the waist.  He also opined that OP1 doctor ought have done rectification surgery immediately after the unsuccessful operation.  Timely treatment would have brought the hands back to normalcy and reversed the damage.  Complainant was asked to come after taking his M.Com. exams which took place on 16.04.2001.  After the exams, complainant visited Apollo Hospital on 23.05.2001 and consulted Dr. M N Sehar.  Dr. Sehar agreed with the opinion of Dr. Hans Nagar and informed that surgery was required for rectification of the difficulty caused due to surgery done by OP1.  Dr. Sehar advised removal of plates fixed and open grafting.  He also observed that not doing rectification surgery immediately after unsuccessful operation, caused permanent damage to the hands.  The same could not now be reversed.  Dr. Sehar also told the complainant that there were 30% chances of recovery and restoring the hand to its normal function.  Restoration and capacity of the hand would be limited to 70% only. 

 

3. Complainant now consulted Dr. (Prof.) S M Tuli on 03.07.2001 who advised surgery and fusion of the bones.  He told that the movement of the wrist would be satisfactory and the pain too would be considerably reduced.  However even after fusion of the bones, the complainant would remain handicapped. 

 

4. Finding a conflict of opinions amongst the doctors, complainant visited Dr. Subhash Shallaya of Apollo  Hospital, New Delhi.  Dr. Shallaya told that OP1 doctor had caused damage and he could make an effort to rectifying the same.  His hand however could not be normal again. 

 

5. On 25.09.2001 complainant consulted Dr. D K Gupta of Batra Hospital, New Delhi.  Dr. Gupta advised surgery stating that there was subluxation of bones in the wrist.  He was not sure of the extent of success. 

 

6. On 24.02.2002 complainant again visited OP2 hospital and confronted OP1 doctor with various opinions.  OP1 doctor consoled the complainant stating that he would perform the rectifying surgery “arthodesis of wrist joint in functional position” free of cost.  The said surgery however would otherwise cost between Rs.40,000/- and Rs.50,000/-.  OP1 doctor issued a certificate on 22.06.2002 to the complainant, reading as under:
   1.  

 

TO WHOMSOEVER IT MAY CONCERN

 

This is to certify that x-ray shows mal-united Barton’s fracture of left hand with radiocarpal subluxation.

 

Plan: Arthrodesis of Wrist Joint in functional position.”

 

 

7. Complainant submitted that the OP1 doctor did not mention in the discharge summary about the mal-united barton’s fracture.  Contention of the complainant is that OP1 doctor performed the surgery negligently. 

 

8. Complainant now visited Dr. P S Maini on 08.03.2002 at Sama Nursing Home, New Delhi.  Dr. Maini told the complainant that proposed operation would remove the pain but wrist movement would not be there.  In June 2002, again complainant went to OP1 doctor who expressed his regrets and told that he could operate the complainant again.  OP1 doctor and one of his colleagues offered to pay compensation quantum of which was to be decided by OP1 doctor.  After pursuing the matter with OP1 doctor for 5 months, no payment was paid to him.  Finally on 09.10.2001, complainant was told that OP1 doctor had taken a policy from an insurance company.  Complainant thereafter visited Dr. Avdesh Verma a psychiatrist.  Certain medicines were prescribed.

 

9. With the aforesaid allegations, complainant submitted that he was not capable for doing things like driving, lifting heavy objects and helping his parents.  He was unmarried and his relatives came to know of the said disability.  Prospectus of his marriage were affected.  He feared disruption in his sexual life because of this disability and he might not have a qualitative sexual life.  He could also not play cricket or any other game. 

 

10. While pointing out deficiency in the treatment, complainant stated that OP1 doctor failed to perform corrective surgery within the period of one month from the date of surgery in question that had taken place on 10.01.2001.  All the doctors whom he consulted were of the same opinion.  Complainant further submitted that the OP1 doctor should have used the procedure of joining the bones with the help of wires alongwith the plates.  OP1 doctor however used plates only.  There was thus a mistake in treatment.  Last submission of the complainant is that the OP1 doctor failed to disclose to him the condition of his hand especially so when he was complaining of shooting pain.  OP1 doctor concealed the actual condition to cover up the negligence on his part.  He rather kept on increasing the doses of medicines. 

