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developing cancer. As the complainant was already on the wrong side of
40 years which is a peri-menopausal age and as the appellant had
menorrhagia which prevented her from ovulating regularly and giving her
regular cycle necessary for pregnancy and as endometriosis prevented
fertilization and also produced reaction in the pelvis which increased the
lymphocytes and macrophages which destroyed the ova and sperm, there
was no chance of appellant conceiving, even if the surgery had not been
performed. The removal of her uterus and ovaries was proper and
necessary and there was no negligence on the part of the respondent in
performing the surgery. A Doctor who has acted in accordance with a
practice accepted as proper by medical fraternity cannot be said to have
acted negligently. In the realm of diagnosis and treatment there is ample
scope for genuine differences of opinion and no Doctor can be said to
have acted negligently merely because his or her opinion differs from that
of other Doctors or because he or she has displayed lesser skill or
knowledge when compared to others. There was thus no negligence on
her part.
Questions for consideration :
13. On the contentions raised, the following questions arise for our
consideration :
(i) Whether informed consent of a patient is necessary for surgical
procedure involving removal of reproductive organs? If so what is
the nature of such consent ?
(ii) When a patient consults a medical practitioner, whether consent
given for diagnostic surgery, can be construed as consent for
performing additional or further surgical procedure -- either as
conservative treatment or as radical treatment -- without the
specific consent for such additional or further surgery.
(iii) Whether there was consent by the appellant, for the abdominal
hysterectomy and Bilateral Salpingo-oopherectomy (for short AH-
BSO) performed by the respondent?
(iv) Whether the respondent had falsely invented a case that appellant
was suffering from endometriosis to explain the unauthorized and
unwarranted removal of uterus and ovaries, and whether such
radical surgery was either to cover-up negligence in conducting
diagnostic laparoscopy or to claim a higher fee ?
(v) Even if appellant was suffering from endometriosis, the respondent
ought to have resorted to conservative treatment/surgery instead of
performing radical surgery ?
(vi) Whether the Respondent is guilty of the tortious act of
negligence/battery amounting to deficiency in service, and
consequently liable to pay damages to the appellant.
Re : Question No.(i) and (ii)
14. Consent in the context of a doctor-patient relationship, means the
grant of permission by the patient for an act to be carried out by the
doctor, such as a diagnostic, surgical or therapeutic procedure. Consent
can be implied in some circumstances from the action of the patient. For
example, when a patient enters a Dentist’s clinic and sits in the Dental
chair, his consent is implied for examination, diagnosis and consultation.
Except where consent can be clearly and obviously implied, there should
be express consent. There is, however, a significant difference in the
nature of express consent of the patient, known as ’real consent’ in UK
and as ’informed consent’ in America. In UK, the elements of consent are
defined with reference to the patient and a consent is considered to be
valid and ’real’ when (i) the patient gives it voluntarily without any
coercion; (ii) the patient has the capacity and competence to give consent;
developing cancer. As the complainant was already on the wrong side of
40 years which is a peri-menopausal age and as the appellant had
menorrhagia which prevented her from ovulating regularly and giving her
regular cycle necessary for pregnancy and as endometriosis prevented
fertilization and also produced reaction in the pelvis which increased the
lymphocytes and macrophages which destroyed the ova and sperm, there
was no chance of appellant conceiving, even if the surgery had not been
performed. The removal of her uterus and ovaries was proper and
necessary and there was no negligence on the part of the respondent in
performing the surgery. A Doctor who has acted in accordance with a
practice accepted as proper by medical fraternity cannot be said to have
acted negligently. In the realm of diagnosis and treatment there is ample
scope for genuine differences of opinion and no Doctor can be said to
have acted negligently merely because his or her opinion differs from that
of other Doctors or because he or she has displayed lesser skill or
knowledge when compared to others. There was thus no negligence on
her part.
Questions for consideration :
13. On the contentions raised, the following questions arise for our
consideration :
(i) Whether informed consent of a patient is necessary for surgical
procedure involving removal of reproductive organs? If so what is
the nature of such consent ?
(ii) When a patient consults a medical practitioner, whether consent
given for diagnostic surgery, can be construed as consent for
performing additional or further surgical procedure -- either as
conservative treatment or as radical treatment -- without the
specific consent for such additional or further surgery.
(iii) Whether there was consent by the appellant, for the abdominal
hysterectomy and Bilateral Salpingo-oopherectomy (for short AH-
BSO) performed by the respondent?
(iv) Whether the respondent had falsely invented a case that appellant
was suffering from endometriosis to explain the unauthorized and
unwarranted removal of uterus and ovaries, and whether such
radical surgery was either to cover-up negligence in conducting
diagnostic laparoscopy or to claim a higher fee ?
(v) Even if appellant was suffering from endometriosis, the respondent
ought to have resorted to conservative treatment/surgery instead of
performing radical surgery ?
(vi) Whether the Respondent is guilty of the tortious act of
negligence/battery amounting to deficiency in service, and
consequently liable to pay damages to the appellant.
Re : Question No.(i) and (ii)
14. Consent in the context of a doctor-patient relationship, means the
grant of permission by the patient for an act to be carried out by the
doctor, such as a diagnostic, surgical or therapeutic procedure. Consent
can be implied in some circumstances from the action of the patient. For
example, when a patient enters a Dentist’s clinic and sits in the Dental
chair, his consent is implied for examination, diagnosis and consultation.
Except where consent can be clearly and obviously implied, there should
be express consent. There is, however, a significant difference in the
nature of express consent of the patient, known as ’real consent’ in UK
and as ’informed consent’ in America. In UK, the elements of consent are
defined with reference to the patient and a consent is considered to be
valid and ’real’ when (i) the patient gives it voluntarily without any
coercion; (ii) the patient has the capacity and competence to give consent;
