# j> SAMIRA KOHLI v. DR. PRABHA MANCHANDA & ANR

- **Citation:** [2008] 1 S.C.R. 719
- **Court:** Supreme Court of India
- **Decided:** 2008-01-16
- **Case number:** Civil Appeal No.1949 of 2004
- **Bench:** B.N. Agrawal, P.P. Naolekar, R.V. Raveendran
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/j-samira-kohli-v-dr-prabha-manchanda-anr-24179
- **Pages:** 62

## Headnote

>
_,_
Consumer Protection Act, 1986:
Medical Negligence:
c
Deficiency in service - Doctor performing radical surgery
without obtaining consent from patient resulting in removal of
her reproductive organs - Compensation - Complaint rejected
by National Consumer Commission - Correctness of - Held:
Right of patient with regard to his/her body inviolable - It would D
be unreasonable for a doctor to start particular treatment!
surgery without the consent of patient unless it was considered
necessary to save life/preserve health of the patient- Consent
of patient for diagnostic procedure/surgery cannot be construed E
as permission to perform therapeutic surgery - Appellant-
. victim admitted in the clinic of respondent only for diagnostic
purposes - Before the victim regained consciousness, radical
surgery performed resulting in removal of her uterus and
ovaries - Under the circumstances, it cannot be said that she
F
was informed before performing the surgery- When the patient
was still at the diagnosis state, her mother's consent for radical
surgery was no consent in the eyes of law- Moreover, consent
by mother cannot be treated as valid/real consent - National
Commission failed to notice that the question was not about
the correctness of the decision to remove uterus and ovaries G
-t
but failure to obtain consent for removal of the organs -
Laparoscopic examination revealed that the victim was
suffering from endometriosis - It could be treated either by
conservative treatment or by hysterectomy - Moreover,
719
H
720
SUPREME COURT REPORTS
[2008] 1 S.C.R.
A appropriateness of treatment procedure does not make the
'"":
treatment legal in the absence of consent therefor -
Performance of such surgery without consent of the patient
was an unauthorized invasion and interference with the body
of the victim, hence, a tortuous act of assault and battery
B amounting to deficiency in service - But, in view of mitigating
circumstances, interest of justice would be served by denying
the respondent fee charged for surgery and by granting
compensation of Rs. 25, 0001- to victim for unauthorizedly
,...
performing surgery -
Tort -
Battery -
Negligence -
~
c Compensation.
Medical Profession - Catch in all clauses - Scope of.
Words and Phrases:
'consent', 'real consent' and 'unfound consent' - Meaning
D of.
Appellant, an unmarried woman, aged 44 years
r
visited the clinic of first respondent for an ultrasound test.
The test was conducted and, on the basis of the
ultrasound report, the respondent allegedly informed her
E that she was suffering from fibroids and for further
confirmation a laproscopic test was required to be
conducted. On the next day, when she went to the clinic
for a diagnostic laproscopy, allegedly her signatures on
blank printed forms were obtained by an Assistant doctor
F of respondent without giving her opportunity to read the
contents. When she was under general anesthesia,
respondent rushed out of the operation theater and told
her aged mother that the patient had started bleeding
profusely and in order to save her life, extensive surgery
G need to be performed and her signatures were obtained
on some papers without waiting the appellant to regain
j
·~
consciousness and radical surgery was performed on
her, resulting in removal of her reproductive organs. When
she protested, the respondent rudely responded.
H According to the appellant, she was going to marry within
•
SAMIRA KOHLI v. DR. PRABHA MANCHANDA & ANR.
721
a month, therefore, she would have refused consent for A
removal of her reproductive organs and would have opted
for constructive treatment, had she been informed about
the surgery. Appellant lodged a complaint in the Police
Station against the respondent for their negligence and
unauthorizedly removing her reproductive organs. The B
appellant also filed a complaint before the National
Consumer Commission claiming a compensation of Rs.
25 lakhs from the respondent for negligently treating her
resulting in loss of her

## Text

_Characters 0–39,929 of 126,716. This is a partial read: ask again with offset=39929 for what follows._

[2008] 1 S.C.R. 719
j>
SAMIRA KOHLI
A
v.