 

11. Keeping in view the above said facts complainant submitted that surgeries of wrist joint replacement are performed in New York, New Jersey and Maryland (Baltimore).  These are not performed in India.  He would have to incur Rs.5 lakhs for the said surgery besides an expenditure of Rs.2 lakhs for boarding and lodging and Rs.1 lakh on air travel with an attendant.  Complainant thus prayed for payment of Rs.5 lakhs as compensation towards disability and another Rs.5 lakhs towards mental agony suffered.  He has also sought refund of Rs.33,376/- spent by him in the treatment alongwith consultation fee of Rs.10,000/-.  Rs. 50,000/- have been asked for surgery for the reconstruction of ligament. 

 

12. In his defence OP1 doctor submitted that he conducted surgery taking all due care and discharged the patient on 12.01.2001.  X-rays were taken of the operated portion of the wrist and forearm which showed stability for that kind of fracture.  Complainant being satisfied with the recovery stopped visiting him after a period of about 2 months of treatment.  He stated that in the case of communited fracture of the wrist, complete recovery takes about six months.  Complainant on hearing that there was a malunion, demanded Rs.25 lakhs as compensation from him.  He threatened of tarnishing his professional image.  He used to call him at odd hours and extend threats.  Denying the allegation of negligence, OP1 doctor stated that he followed standard procedure of surgery.  Malunion as complained of was not because of medical negligence.  Such malunion is not alien to the world of surgery.  It can be rectified by surgery.  OP1 doctor stated that he had informed the patient and his attendants of communited fracture in the left wrist.  They were also informed that chances of full recovery of the left wrist were less but not impossible. 

 

13. Coming to the treatment, OP1 doctor stated that the right forearm of the complainant was first operated and the position got stabilised without much difficulty.  His left wrist had communited fracture and the position was stabilised after inserting ‘T’-plate.  Post operative x-rays showed acceptable reduction for that kind of fracture Patient was asked to come up for a follow up and physiotherapy.  After operation, x-rays was deciphered to the patient.  Reduction of the fracture was within acceptable limits.

 

14. OP1 doctor contended that malunion could be because of a number of reasons including anatomical reasons.  He denied the allegation that the said malunion was because of any negligence on his part.

 

15. Before proceeding further it may be mentioned here that this Commission invited Experts’ Opinion in the matter.  Maulana Azad Medical College, New Delhi vide its letter dated 12.12.2017 furnished the Experts’ Opinion which is reproduced below:

“The committee under chairmanship of Prof. Manoj Kumar met at his chamber room no. 608 on 11.11.2016, 18.11.2016 and 05.12.2016; and it was attended by Dr. Lalit Maini and Dr. Dhananjaya Sabat.

 

The documents provided in the record were examined in details and the following points were noted.

 

• The diagnosis made by the surgeon, i.e. communited fracture lower end radius of left wrist and fracture shaft radius of right forearm is correct.  The opinion regarding medical negligence has been sought for the fracture on the left wrist.

 

• Such fractures need operative fixation; hence the treatment provided to the patient is in line with the standard operating procedure.

 

• Keeping in mind the knowledge and experience, implants and instrumentation available  in the year 2001, the surgeon has done a satisfactory work as far as the surgical procedure is concerned.  There is no mention of any immediate post operative complication as per the documents in the record.

 

• The patient noted a deformed wrist at 6 weeks post surgery which was diagnosed as a malunited fracture of distal radius, which is not uncommon even after surgical treatment of such communited fractures.

 

The light of t he above, the committee is of opinion that there is no case of medical negligence is made out against the treating surgeon.

 

Sd/- (Dr. Dhananjaya Sabat) Asstt. Prof. Of Orthopedics	Sd/-                  (Dr. Lalit Maini) Professor Orthopedics
Sd/- Dr. Manoj Kumar (Chairman, Director Professor Orthopaedics)”

 

16. I have heard the arguments addressed at length by the Counsels for the complainant Sh. Jai A. Dehadrai, Advocate and the Counsel for the OPs Sh. Rajiv Sharma, Advocate.

