SAMIRA KOHLI v. DR. PRABHA MANCHANDA & ANR.

p. 768 Copy page pinpoint

A any emergency or life threatening situation developing or being discovered when laparoscopic test was conducted, but according to an agreed plan, consented by the appellant and her mother on 9.5.1995 itself, reiterated in writing on 10.5.1995. Therefore the defence of respondent is one based on specific B consent. Let us therefore examine whether there was consent.

38Copy pinpoint38. The Admission and Discharge card maintained and produced by the respondent showed that the appellant was admitted "for diagnostic and (?)operative laparoscopy on A 10.5.1995". The OPD card dated 9.5.1995 does not refer to· c endometriosis, which is also admitted by the respondent in her cross-examination. lffact, the respondent also admitted that the confirmation of diagnosis is possible only after laparoscopy test: "On clinical and ultrasound examination a diagnosis can D be made to some extent. But precise diagnosis will have to be on laparoscopy." The consent form dated 10.5.1995 signed by the appellant states that appellant has been informed that the treatment to be undertaken is "diagnostic and operative laparoscopy. E Laparotomy may be needed." The case summary dictated by respondent and written by Dr. Lata Rangan also clearly says "admitted for Hysteroscopy, diagnostic laparoscopy and operative laparoscopy on 10.5.1995." (Note : Hysteroscopy is inspection of uterus by special endoscope and laproscopy is F abdominal exploration by special endoscope.)

39Copy pinpoint39. In this context, we may also refer to a notice dated 5.6.1995 issued by respondent to the appellant through counsel, demanding payment of Rs.39,325/- towards the bill amount. Paras 1, 3, and 4 are relevant which are extracted below: G "1. You were admitted to our clinic Dr. Manchanda, No.7, Ring Road, Lajpat Nagar, New Delhi for diagnostic and ..,. ' operative Japaroscopy and Endometrial biopsy on 10.5.1995." ........... H "3. The findings of laparoscopy were : a very extensive

SAMIRA KOHLI v. DR. PRABHA MANCHANDA & ANR. 769 [RAVEENDRAN, J.]

lesion of the endometriosis with pools of blood, extensive A adherence involving the tubes of the uterus and ovaries, a chocolate cyst in the right ovary and areas of endometriosis on the surface of the left ovary but no cyst." "4. The findings were duly conveyed to Ms. Somi Kohli B who was also shown a video recording of the lesion. You and Mrs. Somi Kohli were informed that conservative surgery would be futile and removal of the uterus and more extensive surgery, considering your age and extensive lesion and destruction of the functions of the tubes, was preferable." c This also makes it clear that the appellant was not admitted for conducting hysterectomy or bilateral salpingo-oopherectomy, but only for diagnostic purposes. We may, however, refer to a wrong statement of fact made in the said notice. It states that on 0 10.5.1995 after conducting a laparoscopic examination, the video-recording of the lesion was shown to appellant's mother, and the respondent informed the appellant and her mother that conservative surgery would be futile and removal of uterus and more extensive surgery was preferable having regard to the more extensive lesion and destruction of the function of the tubes. E But this statement cannot be true. The extensive nature of lesion and destruction of the functions obviously became evident only after diagnostic laparoscopy. But after diagnostic laparoscopy and the video recording of the Lesion, there was no occasion for respondent to inform anything to appellant. When the laparoscopy and video recording was made, the appellant was already unconscious. Before she regained consciousness, AH- BSO was performed removing her uterus and ovaries. Therefore, the appellant could not have been informed on 10.5.1995 that conservative surgery would be futile and removal of uterus and extensive surgery was preferable in view of the extensive lesion and destruction of the function of the tubes did not arise.

40Copy pinpoint40. The admission card makes it clear that the appellant H

p. 770 Copy page pinpoint

A was admitted only for diagnostic and operative laparoscopy. It does not refer to laparotomy. The consent form shows that the appellant gave consent only for diagnostic operative laparoscopy, and laparotomy if needed. Laparotomy is a surgical procedure to open up the abdomen or an abdominal s operation. It refers to the operation performed to examine the abdominal organs and aid diagnosis. Many a time, after the diagnosis is made and the problem is identified it may be fixed A during the laparotomy itself. In other cases, a subsequent surgery may be required. Laparotomy can no doubt be either a c diagnostic or therapeutic. In the former, more often referred to as the exploratory laparotomy, an exercise is undertaken to identify the nature of the disease. In the latter, a therapeutic laparatomy is conducted after the cause has been identified. When a specific operation say hysterectomy or salpingo- D oopherectomy is planned, laparotomy is merely the first step of the procedure, followed by the actual specific operation, namely +- hysterectomy or salpingo-oopherectomy. Depending upon the incision placement, laparotomy gives access to any abdominal organ or space and is the first step in any major diagnostic or therapeutic surgical procedure involving a) the lower port of the E digestive tract, b) liver, pancreas and spine, c) bladder, d) female reproductive organs and e) retroperitonium. On the other hand, hysterectomy and slapingo-oopherectomy follow laparotomy and are not themselves referred to as laparotomy. Therefore, when the consent form refers to diagnostic and operative + F laparoscopy and "laparotomy if needed", it refers to a consent for a definite laparoscopy with a contingent laparotomy if needed. It does not amount to consent for OH-BSO surgery removing the uterus and ovaries/fallopian tubes. If the appellant had consented for a OH-BSO then the consent form would have G given consent for "diagnostic and operative laparoscopy. Laparotomy, hysterectomy and bilateral salpingo-oopherectomy, if needed."

