Through a recent judgement, Hon. Apex 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.
Facts in Short :
1. The facts relate back to year 1996. The Respondent – Complainant-patient Mrs. Dhanwantari Kumari , a resident of Kolkata had abdominal pain in the month of June-1996. As she did not get any relief from local Doctor, she consulted one Dr Lakshmi Basu who in turn advised the patient to undergo certain tests like X-Ray, PA test, USG, etc. and after the reports, Dr Basu opined that the patient had 2 calculi in her gall bladder which could be removed only by Laparoscopic surgery and asked the patient to approach a good Surgeon.
2. The Appellant herein after going through the reports and after examining the Patient, advised her for laparoscopic surgery. Accordingly, the patient got admitted to Life Line Diagnostic Center and Nursing Home, the Respondent No.2 in the present case.
3. Accordingly on 08/08/1996, firstly laparoscopic surgery was done, but thereafter conventional open surgery also had to be performed for removal of her gallbladder. Within 10 days, the patient was discharged.
4. However, in December 1997 or thereabouts, the Patient filed a consumer complaint against Dr. Jhunjhunwala and the said Hospital mainly on the threefold ground that,
a) She only gave consent for Laparoscopic Surgery and she never gave consent for the open surgery. Moreover due to said Open surgery, which was not performed with proper care, she suffered great mental and physical pain and agony as the said open surgery resulted in putting several stitches and scars on her body,
b) Secondly, even the surgery performed was not successful inasmuch as she thereafter suffered for several days with various ailments, such as dysentery, loss of appetite, reduction of weight, jaundice etc.,
c)Thirdly, in June 1997, she was, therefore, required to undergo another surgery in Sir Gangaram Hospital, New Delhi for removal of stones which had slipped in CBD.
Defence of the Doctor :
1. The Appellant Doctor refuted all the allegations. It was submitted on his behalf that proper consent of the patient for performing the laparoscopic cholecystectomy was duly obtained before performing the surgery.
2. However during the laparoscopic surgery , he noticed swelling, inflammation and adhesion on her Gall Bladder and, therefore, he came out of Operation Theater and explained this to her Husband and explained it to him that in such situation instead of Laparoscopic surgery conventional opens surgery is the only option to remove her gallbladder and to which the husband gave his consent and accordingly the surgery was performed.
3. The doctor denied all the charges of negligence and he took all precautions to the best of his ability and capacity.
4. The State Commission dismissed the complaint on merit and therefore the Complainant approached the National Commission. The National Commission allowed the complainant’s appeal and held the Doctor Negligence and saddled compensation of Rs.2 lakhs on him and hence the Doctor approached Hon. Supreme Court.
1. Their Lordships allowed the Appeal in favour of the Appellant Doctor after perusing the documents and evidence on record and referred to various judgments on this point.
2. Hon. The court, at the outset discussed the law of how to decide the negligence of Doctors and placed its reliance on the celebrated judgment of UK Court in the year 1957, in the case of Bolam V/s. Friern Hospital. In the said case it was held that
“Where you get a situation which involves the use of some special skill or competence, then the test as to whether there has been negligence or not is not the test of the man on the top of a Clapham omnibus, because he has not got this special skill. The test is the standard of the ordinary skilled man exercising and professing to have that special skill. A man need not possess the highest expert skill ….. It is well established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art”
3. It also relied on the famous 3 judges bench Supreme Court Judgment in the case of Jacob Mathew V/s. State of Punjab (2005) 6 SCC 1. In that case, it was held that a Physician would not assure
the patient of full recovery in everycase. A surgeon cannot and does not guarantee that the result of surgery would invariably be beneficial, much less to surgery would invariably be beneficial, much less to 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 14 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.
4. It also relied on another landmark judgment in the case of Hucks V/s. Cole wherein it was observed that “a medical practitioner was not be held liable simply because things went wrong from mischance or misadventure or through an error of judgment in choosing one reasonable course of treatment in preference of another. A medical practitioner would be held liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field.”
5. These principles were applied to the case in the hand. The Court discussed the degrees and experience of the Doctor Jhunjhunwala. He was practising since 1969 in Kolkata and obtained FRCS from London in the year 1976. Thus he was a well-qualified Surgeon and having requisite experience in the filed, the Court further Observed.
6. The Court did not accept the allegation of the patient that she gave consent only for Laparoscopic surgery and not for the Open Surgery. The Court relied upon the terms of consent form itself, which gave every authority to the Appellant Doctor to perform open conventional surgery on the same organ if there would have been some abnormalities and thus the Court held that there was no need for having separate consent as alleged by the Complainant-patient.
7. The Court agreed to the evidence on record which proved that the Doctor chose or shifted to Open surgery as he noticed that there was some inflammation, adhesion and swelling on Gall Bladder and therefore he came out of operation theatre and informed respondent’s husband and explained him everything and only after her husband gave consent, the conventional surgery was performed. Thus it was not the case of an unauthorized act of the Doctor. Moreover, it was the clear case of emergency and it was done to save the life of the patient and there was no time for Doctors to wait till the patient would gain consciousness to take decision on her own, as envisaged in the landmark judgment on Informed Consent in the case of Samira Kohli V/s. Prabha Manchanda (2008) 2 SCC 1. Most importantly, their Lordships called it as the most natural conduct and behavior of any prudent doctor.
The Hon. Court further observed as it was surprising that the patient never raised the issue of Consent to the Doctor of the Hospital, nor did her husband raise the issue after the operation.
8. The Court categorically further observed that even the National Commission has held that the Patient has failed to prove any kind of negligence that can be attributed to the Doctor nor any medical expert opinion has been placed on record in support of her claim. The Court also relied upon the observations of National Commission that the Complainant failed to prove with the help of medical evidence that the stones which were removed in Sir Gangaram Hospital were the same which the Appellant failed to remove.
9. Regarding allegations of subsequent ailments of the patient as a result of the operation, their Lordships held that 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 the field to prove the latter is required. Simply proving the former is not sufficient. The patient failed to prove the same.
A case of great importance for doctors and perhaps they may call it as an oasis. Their Lordships have in detailed discussed various aspects of the case. The Message is loud and clear. The Doctor is the master of his/her decision based on his/her knowledge, experience and skill. Few things which others can learn from this case is that PROPER CONSENT WAS TAKEN and PROPER DOCUMENTATION. These two factors have no alternative.
Thanks and Regards,
Adv. Rohit Erande.
Case details :
Dr. S.K. Jhunjhunwala V/s. Mrs. Dhanwanti Kumar & Anr.
Civil Appeal No.3971/2011., decided on 01/10/2018.
Hon. Abhay Manohar Sapre & Hon. Vineet Saran, JJ.
Judgement Link :