 

17. An important question that now arises is whether the experts’ opinion stands as such or the complainant has been able to upset the same.  It may be mentioned here that complainant has not filed objections to the ‘experts’ opinion’ after the same was received from MAMC, New Delhi.  Let us now deal with the experts’ opinion in the light of allegations made by the complainant in his complaint and arguments (written as well as oral ones).  The main grievance of the complainant is that after his discharge from OP2 hospital he found a lot of swelling in his hands besides a shooting pain which increased day-by-day.  His contention is that he was never told that the operation had been unsuccessful or that OP1 doctor failed to rectify the fractured bones.  Complainant alleged that performing operation negligently caused ‘malunion of distal radius’.  It was on 28.02.2001 when he discovered the said malunion on removal of the plaster.  Physiotherapy done thereafter did not make much difference.  Complainant met several doctors thereafter whose opinions are referred to above.  On the other hand the case of the OPs is that malunion was a common complication of distal radius fracture.  OPs have relied upon a text book titled “Fractures in Adults” by Rockwood and Greens.  Relevant portion is reproduced below:
    •  

 

Confirms that, “... Established malunion is unfortunately a common complication of distal radius fracture.The malunion may be comsmetic, an extraatricular deformity, or an intraarticular deformity.....”

 

18. No medical literature has been placed on record by the complainant to show that in case of distal radius fracture, malunion occurs only when there is some negligence in performing surgery. 

 

19. In the present case left wrist was opened and fractured side was exposed.  After achieving the reduction a ‘T’ shaped buttress plate was applied fixed with screws.  Complainant has simply alleged that there was negligence in the performance of the aforesaid procedure.  In what manner negligence happened, is not indicated.  The plea of the complainant that the OP1 doctor should have used k-wires besides the plate, is not supported by any medical literature.  From the above referred book by ‘Rockwood and Greens’, OP1 doctor referred to the procedure to be followed which reads as under:

“In the book, Rockwood & Green’s “Fracture in Adults” Volume 1, Chapter 12, at page 7897 & 789, it is stated that, “one of the recent advances in the treatment of distal radius fractures is the more frequent application of open reduction and internal fixation, especially for intra-articular fractures....open reduction is preferred when joint incongruity is evident by articular surface displacement of more than 2 mm.... A palmary displaced fracture of Smith’s or palmar Barton’s type is better approached through a palmar incision, with application of buttress plate as described in......”

 

20. During the course of arguments complainant submitted that the x-rays taken immediately after the surgery showed that realignment of the bones had not taken place properly.  Complainant was carrying an x-rays in his hand which he did not place on record despite Commission’s directions.  He did not place before the body of experts the said x-rays.  Purportedly the photocopy of the said X-ray is exhibited as Exh. ‘F’.  This does not show any such abnormality to the naked eyes. Genuineness of the X-ray film in possession of the complainant, if any, has not been proved by way of affidavit.  Be that as it may, it is not the case of the parties that there could be a reduction in restoring the bone to its original position to the extent of 100%.  OP1 doctor submitted that the reduction attained was acceptable.  With the aforesaid grounds of attack, the complainant has failed to dislodge the experts’ opinion.

 

21. It would be relevant to mention here that the complainant did not opt for correction surgery either from OP2 hospital or from elsewhere.  He himself appears to have opted for conservative treatment of going for physiotherapy alone. 

 

22. Experts opined that after the removal of the plaster, the wound was found healthy and there was no infection of any sort as is clear MRI report (Annexure ‘H’`
23.  to the complaint) which shows that there was no infection.  Relevant portion of the MRI report  is reproduced below:

“There is evidence of old fracture of distal shaft of radius with nailing in situ.There is rarefaction of radius and distal carpal bones.Fractures is extending till articular surface.There is no significant collection in surrounding soft tissues.

 

OPINION : CT findings are suggestive of old fracture of distal radius with nailing in situ with osteoporotic changes Please correlate clinically.”

 

 

It shows that a reasonable degree of care and caution was used while doing surgery.

 

24. Complainant has failed to place on record any material to show that the reduction achieved was not acceptable.  He has also not been able to show that in the year 2001 there existed a treatment under which a better reduction or better alignment could be achieved. 