DR. PRABHA MANCHANDA & ANR.
(C.A. No. 1949 of 2004)
JANUARY 16, 2008
8
(B.N. AGRAWAL, P.P. NAOLEKAR AND
R.V. RAVEENDRAN, JJ.)
>
_,_
Consumer Protection Act, 1986:
Medical Negligence:
c
Deficiency in service - Doctor performing radical surgery
without obtaining consent from patient resulting in removal of
her reproductive organs - Compensation - Complaint rejected
by National Consumer Commission - Correctness of - Held:
Right of patient with regard to his/her body inviolable - It would D
be unreasonable for a doctor to start particular treatment!
surgery without the consent of patient unless it was considered
necessary to save life/preserve health of the patient- Consent
of patient for diagnostic procedure/surgery cannot be construed E
as permission to perform therapeutic surgery - Appellant-
. victim admitted in the clinic of respondent only for diagnostic
purposes - Before the victim regained consciousness, radical
surgery performed resulting in removal of her uterus and
ovaries - Under the circumstances, it cannot be said that she
F
was informed before performing the surgery- When the patient
was still at the diagnosis state, her mother's consent for radical
surgery was no consent in the eyes of law- Moreover, consent
by mother cannot be treated as valid/real consent - National
Commission failed to notice that the question was not about
the correctness of the decision to remove uterus and ovaries G
-t
but failure to obtain consent for removal of the organs -
Laparoscopic examination revealed that the victim was
suffering from endometriosis - It could be treated either by
conservative treatment or by hysterectomy - Moreover,
719
H
720
SUPREME COURT REPORTS
[2008] 1 S.C.R.
A appropriateness of treatment procedure does not make the
'"":
treatment legal in the absence of consent therefor -
Performance of such surgery without consent of the patient
was an unauthorized invasion and interference with the body
of the victim, hence, a tortuous act of assault and battery
B amounting to deficiency in service - But, in view of mitigating
circumstances, interest of justice would be served by denying
the respondent fee charged for surgery and by granting
compensation of Rs. 25, 0001- to victim for unauthorizedly
,...
performing surgery -
Tort -
Battery -
Negligence -
~
c Compensation.
Medical Profession - Catch in all clauses - Scope of.
Words and Phrases:
'consent', 'real consent' and 'unfound consent' - Meaning
D of.
Appellant, an unmarried woman, aged 44 years
r
visited the clinic of first respondent for an ultrasound test.
The test was conducted and, on the basis of the
ultrasound report, the respondent allegedly informed her
E that she was suffering from fibroids and for further
confirmation a laproscopic test was required to be
conducted. On the next day, when she went to the clinic
for a diagnostic laproscopy, allegedly her signatures on
blank printed forms were obtained by an Assistant doctor
F of respondent without giving her opportunity to read the
contents. When she was under general anesthesia,
respondent rushed out of the operation theater and told
her aged mother that the patient had started bleeding
profusely and in order to save her life, extensive surgery
G need to be performed and her signatures were obtained
on some papers without waiting the appellant to regain
j
·~
consciousness and radical surgery was performed on
her, resulting in removal of her reproductive organs. When
she protested, the respondent rudely responded.
H According to the appellant, she was going to marry within
•
SAMIRA KOHLI v. DR. PRABHA MANCHANDA & ANR.
721
a month, therefore, she would have refused consent for A
removal of her reproductive organs and would have opted
for constructive treatment, had she been informed about
the surgery. Appellant lodged a complaint in the Police
Station against the respondent for their negligence and
unauthorizedly removing her reproductive organs. The B
appellant also filed a complaint before the National
Consumer Commission claiming a compensation of Rs.
25 lakhs from the respondent for negligently treating her
resulting in loss of her reproductive organs and
consequential loss of opportunity to become a mother, c
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. The complaint was 0
dismissed by the Commission. Hence the present appeal.
