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ovaries or in cases of malignancy or the cancer of the ovaries.
52. The evidence therefore demonstrates that on laparoscopic
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. The age of the patient,
the stage of endometriosis among others will be determining factors for
choosing the method of treatment. The very suggestion made by
appellant’s counsel to the expert witness Dr. Sudha Salhan that worldwide
studies show that most hysterectomies are conducted unnecessarily by
Gynecologists demonstrates that it is considered as a favoured treatment
procedure among medical fraternity, offering a permanent cure. Therefore
respondent cannot be held to be negligent, merely because she chose to
perform radical surgery in preference to conservative treatment. This
finding however has no bearing on the issue of consent which has been
held against the respondent. The correctness or appropriateness of the
treatment procedure, does not make the treatment legal, in the absence of
consent for the treatment.
53. It is true that the appellant has disputed the respondent’s finding
that she was suffering from endometriosis. The histopathology report also
does not diagnose any endometriosis. The expert witness examined on
behalf of the appellant has also stated that there was no evidence that the
appellant was suffering from endometriosis. On the other hand the
respondent has relied on some observations of the histopathology report
and on her own observations which has been recorded in the case
summary to conclude that the appellant was suffering from
endometriosis. The evidence shows that the respondent having 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 do so. On a
overall consideration of the evidence, we are not prepared to accept the
claim of appellant that the respondent falsely invented a case that the
appellant was suffering from endometriosis to cover up some negligence
on her part in conducting the diagnostic/operative laparoscopy or to
explain the unauthorized and unwarranted removal of uterus and ovaries.
Re : Question No.(vi) :
54. In view of our finding that there was no consent by the appellant
for performing hysterectomy and salpingo-oopherectomy, performance of
such surgery was an unauthorized invasion and interference with
appellant’s body which amounted to a tortious act of assault and battery
and therefore a deficiency in service. But as noticed above, there are
several mitigating circumstances. The respondent did it in the interest of
the appellant. As the appellant was already 44 years old and was having
serious menstrual 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 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 is 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 have ultimately required
the said treatment for a complete cure. On the facts and circumstances,
we consider that 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
ovaries or in cases of malignancy or the cancer of the ovaries.
52. The evidence therefore demonstrates that on laparoscopic
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. The age of the patient,
the stage of endometriosis among others will be determining factors for
choosing the method of treatment. The very suggestion made by
appellant’s counsel to the expert witness Dr. Sudha Salhan that worldwide
studies show that most hysterectomies are conducted unnecessarily by
Gynecologists demonstrates that it is considered as a favoured treatment
procedure among medical fraternity, offering a permanent cure. Therefore
respondent cannot be held to be negligent, merely because she chose to
perform radical surgery in preference to conservative treatment. This
finding however has no bearing on the issue of consent which has been
held against the respondent. The correctness or appropriateness of the
treatment procedure, does not make the treatment legal, in the absence of
consent for the treatment.
53. It is true that the appellant has disputed the respondent’s finding
that she was suffering from endometriosis. The histopathology report also
does not diagnose any endometriosis. The expert witness examined on
behalf of the appellant has also stated that there was no evidence that the
appellant was suffering from endometriosis. On the other hand the
respondent has relied on some observations of the histopathology report
and on her own observations which has been recorded in the case
summary to conclude that the appellant was suffering from
endometriosis. The evidence shows that the respondent having 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 do so. On a
overall consideration of the evidence, we are not prepared to accept the
claim of appellant that the respondent falsely invented a case that the
appellant was suffering from endometriosis to cover up some negligence
on her part in conducting the diagnostic/operative laparoscopy or to
explain the unauthorized and unwarranted removal of uterus and ovaries.
Re : Question No.(vi) :
54. In view of our finding that there was no consent by the appellant
for performing hysterectomy and salpingo-oopherectomy, performance of
such surgery was an unauthorized invasion and interference with
appellant’s body which amounted to a tortious act of assault and battery
and therefore a deficiency in service. But as noticed above, there are
several mitigating circumstances. The respondent did it in the interest of
the appellant. As the appellant was already 44 years old and was having
serious menstrual 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 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 is 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 have ultimately required
the said treatment for a complete cure. On the facts and circumstances,
we consider that 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