 

25. In the case of Dr. Laxman Balkrishna Joshi v. Dr. Trimbak Bapu Godbole and Anr., MANU/SC/0362/1968, the Apex Court observed that law of medical negligence provides that a practioner must bring to his task a reasonable degree of skill and knowledge.  He must exercise a reasonable degree of care.  It was also held that neither the highest nor a very low degree of care and competence judged in the light of the particular circumstances of each case is what the law requires.  The doctor no doubt has a discretion in choosing treatment which he proposes to give to the patient.

 

26. In the case of Jacob Mathew v. State of Punjab and Anr., AIR 2005 SC 3180, the Hon’ble Supreme Court while dealing at length the subject of ‘medical negligence’ summed up its conclusions, the relevant portion of which runs as under:

“49.     sum up our conclusions as under:-

(1) Negligence is the breach of a duty caused by omission to do something which a reasonable man guided by those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do. The definition of negligence as given in Law of Torts, Ratanlal & Dhirajlal (edited by Justice G.P. Singh), referred to hereinabove, holds good. Negligence becomes actionable on account of injury resulting from the act or omission amounting to negligence attributable to the person sued. The essential components of negligence are three: 'duty', 'breach' and 'resulting damage'.

(2) Negligence in the context of medical profession necessarily calls for a treatment with a difference. To infer rashness or negligence on the part of a professional, in particular a doctor, additional considerations apply. A case of occupational negligence is different from one of professional negligence. A simple lack of care, an error of judgment or an accident, is not proof of negligence on the part of a medical professional. So long as a doctor follows a practice acceptable to the medical profession of that day, he cannot be held liable for negligence merely because a better alternative course or method of treatment was also available or simply because a more skilled doctor would not have chosen to follow or resort to that practice or procedure which the accused followed. When it comes to the failure of taking precautions what has to be seen is whether those precautions were taken which the ordinary experience of men has found to be sufficient; a failure to use special or extraordinary precautions which might have prevented the particular happening cannot be the standard for judging the alleged negligence. So also, the standard of care, while assessing the practice as adopted, is judged in the light of knowledge available at the time of the incident, and not at the date of trial. Similarly, when the charge of negligence arises out of failure to use some particular equipment, the charge would fail if the equipment was not generally available at that particular time (that is, the time of the incident) at which it is suggested it should have been used.

(3) A professional may be held liable for negligence on one of the two findings: either he was not possessed of the requisite skill which he professed to have possessed, or, he did not exercise, with reasonable competence in the given case, the skill which he did possess. The standard to be applied for judging, whether the person charged has been negligent or not, would be that of an ordinary competent person exercising ordinary skill in that profession. It is not possible for every professional to possess the highest level of expertise or skills in that branch which he practices. A highly skilled professional may be possessed of better qualities, but that cannot be made the basis or the yardstick for judging the performance of the professional proceeded against on indictment of negligence.

(4) The test for determining medical negligence as laid down in Bolam's case [1957] 1 W.L.R. 582, 586 holds good in its applicability in India.”.

 

27. In view of the discussion above I am of the considered opinion that no case of medical negligence is made out against the OPs.  OPs have exercised a reasonable degree of skill and knowledge in doing the surgery.  They are not guilty of medical negligence as such. 

 

28. Another grievance of the complainant is that he was not informed of the said malunion of bone.  Perusal of the pleadings of the parties shows that before issuing a certificate dated 26.02.2002 to the complainant to the effect that the malunion of the bone had taken place, OPs in no documents indicated the factum of malunion. 

 

29. OPs relied upon the consent form Ex.R-1/2.  Its perusal shows that it was of a general nature.  Complainant or his relatives were never informed that there were chances of ‘malunion’.   Complainant ought have been made clear that the results of surgery may not be totally to his satisfaction.  Instead of making the things clear to the complainant, OPs advised him to undergo physiotherapy. 

 

30. In the case of Sulochana Lad vs. Dr. Mohan Gerra & Anr., IV (2016) CPJ 505 (NC).  Hon’ble National Commission dealt with the concept of informed consent in detail.  Relevant paras of the said judgement are reproduced below. 