The questions which arose for determination in this
appeal were as to whether informed consent of a patient
is necessary for surgical procedure involving removal of
reproductive organs; as to whether consent given for E
diagnostic surgery could be construed as consent for
performing additional/further surgical procedure, either
as conservative treatment or as radical treatment, without
the specific consent for such additional or further surgery;
as to whether there was consent by the appellant, for the F
abdominal hysterectomy and Bilateral Salpingooopherectomy performed by the respondent; as to
whether the respondent had falsely invented a case that
appellant was suffering from endometriosis to explain the
unauthorized and unwarranted removal of uterus and G
ovaries; and as to whether such radical surgery was either
to cover-up negligence in conducting diagnostic
laparoscopy or to claim a higher fee and also even if
appellant was suffering from endometriosis; as to whether
the respondent ought to have resorted to conservative
H
722
SUPREME COURT REPORTS
[2008] 1 S.C.R.
A treatment/surgery instead of performing radical surgery;
and as to whether the Respondent is guilty of the tortuous
act of negligence/battery amounting to deficiency in
service, and consequently liable to pay damages to the
appellant.
B
Allowing the appeal, the Court
HELD: 1.1 Consent in the context of a doctor-patient
relationship, means the grant of permission by the patient
for an act to be carried out by the doctor, such as a
c diagnostic, surgical or therapeutic procedure. Consent
can be implied in some circumstances from the action of
the patient. (Para - 14) (742-F]
1.2 There is, however, a significant difference in the
nature of express consent of the patient, known as 'real
D consent' in UK and as 'informed consent' in America. In
UK, the elements of consent are defined with reference
to the patient and a consent is considered to be valid and
'real' when (i) the patient gives it voluntarily without any
coercion; (ii) the patient has the capacity and competence
E to give consent; and (iii) the patient has the minimum of
adequate level of information about the nature of the
procedure to which he is consenting to. On the other
hand, the concept of 'informed consent' developed by
American courts, while retaining the basic requirements
F consent, shifts the emphasis to the doctor's duty to
disclose the necessary information to the patient to
secure his consent. (Para - 14) (742-G & H; 743-A & B]
Taber's Cyclopedic Medical Dictionary and Principles
of Medical Law published by Oxford University Press --
G Second Edition, edited by Andrew Grubb, Page 133 -
referred to.
1 ~
Canterbury v. Spence - 1972 [464] Federal Reporter
2d. 772; Schoendorffvs. Society of New York Hospital- (1914)
H 211 NY 125: and Re: F. 1939(2) All ER 545 - referred to.
l
SAMIRA KOHLI v. DR. PRABHA MANCHANDA & ANR.
723
1.3 The principle of necessity by which the doctor is A
permitted to perform further or additional procedure
(unauthorized) is restricted to cases where the patient is
temporarily incompetent (being unconscious), to permit
the procedure delaying of which would be unreasonable
because of the imminent danger to the life or health of the B
patient. (Para -16) [746-B & CJ
Murray vs. McMurchy - 1949 (2) DLR 442 and Marshell
vs. Curry - 1933 (3) DLR 260 - referred to.
1.4 Howsoever practical or convenient the reasons c
may be, they are not relevant. What is relevant and of
importance is the inviolable nature of the patient's right
in regard to his body and his right to decide whether he
should undergo the particular treatment or surgery or not.
Unless the unauthorized additional or further procedure 0
is necessary in order to save the life or preserve the health
of the patient and it would be unreasonable (as contrasted
from being merely inconvenient) to delay the further
procedure until the patient regains consciousness and
takes a decision, a doctor cannot perform such procedure E
without the consent of the patient. (Para - 17) [7 46-F & G]
2.1 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 F
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 G
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. (Para - 19) [7 48-D, E & F]
Bowater v. Rowley Regis Corporation - [1944] 1 KB 476 H
724
SUPREME COURT REPORTS
[2008) 1 S.C.R.
A and Sa/go vs. Leland Stanford 154 Cal. App. 2d.560 (1957) -
1~
referred to.
