Consent not required for Immediate lifesaving surgery, Consumer forum dismisses Complaint by a Doctor

Mumbai: In a landmark decision concerning the need for consent for emergency surgeries, the State Consumer Redressal Forum has recently dismissed a complaint filed by a doctor alleging medical negligence on account of conducting emergency thoracotomy on his wife without consent.

The case goes back to the year 2008, when the complainant, wife of a qualified doctor, went to L Raheja Hospital and Trust after suffering from cancer of the right breast, was treated by modified radical mastectomy (MRM) in the Hospital by the cancer surgeon Dr.Phanase on 16th June 2008.

As part of further treatment, the patient received three sessions of chemotherapy on 5th, 26th July and 16th August 2008. For further remaining two chemotherapy sessions, it was decided to insert chemotherapy port. Thus for the said minor operation, the complainant got admitted in the said  Hospital on 11th September. The surgery was conducted by Dr Kamran Khan in the operation for hours.

It was informed that during the operation of chemotherapy port insertion, there was an injury to the right subclavian vein that was repaired immediately by the same surgeon by performing major operation, right-sided thoracotomy without giving any prior information to the complainant or her family.

Alleging that the hospital did not seek permission before the operation counts the deficiency in service and medical negligence, therefore a complaint was filed in this State Consumer Disputes Redressal Commission under section 17 of the Consumer Protection Act 1986 and claimed compensation of Rs 25 Lakh.

The doctor complainant claimed that he was clueless for 3 hours and 15 minutes about the happenings in the operation theatre, as no information was passed on to him once his wife was taken in operation theatre for the Port insertion surgery. It was after the operation that he was informed that any such operation was done.

The complainants further alleged that in the post-operative period, the management and the behaviour of the hospital staff were not good and the patient was shifted to paediatric ward (children’s ward). Other grievances during the post-operative period were that resident doctor changed the diet of the patient from solid to liquid, blood bags handed over to her family by biochemist technician instead of blood bank technician, and complainants had to pay the heavy hospital bill for a hospital stay of 6 days instead of one day.

The patient submitted that the chemotherapy port inserted got infected later on and had to be removed. She could not undertake further assignment due to the uninformed surgery performed by the doctor, there was a loss to her.

The Doctors and the Hospital denied any negligence allegation and provided their version of matter to the forum. The treating doctors claimed that it was not possible to inform and seek consent for the emergency surgery. To support their version of the matter, they submitted evidence and expert opinions and medical literature to the forum. Preliminary objections were raised and it was contended by the surgeon that Right thoracotomy was performed as an emergency since it was urgent to save the life of the patient.

The forum  in detail went through the documents on record – complaint memo, written statement, expert opinions, and written notes of arguments by parties, medical literature and the case laws submitted by both the parties.

The forum looked at the decision  of the Maharashtra Medical Council that had communicated the complainant that “after detailed deliberation among the members of Medical Council on 5th December 2015 regarding the complaint filed by you, the committee decided to exonerate the aforesaid RMP from the allegations made by you”.

"She was treated as per standard treatment procedure and guidelines and no negligence can be made out," the Medical Council of India  in an appeal upheld the MMC decision

The forum went through the consent form and observed that it is printed consent form in duly signed by both complainants and the surgeon as well, dated 11th September 2008.

" Point no.4 of the consent is as follows; "I also give my consent to such further or alternative operation measures as may be found to be necessary and to the administration of any anaesthetic for any of the purposes and other treatment as is necessary and performance of any Diagnostic examination, biopsy and transfusion". Considering this point in the consent form, we are of the opinion that there was consent for alternative operation measures as may be found to be necessary"

Forum further went through number of the expert opinions on the matter,

1. The first opinion of Dr Rajesh Mistry, Cancer surgeon and Director of department of Oncology and Centre for Cancer in Kokilaben Dhirubhai Ambani hospital, Mumbai mentioned that Dr. Kamran Khan followed the accepted principles of Port insertion and subclavian vein rupture is one of the known complication causing haemothorax. He opined, "As can be observed buy the case records in the case under discussion the patient developed acute drop in blood pressure soon after the procedure. In my opinion if the surgeon and anaesthetist were unable to normalise blood pressure with conservative methods( IV fluid) doing an emergency thoracotomy for controlling the bleeding was indicated as a live saving measure".


2. The second expert Dr Jigeeshu V. Divatia, Professor and Head of Department of Anesthesiology, Critical care and Pain at Tata Memorial Centre, Mumbai provided an expert opinion. He stated that it was due to monitoring of the patient during chemotherapy port insertion, rapid diagnosis of subclavian vein injury that resulted into haemothorax was possible.

Based on the opinion of experts, the forum stated that

"We think that the patient was properly managed as per the protocol of recognition and management of the known complication of chemo port insertion."

The forum noted that as the matter of respect toward the colleague in the medical profession, the charges for the second Surgery-Thoracotomy amounting to Rs.19,722 was waved off by Dr Kamran, which is an appreciating gesture.

The Forum further dismissed the case and stated that

"We have discussed about the qualification and competency of the surgeon, priority is always for saving life of the patient rather than informed consent and that there is no deficiency in service or medical negligence on the part of opposite parties. Hence the complainants are not entitled to compensation."