“21.     Fundamentally, the law requires the disclosure to the patient, information relating to the diagnosis of the disease; nature of the proposed treatment; potential risks of the treatment and the consequences of the patient refusing the suggested line of treatment.  Disclosure of such information is the basic attribute of an informed consent and is considered mandatory in every field of medicine or surgical procedure.  The only exception to the general rule is the emergency medical circumstances, where either the patient is not in a medical condition or mental stage to take a conscious decision in this regard.  In India, the standard of disclosure of information to the patient regarding ailment and recommended treatment, with attendant risks of treatment, necessary to secure his information.  Consents, as ensuciated in bolam vs. Frierl Hospital Management Committee (1957) 2 All.ER 118 commonly referred to as the Bolam Test, is being applied.  The standards laid down in Bolam, were: (i) when a vhope of cure was submission to a particular therapy, he could not be critised if, beliving the danger involve4d in the treatment to be minimal, did not stress them to the patient.  In other words, what degree of disclosure of risks, is best calculated to assist a particular patient to make a rational choice as to whether or not to undergo a particular treatment must primarily  be left to clinical judgement of the doctor: and (ii) in order to recover damages for failure to give warning about the danger, the complainant must show not only that the failure was negligent but also that if he had been warned, he would not have consented to the treatment. 

            22.       In Malay Kumar Ganguly vs. Sukumar Mukherjee and Others, III (2009) CPJ 107 (SC) dealing with the question of right of the patient to be informed about the recommended treatment for the ailment he is suffering from and the risks involved in the treatment, while observing that the only reasonable guarantee  a patient’s right of bodily integrity and self determination is for the Courts to apply a stringent standard of disclosure in conjunction with a presumption of proximate cause, at the same time, a reasonable measure of autonomy for the doctor is also pertinent to be safeguarded from unnecessary interference, the Hon’ble Supreme Court said as follows:

            “142. Patient’s by and large are ignorant about the disease or side or adverse effect of a medicine.  Ordinarily the patients are to be informed about the admitted risk, if any.  If some medicine has some adverse effect or some reaction is anticipated, he should be informed thereabout.  It was not done in the instance case.  In Sidaway vs. Board of Governors of Bethlehem Royal Hospital The House of Lords, inter alia held as under : (WLR PP.504 H – 505 C)

“The decision what degree of disclosure of risks is best calculated to assist a particular patient to make a rational choice as to whether or not to undergo a particular treatment must primarily be a matter of clinical judgement:  

An issue whether non-disclosure of a particular risk or cluster of risks in a particular case should be condemned as a breach of the doctor’s duty of care is an issue to be decided primarily on the basis of expert medical evidence.In the event of a conflict of evidence the judge will have to decide whether a responsible body of medical opinion would have approved of non-disclosure in the case before him.

 

A judge might in certain circumstances come to the conclusion that disclosure of a particular risk was so obviously necessary to an informed choice on the part of the patient that no reasonably prudent medical man would fail to make it, even in a case where no expert witness in the relevant medical filed condemned the non-disclosure as being in conflict with accepted and responsible medical practice.”

 

143. The law on medical negligence also has to keep up with the advances in the medical science as to treatment as also diagnostics. Doctors increasingly must engage with patients during treatments especially when the line of treatment is a contested one and hazards are involved. Standard of care in such cases will involve the duty to disclose to patients about the risks of serious side effects or about alternative treatments. In the times to come, litigation may be based on the theory of lack of informed consent.   

 

144.  

 

In Samira Kohli (supra), the principles, relating to Consent, have been summarized 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 defence 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 conpsent 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 Canterbur`y 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.”

 

 

31. Applying the above said law to the case in hand it is clear that the consent form Ex. R-1/2 obtained from the complainant did not conform to the principles of law laid down.  OP1 and OP2 therefore, were ‘deficient in service’ in not taking requisite informed consent before undertaking surgery.  Ends of justice shall be met in case the complainant is paid an amount of Rs.5 lakhs for the said ‘deficiency in service’.   Accordingly OPs are directed to pay an amount of Rs.5 lakhs to the complainant within a period of 60 days from today failing which the amount shall carry interest @7% per annum.  Complainant is accordingly disposed of.  File be consigned to Records. 

 

 

 

(N P KAUSHIK)

MEMBER (JUDICIAL)

(am)