2.2 A risk is material 'when a reasonable person, in
what the physician knows or should know to be the
patient's position, would be likely to attach significance
8 to the risk or cluster of risks in deciding whether or not to
forego the proposed therapy'. The doctor, therefore, is
required to communicate all inherent and potential
hazards of the proposed treatment, the alternatives to that
treatment, if any, and the likely effect if the patient remained
C untreated. This stringent standard of disclosure was
subjected to only two exceptions : (i) where there was a
genuine emergency, e.g. the patient was unconscious;
and (ii) where the information would be harmful to the
patient. The stringent standards, as above, regarding
D disclosure laid down in Canterbury, as necessary to
secure an informed consent of the patient, was not
accepted in the English ccurts. In England, standard
applicable is popularly known as the Bolam Test as laid
down in Bolam v. Friern Hospital Management
E Committee.* (Paras - 21 & 22) [750-H; 751-A, B & DJ
F
*Bo/am v. Friern Hospital Management Committee -
[1957) 2 All.E.R. 118; Hunter v. Hanley (1955 SC 200) and
Sidaway v. Beth/em Royal Hospital Governors & Ors. [1985)
1 All ER 643 - referred to.
2.3 In India, Bolam test has broadly been accepted
as the general rule. The stark reality is that for a vast
majority in the country, the concepts of informed consent
or any form of consent, and choice in treatment, have no
G meaning or relevance. (Para - 25, 26) [755-G; 757-F]
H
Achutrao Haribhau Khodwa vs. State of Maharastra -
1996 (2) SCC 634, Vinitha Ashok vs. Lakshmi Hospital - 2001
(8) SCC 731 and Indian Medical Association vs. V P Shantha
- 1995 (6) sec 651 - relied on.
SAMIRA KOHLI v. DR. PRABHA MANCHANDA & ANR.
725
3.1 Of course, some doctors, both in private practice A
or in government service, look at patients not as persons
who should be relieved from pain and suffering by prompt
and proper treatment at an affordable cost, but as potential
income-providers/customers who can be exploited by
prolonged or radical diagnostic and treatment B
procedures. It is this minority who brihg a bad name to
the entire profession. (Para - 28) [758-F & G]
3.2 Every Doctor wants to be a specialist. The
proliferation of specialists and super specialists, have
exhausted many a patient both financially and physically, C
by having to move from doctor to doctor, in search of the
appropriate specialist who can identify the problem and
provide treatment. What used to be competent treatment
by one General Practitioner has now become multipronged treatment by several specialists. (Para - 29) [759- o
C & D]
4.1 Law stepping in to provide remedy for negligence
or deficiency in service by medical practitioners, has its
own twin adverse effects. More and more private doctors
and hospitals have, of necessity, started playing it safe, E
by subjecting or requiring the patients tp undergo various
costly diagnostic procedures and tests to avoid any
allegations of negligence, even though they might have
already identified the ailment with reference to the
symptoms and medical history with 90% certainly, by their F
knowledge and experience. (Para - 29) [759-E & F]
4.2 More and more doctors particularly surgeons in
private practice are forced to cover themselves by taking
out insurance, the cost of which is also ultimately passed
on to the patient, by way of a higher fee. As a G
consequence, it is now common that a comparatively
simple ailment, which earlier used to be treated at the cost
of a few rupees by consulting a single doctor, requires an
expense of several hundred or thousands on account of
four factors : (i) commercialization of medical treatment; H
726
SUPREME COURT REPORTS
[2008] 1 S.C.R.
A (ii) increase in specialists as contrasted from general
practitioners and the need for consulting more than one
doctor; (iii) varied diagnostic and treatment procedures
at high cost; and (iv) need for doctors to have insurance
cover. The obvious, may be na"ive, answer to unwarranted
B diagnostic procedures and treatment and prohibitive cost
of treatment, is an increase in the participation of health
care by the state and charitable institutions. An
enlightened and committed medical profession can also
provide a better alternative. (Para - 29) [759-F, G & H; 760C A&B]
4.3 A doctor cannot be held negligent either in regard
to diagnosis or treatment or in disclosing the risks
involved in a particular surgical procedure or treatment,
if the doctor has acted with normal care, in accordance
o with a recognised practices accepted as proper by a
responsible body of medical men skilled in that particular
field, even though there may be a body of opinion that
takes a contrary view. Where there are more than one
recognized school of established medical practice, it is
E not negligence for a doctor to follow any one of those
practices, in preference to the others. (Para - 31) [761-C
& D]
4.4 Principles relating to consent as enunciated are
summarized as follows: (i) A doctor has to seek and
F secure the consent of the patient before commencing a
'treatment'. The consent so obtained should be real and
valid; the consent should be voluntary; and the consent
should be on the basis of adequate information
concerning the nature of the treatment procedure, so that
G he knows what is consenting to. (ii) A balance should be
maintained 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
H diagnostic procedure cannot be considered as consent
-
-
SAMIRA KOHLI v. DR. PRABHA MANCHANDA & ANR.
