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On Monday, the Supreme Court set aside a National Consumer Disputes Redressal Commission (NCDRC) order against a surgeon that found him ‘negligent’ for performing a conventional surgery and removed gall bladder without obtaining the consent of the patient.
The patient had approached the consumer forum complaining that she gave her consent for performing a laparoscopy surgery on her gall bladder, but the surgeon performed a general surgery on her gall bladder which resulted in several stitches and scars on her body. Explaining his version before the consumer forum, the surgeon said that after starting with the laparoscopic surgery, he noticed swelling, adhesion and inflammation on her gall bladder and he came out of the operation theater to disclose the said facts to her husband. It was only after discussing the situation with the husband and after obtaining the consent of the husband, the surgery was performed.
Though the complaint was dismissed by the state forum, the national commission awarded a compensation of Rs.2 lakhs to be paid on, account of negligence,by the surgeon to the patient. The surgeon then approached the SC challenging this order.
Referring to the consent form signed by the patient, the bench, comprising of Justice Vineet Saran and Justice Abhay Manohar Sapre (in case of S.K. Jhunjhunwala vs. Dhanwanti Kumar), observed that the performing doctor is empowered to perform such an additional operation or procedure, including the administration of a blood transfusion or blood plasma, as they may consider necessary or proper in the event of any emergency or if any anticipated condition is discovered during the course ofoperation. Thus, it was held that a different form will not be needed to do the conventional surgery in the light of authorization contained in clause 4 itself as the substitute operation was of a same organ with a difference of another well-known method.
The bench also took into account the consent given by the husband to perform the conventional operation. The commission had relied on apex court judgment in Samira Kohli vs. Dr. PrabhaManchandand held that there was no consent to perform conventional surgery. But the court quoted the ‘exception’ in the same judgment which said that the only exception is cases where the additional procedure though unauthorized, is necessary in order to save the life or for preserving the health of the patient and it would be deemed unreasonable to delay such unauthorized procedure until patient regains consciousness and is able to take a decision.
Setting aside the NCDRC order, the bench said that it is a clear case of grant of consent to the surgeon to perform the substituted operation of gallbladder and that it was not an unauthorized surgery and he could have legally performed iton the basis of original consent as well as on the basis of the further consent given by her husband.
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