41Copy pinpoint41. On the documentary evidence and the histopathology report the appellant also raised an issue as to whether appellant H

SAMIRA KOHLI v. DR. PRABHA MANCHANDA & ANR. 771 [RAVEENDRAN, J.] y was ~uffering from endometriosis at all. She points out that ultra- A sound did not disclose endometriosis and the histopathology report does not confirm endometriosis. The respective experts examined on either side have expressed divergent views as to whether appellant was suffering from endometriosis. It may not be necessary to give a definite finding on this aspect, as the B real question for consideration is whether appellant gave •;. consent for hysterectomy and bilateral salpingo-oopherectomy and not whether appellant was suffering from endometriosis. Similarly there is divergence of expert opinion as to whether removal of uterus and ovaries was the standard or recognized c remedy even if there was endometriosis and whether conseNative treatment was an alternative. Here again it is not necessary to record any finding as to which is the proper remedy. It is suffiC:ient to note that there are different modes of treatment favoured by different schools of thought among Gynaecologists. D ---+ 42. Respondent contended that the term 'laparotomy' is used in the consent form (by her assistant Dr. Lata Rangan) is equal to or same as hysterectomy. The respondent's contention that 'Laparotomy' refers to and includes hystectomy and bilateral salpingo-oopherectomy cannot be accepted. The following clear evidence of appellant's expert witness - Dr. Puneet Bedi (CW 1) is not challenged in cross examination : "Laparotomy is opening up of the abdomen which is quite different from hysterectomy. Hysterectomy is a procedure which involves surgical removal of uterus. The two procedures are totally different and consent for each procedure has to be obtained separately." On the other hand, the evidence of respondent's expert witness (Dr. Sudha Salhan) on this question is evasive and · G t clearly implies laparotomy is not the same as hysterectomy. The relevant portion of her evidence is extracted below : "Q. As per which medical authority;l~parotomy is equal to hysterectomy? H

p. 772 Copy page pinpoint

A Ans. Consent for laparotomy permits undertaking for such surgical procedure necessary to treat medical conditions including hysterectomy. Q. I put it to you that th.e medical practice is to take specific consent for hysterectomy. B Ans. Whenever we do hysterectomy only, specific consent is obtained."

43Copy pinpoint43. Medical texts and authorities clearly spell out that Laparotomy is at best the initial step that is necessary for performing hysterectomy or salpingo-oopherectomy. Laparotomy by itself is not hysterectomy or salpingo- oopherectomy. Nor does 'hysterectomy' include salpingo- oopherectomy, in the case of woman who has not attained menopause. Laparotomy does not refer to surgical removal of any vital or reproductive organs. Laparotomy is usually exploratory and once the internal organs are exposed and examined and the disease or ailment is diagnosed, the problem may be addressed and fixed during the course of such laparotomy (as for example, removal of cysts and fulguration of endometric area as stated by respondent herself as a conservative form of treatment). But Laparotomy is never understood as referring to removal of any organ. In medical circles, it is well recognized that a catch all clause giving the surgeon permission to do anything necessary does not give roving authority to remove whatever he fancies may be for the good of the patient. For example, a surgeon cannot construe a consent to termination of pregnancy as a consent to sterilize the patient.

44Copy pinpoint44. When the oral and documentary evidence is considered in the light of the legal position discussed above while answering questions (i) and (ii), it is clear that there was no consent by the appellant for conducting hysterectomy and bilateral salpingo-oopherectomy.

45Copy pinpoint45. The Respondent next contended that the consent given H

SAMIRA KOHLI v. DR. PRABHA MANCHANDA & ANR. 773 [RAVEENDRAN, J.] 'r by the appellant's mother for performing hysterectomy should be considered as valid consent for performing hysterectomy and salpingo-oopherectomy. The appellant was neither a minor, nor mentally challenged, nor incapacitated. When a patient is a competent adult, there is no question of someone else giving consent on her behalf. There was no medical emergency during surgery. The appellant was only temporarily unconscious, •A undergoing only a diagnostic procedure by way of laparoscopy. The respondent ought to have waited till the appellant regained consciousness, discussed the result of the laparoscopic examination and then taken her consent for the removal of her c uterus and ovaries. In the absence of an emergency and as the matter was still at the stage of diagnosis, the question of taking her mother's consent for radical surgery did not arise. Therefore, such consent by mother cannot be treated as valid or real consent. Further a consent for hysterectomy, is not a consent for bilateral salpingo - ooperectomy.