727
i•
for therapeutic treatment. Consent given for a specific A
treatment procedure will not be valid for conducting some
other treatment procedure; (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 B
additional or further procedure that may become
"",
necessary during the course of surgery; and (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 c
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 D
the treatment. (Para - 32) [751-E, F & G; 752-C, D, E & H;
i
753-A, B, C, & DJ
4.5 The 'real consent' concept evolved in Bolam and
Sidaway have been preferred in preference to the
'reasonably prudent patient test' in Canterbury, having E
regard to the ground realities in medical and health-care
in India. But if medical practitioners and private hospitals
become more and more commercialized, and if there is a
corresponding increase in the awareness of patient's
~
rights among the public, inevitably, a day may come when
it may be shifted towards Canterbury. (Para - 33) [763-F,
F
G & HJ
Canterbury vs. Spenee, 1972 (464); Bo/am vs. Friern
· Hospital Management Committee (1957) 2 All.E.R. 118; Reibl
v. Hughes (1980) 114 DLR (3d.) 1 and Rogers v. Whittaker -
G
~ r1992 (109) ALR 625 and Sidaway v. Beth/em Royal Hospital
Governors & Ors. [1985J 1 All ER 643 - referred to.
5.1 In the present case, the Admission and Discharge
card maintained and produced by the respondent showed
that the appellant was admitted "for diagnostic and H
728
SUPREME COURT REPORTS
[2008] 1 S.C.R.
A operative laparoscopy on 10.5.1995". The CPD card dated
9.5.1995 does notrefer to endometriosis, which is also
admitted by the respondent in her cross-examination. If
fact, the respondent also admitted that the confirmation
of diagnosis is possible only after laparoscopy test. (Para
B - 38) [768-B & CJ
'Gynaecology' (second edition) by Robert W Shah -
referred to.
5.2 Notice dated 5.6.1995 served by respondent to
C the appellant makes it clear that the appellant was not
admitted for conducting hysterectomy or bilateral
salpingo-oopherectomy, but only for diagnostic
purposes. However, a wrong statement of fact made in
the said notice. It states that on 10.5.1995 after conducting
a laparoscopic examination, the video-recording of the
D lesion was shown to appellant's mother, and the
respondent informed the appellant and her mother that
conservative surgery would be futile and removal of
uterus and more extensive surgery was.preferable having
regard to the more extensive lesion and destruction of
E the function of the tubes. But this statement cannot be
true. The extensive nature of lesion and destruction of
the functions obviously became evident only after
diagnostic laparoscopy. But after diagnostic laparoscopy
and the video recording of the Lesion, there was no
F occasion for respondent to inform anything to appellant.
When the laparoscopy and video recording was made,
the appellant was already unconscious. Before she
regained consciousness, AH-BSO Surgery was performed
removing her uterus and ovaries. Therefore, the appellant
G could not have been informed on 10.5.1995 that
conservative surgery would be futile and removal of
uterus and extensive surgery was preferable in view of
the extensive lesion and destruction of the function of the
tubes did not arise. (Para - 39) [768-F; 769-C, D, E, F & G]
H
5.3 The consent form shows that the appellant gave
SAMIRA KOHLI v. DR. PRABHA MANCHANPA & ANR.
