Through a recent verdict, the Supreme Court dismissed the charges of negligence against a Senior FRCS Surgeon as he chose conventional surgery over consented laparoscopic surgery to remove Gall Bladder. The case clearly shows the importance of proper informed consent and proper documentation.
The Supreme Court case relates to a woman from Kolkata who was admitted to hospital on August 8, 1996, with abdominal pain. She was informed that her Gall Bladder had two calculi in its lumen and the same could be cured only by operation and was referred to the appellant doctor. When she was undergoing laparoscopic gallbladder surgery the next day, the doctor realised that she required a conventional operation. The doctor came out of the operation theatre and explained the same to the patient’s husband.
In December 1997, the patient petitioned the State Consumer Disputes Redressal Commission, saying that she had given consent only for laparoscopic surgery but the doctor conducted a conventional one, leaving scars on her body, which caused her mental agony. She claimed to have developed kidney stones due to the doctor’s negligence. The case was dismissed by the state commission in 2004, after which she appealed to the National Consumer Disputes Redressal Commission, which ordered the doctor to pay Rs 2 lakh as compensation to the patient for medical negligence caused during the surgery. The doctor approached SC, which ruled on Monday that he can’t be held guilty of medical negligence.
Defence of doctor:
- It was stated that consent for performing the laparoscopic cholecystectomy was duly obtained before performing the surgery
- The doctor stated that after starting laparoscopic surgery, he noticed swelling, inflammation and adhesion on her Gall Bladder and, therefore, he came out of the Operation Theater and disclosed these facts to patient's 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. The husband of patient agreed for the option suggested by the doctor and the doctor accordingly performed conventional surgery
- "...A Physician would not assure the patient of full recovery in every case. A surgeon cannot and does not guarantee that the result of surgery would invariably be beneficial, much less to the extent of 100 % for the person operated on. The only assurance which such a professional can give or can be understood to have given by implication is that he is possessed of the requisite skill in that branch of profession which he is practicing and while undertaking the performance of the task entrusted to him he would be exercising his skill with reasonable competence. This is what the entire person approaching the professional can expect. Judged by this standard, a professional may be held liable for negligence on one of 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 not possess..."
- "...In our opinion, there has to be a direct nexus with these two factors to sue a doctor for his negligence. Suffering of ailment by the patient after surgery is one thing. It may be due to myriad reasons known in medical jurisprudence. Whereas suffering of any such ailment as a result of improper performance of the surgery and that too with the degree of negligence on the part of Doctor is another thing. To prove the case of negligence of a doctor, the medical evidence of experts in field to prove the latter is required. Simply proving the former is not sufficient..."
- The appellant is a qualified senior doctor with an experience in the field and had also possessed the requisite knowledge and skill in the subject to perform the surgery of Gall Bladder.
- 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
- In the light of what we have held above, we cannot concur with the reasoning and the conclusion arrived at by the National Commission. As a consequence, the appeal succeeds and is accordingly allowed. The impugned order is set aside and that of the order passed by the State Commission is restored
Read the Supreme Court judgement in the PDF attached below.