729
iY . consent only for diagnostic operative laparoscopy, and A
laparotomy if needed. Laparotomy is a surgical procedure
to open up the abdomen or an abdominal operation. It
refers to the operation performed to examine the
abdominal organs and aid diagnosis. Many a time, after
the diagnosis is made and the problem is identified it may B
be fixed during the laparotomy itself. In other cases, a
subsequent surgery may be required. laparotomy can no
doubt be either a diagnostic or therapeutic. In the former,
more often referred to as the exploratory laparotomy, an
exercise is undertaken to identify the nature of the disease. C
In the latter, a therapeutic laparotomy is conducted after
the cause has been identified. When a specific operation
say hysterectomy or salpingo-oopherectomy is planned,
laparotomy is merely the first step of the procedure,
followed by the actual specific operation. (Para - 40) [770D
A, 8, C, & DJ
i
5.4 On the other hand, hysterectomy and slapingooopherectomy follow laparotomy and are not themselves
referred to as laparotomy. Therefore, when the consent
form refers to diagnostic and operative laparoscopy and E
"laparotomy if needed", it refers to a consent for a definite
laparoscopy with a contingent laparotomy if needed. It
does not amount to consent for AH-BSO surgery removing
the uterus and ovaries/fallopian tubes. If the appellant had
consented for a AH-BSO then the consent form would
~ have given consent for "diagnostic and operative F
laparoscopy. Laparotomy, hysterectomy and bilateral
salpingo-oopherectomy, if needed." Para - 40) [770-E, F
&G]
5.5 On the documentary evidence and the
histopathology. report the appellant also raised an issue G
. ~ as to whether appellant was suffering from endometriosis
at all. She points out that ultra-sound did not disclose
endometriosis and the histopathology report does not·
confirm endometriosis. The respective experts examined
on either side have expressed divergent views as to H
730
SUPREME COURT REPORTS
[2008) 1 S. C.R.
A whether appellant was suffering from endometriosis. It
may not be necessary to give a definite finding on this
aspect, as the real question for consideration is whether
appellant gave consent for hysterectomy and bilateral
salpingo-oopherectomy and not whether appellant was
B suffering from endometriosis. (Para-41) [770-H; 771-A & BJ
5.6 In view of the evidence of expert witness, the
respondent's contention that 'Laparotomy' refers to and
includes hystectomy and
bilateral salpingooopherectomy cannot be accepted. The evidence of
C respondent's expert witness on this question is
evasive and clearly implies laparotomy is not the same
as hysterectomy. (Para - 42) [771-E & G]
5.7 In medical circles, it is well recognized that a catch
all clause giving the surgeon permission to do anything
D necessary does not give roving authority to remove
whatever he fancies may be for the good of the patient.
(Para - 43) [772-E & F]
5.8 When the oral and documentary evidence are
considered in the light of the legal position, it is clear that
E there was no consent by the appellant for conducting
hysterectomy and bilateral salpingo-oopherectomy. (Para
- 44) [772-G]
5.9 The appellant was neither a minor, nor mentally
F challenged, nor incapacitated. When a patient is a
competent adult, there is no question of someone else
~
giving consent on her behalf. There was no medical
emergency during surgery. The appellan.t was only
temporarily unconscious, undergoing only a diagnostic
procedure by way of laparoscopy. The respondent ought
G to have waited till the appellant regained consciousness,
discussed the result of the laparoscopic examination and
1 _
then taken her consent for the removal of her uterus and
ovaries. In the absence of an emergency and as the matter
was still at the stage of diagnosis, the question of taking
H her mother's consent for radical surgery did not arise. ·
SAMIRA KOHLI v. DR. PRABHA MANCHANDA & ANR.
731
Therefore, consent by the mother of the appellant cannot A
be treated as valid or real consent. Further a consent for
hysterectomy, is not a consent for bilateral salpingo -
ooperectomy. (Para - 45) [773-A, B, C & D]
5.10 If the term 'laparotomy' is to include
hysterectomy and salpingo-oopherectomy as contended B
by the respondent and there was a specific consent by
the appellant in the consent form signed by her on
10.5.1995, there was absolutely no need for the
respondent to send word through her assistant to get the
consent of appellant's mother for performing C
hysterectomy under general anesthesia. The very fact that
· such consent was sought from appellant's mother for
conducting hysterectomy is a clear indication that there
was no prior consent for hysterectomy by the appellant.
(Para - 46) [773-F & G]
D
6.1 National Consumer Commission, without any
legal basis, has concluded that "the informed choice has
to be left to the operating surgeon depending on his/her
discretion, after assessing the damage to the internal
organs, but subject to his/her exercising care and E
caution". It also erred in construing the words "such
medical treatment as is considered necessary for me
for ....... " in the consent form as including surgical
treatment by way of removal of uterus and ovaries. The
Commission has also observed : "whether the uterus F
should have been removed or not or some other surgical
procedure should have been followed are matters to be
left to the discretion of the performing surgeon, as long
as the surgeon does the work with adequate care and
caution". This proceeds on the erroneous assumption G
that where the surgeon has shown adequate care and
caution in performing the surgery, the consent of the
patient for removal of an organ is unnecessary. The
Commission failed to notice that the question was not
about the correctness of the decision to remove the uterus
and ovaries, but the failure to obtain the consent for H
732
SUPREME COURT REPORTS
(2008] 1 S.C.R.
A removal of the important organs. (Para - 48) [775-B, C, D
& E]
6.2 Suffice it to say that for a woman who has not
married and not yet reached menopause, the reproductive
organs are certainly important organs. There is also no
B dispute that removal of ovaries leads to abrupt
menopause
causing
hormonal
imbalance
and
consequential adverse effects. (Para - 48) [775-G & H]
6.3 The evidence demonstrates that on laparoscopic
C examination, respondent was satisfied that appellant was
suffering from endometriosis. The evidence also
demonstrates that there is more than one way of treating
endometriosis. While one view favours conservative
treatment with hysterectomy as a last resort, the other
favours hysterectomy as a complete and immediate cure.
D However, the correctness or appropriateness of the
treatment procedure, does not make the treatment legal,
in the absence of consent for the treatment. (Para - 52)
[778-C, D & F]
6.4 The evidence shows that the respondent having
E found evidence of endometriosis, proceeded on the basis
that removal of uterus and ovaries was beneficial to the
health of the appellant having regard to the age of the
appellant and condition of the appellant to provide a
permanent cure to her ailment, though not authorized to
F do so. On an overall consideration of the evidence, the
claim of appellant that the respondent falsely invented a
case is not accepted. (Para - 53) [779~A, B & C]
6.5 In the absence of consent by the appellant for
performing hysterectomy and salpingo-oopherectomy,
G performance of such surgery was an unauthorized
invasion and interference with appellant's body which
amounted to a tortuous act of assault and battery and
therefore a deficiency in service. But as noticed, there are
several mitigating circumstances. The respondent did it
H in the interest of the appellant. As the appellant was
'
SAMIRA KOHLI v. DR. PRABHA MANCHANDA & ANR.
733
already 44 years old and was having serious menstrual A
problems, the respondent thought that by surgical
removal of uterus and ovaries she was providing
permanent relief. It is also possible that the respondent
thought that the appellant may approve the additional
surgical procedure when she regained' consciousness B
•
and the consent by appellant's mother gave her authority .
This is a case of respondent acting in excess of consent
_..
but in good faith and for the benefit of the appellant.
Though the appellant has alleged that she had to undergo
Hormone Therapy, no other serious repercussions are c
made out as a result of the removal. The appellant was
already fast approaching the age of menopause and in
all probability required such Hormone Therapy. Even
assuming that AH-BSO surgery was not immediately
required, there was a reasonable certainty that she would
D
have ultimately required the said treatment for a complete
cure. On the facts and circumstances, interests of justice
would be served if the respondent is denied the entire fee
charged for the surgery and in addition, directed to pay
Rs.25,000 as compensation for the unauthorized AH-BSO
surgery to the appellant. If the respondent has already E
received the bill amount or any part thereof from the
appellant, he 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. (Paras - 54 & 55) [779D, E, F, G & H; 780-A, B, C & D]
F
CIVILAPPELLATE JURISDICTION: Civil Appeal No.1949
of 2004.
From the final Judgment and Order dated 19.11.2003 of
the National Consumer Disputes Redressal Commission, New G
_,
Delhi in O.P. No. 12of1996.
Prastiant Bhushan, Rukhsana Choudhary and Sumita
Hazarika for the Appellant.
Aman Lekhi, Meenakshi Lekhi, Rajan Chourasia, Jaspreet
S. Rai, Rakesh Kumar, Rohit Nagpal, Harish Pandey, Abhijat H
734
SUPREME COURT REPORTS
[2008] 1 S.C.R.
'4A Das, Rameshwar Prasad Goyal, Rajesh Kumar, Ajay Majithia
and Dr. Kailash Chand for the Respondents.
The Judgment of the Court was delivered by
RAVEENDRAN, J. This appeal is filed against the order
B dated 19.11.2003 passed by the National Consumer Disputes
Redressal Commission (for short 'Commission') rejecting the
' •
appellant's complaint (O.P. No.12/1996) under Section 21 of
•
the Consumer Protection Act, 1986 ('Act' for short).
"
Undisputed facts
c
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
D 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
E 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
...
F 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
G
and subjected to a laparoscopic examination. When the appellant
was still unconscious, Dr. Lata Rengen, who was assisting the
t-.
'
respondent, came out of the Operation Theatre and took the
consent of appellant's mother, who was waiting outside, for
performing hysterectomy under general anesthesia. Thereafter.
the Respondent performed a abdominal hystecrectomy (removal
H of uterus) and bilateral salpingo-oopherectomy (removal of
-
SAMIRA KOHLI v. DR. PRABHA MANCHANDA & ANR.
735
[RAVEENDRAN, J.]
y
ovaries and fallopian tubes). The appellant left the respondent's A
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 B
(respondent) and that against medical advice, he got the
•
appellant dis.charged 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 c
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 D
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 E
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 F
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 G
..- t
to health hazards .
-<
I
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 H
736
SUPREME COURT REPORTS
[2008] 1 S.C.R.
A 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
B (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
c voluntarily visited the respondent's 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
D 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.
The appellant's version :
E
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
""
F 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.
G 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
H blank printed forms without giving her an opportunity to read the
SAMIRA KOHLI v. DR. PRABHA MANCHANDA & ANR.
737
[RAVEENDRAN, J.]
contents. As only a diagnostic procedure by way of a 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
B
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 C
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 D
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 respondent's son casually informed her about
the removal of her reproductive organs. When she asked the E
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
F
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.
8. As she was admitted only for a diagnostic procedure,
namely a laparoscopy test, and as she had given consent only G
for a laparoscopy test and as her mother's consent for
..... *
conducting
hysterectomy
had
been
obtained
by
misrepresentation, there was no valid consent for the radical
surgery. The respondent also tried to cover up her unwarranted/
negligent act by falsely alleging that the appellant was suffering H
738
SUPREME COURT REPORTS
[2008] 1 S.C.R.
A from endometriosis. The respondent was guilty of two distinct
acts of negligence: the first was the failure to take her consent,
.,.
much less an informed consent, for the radical surgery involving
removal of reproductive organs; and the second was the failure
to exhaust conservative treatment before resorting to radical
B surgery, particularly when such drastic irreversible surgical
procedure was not warranted in her case. The respondent did
not inform the appellant, of the possible risks, side effects and
complications associated with such surgery, before undertaking
• ..
the surgical procedure. Such surgery without her consent was
~
c also in violation of medical Rules and ethics. Removal of her
reproductive organs also resulted in a severe physical
impairment, and necessitated prolonged further treatment. The
respondent was also not qualified to claim to be a specialist in
Obstetrics and Gynaecology and therefore could not have
D performed the surgery which only a qualified Gynaecologist
could perform.
The respondent's version
9. The appellant had an emergency consultation with the
E 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
F
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
G made a provisional diagnosis of endometriosis and informed
the appellant about the nature of the ailment, the anticipated
~ •
extent of severity, and tha modality of treatment. She further
.....
informed the appellant that a laparoscopic examination was
needed to confirm the diagnosis; that if on such examination,
H she found that the condition was manageable with conservative
SAMIRA KOHLI v. DR.