46Copy pinpoint46. There is another facet of the consent given by the appellant's mother which requires to be noticed. The respondent's specific case is that the appellant had agreed for the surgical removal of uterus and ovaries depending upon the extent of the lesion. It is also her specific case that the consent ' by signing the consent form on 10.5.1995 wherein the treatment is mentioned as "diagnostic and operative laparoscopy. Laparotomy may be needed." includes the AH-BSO surgery for J removal of uterus and ovaries. If the term 'laparotomy' is to include hysterectomy and salpingo-oopherectomy as contended by the respondent and there was a specific consent by the appellant in the consent form signed by her on 10.5.1995, there was absolutely no need for the respondent to send word through her assistant Dr. Lata Rangan to get the consent of appellant's G ' 't mother for performing hysterectomy under general anesthesia. The very fact that such consent was sought from appellant's mother for conducting hysterectomy is a clear indication that there was no prior consent for hysterectomy by the appellant.

47Copy pinpoint47. We may, therefore, summarize the factual position thus: H

p. 774 Copy page pinpoint

A (i) On 9.5.1995 there was no confirmed diagnosis of endometriosis. The OPD slip does not refer to a provisional diagnosis of endometriosis on the basis of personal examination. Though there is a detailed reference to the findings of ultrasound in the entry B relating to 9.5.1995 in the OPD slip, there is no reference to endometriosis which shows that ultrasound report did not show endometriosis. In fact, ..I._

ultra-sound may disclose fibroids, chocolate cyst or other abnormality which may indicate endometriosis, c but cannot by itself lead to a diagnosis of endometriosis. This is evident from the evidence of CW1, RW1 and RW2 and recognized text books. In fact respondent's expert Dr. Sudha Salhan admits in her cross examination that endometriosis can only be suspected but not diagnosed by ultrasound and it can be confirmed only by laparoscopy. Even according to respondent, endometriosis was confirmed only by laparoscopy. [Books on "Gynaecology' clearly state : "The best means to diagnose endometriosis is by direct visualization at laparoscopy or laparotomy, with histological , confirmation where uncertainty persists."] Therefore the claim of respondent that she had discussed in detail about endometriosis and the treatment on 9.5.1995 on the basis of her personal examination and ultra-sound report appears to be doubtful. (ii) The appellant was admitted only for diagnostic laparoscopy (and at best for limited surgical treatment that could be made by laproscopy). She was not admitted for hysterectomy or bilateral salpingo- G • oopherectomy. * (iii) There was no consent by appellant for hysterectomy or bilateral salpingo-oopherectomy. The words "Laparotomy may be needed" in the consent form H dated 10.5.1995 can only refer to therapeutic

SAMIRA KOHLI v. DR. PRABHA MANCHANDA & ANR. 775 [RAVEENDRAN, J.] r procedures which are conservative in nature (as for. A example removal of chocolate cyst and fulguration of endometric areas, as stated by respondent herself as a choice of treatment), and not radical surgery involving removal of important organs.

48Copy pinpoint48. We find that the Commission has, without any legal B • basis, concluded that "the informed choice has to be left to the .~. operating surgeon depending on his/her discretion, after assessing the damage to the internal organs, but subject to his/ her exercising care and caution". It also erred in construing the words "such medical treatment as is considered necessary for c me for. ...... " in the consent form as including surgical treatment by way of removal or uterus and ovaries. The Commission has also observed : "whether the uterus should have been removed or not or some other surgical procedure should have been _, followed are matters to be left to the discretion of the performing D surgeon, as long as the surgeon does the work with adequate care and caution". This proceeds on the erroneous assumption that where the surgeon has shown adequate care and caution in performing the surgery, the consent of the patient for removal of an organ is unnecessary. The Commission failed to notice E .., that the question was not about the correctness of the decision to remove the uterus and ovaries, but the failure to obtain the consent for removal of those important organs. There was a ~ also faint attempt on the part of the respondent's counsel to contend that what were removed were not 'vital' organs and F having regard to the advanced age of the appellant, as procreation was not possible, uterus and ovaries were virtually redundant organs. The appellant's counsel seriously disputes the position and contends that procreation was possible even at the age of 44 years. Suffice it to say that for a woman who G ' t has not married and not yet reached menopause, the reproductive organs are certainly important organs. There is also no dispute that removal of ovaries leads to abrupt menopause causing hormonal imbalance and consequential adverse effects. H

p. 776 Copy page pinpoint

--.., A Re : Question Nos.(iv) and (v) :

49Copy pinpoint49. The case of the appellant is that she was not suffering from endometriosis and therefore, there was no need to remove the uterus and ovaries. In this behalf, she examined Dr. Puneet Bedi (Obstetrician and Gynaecologist) who gave hormone B therapy to appellant for about two years prior to his examination in 2002. He stated that the best method to diagnose A endometriosis is diagnostic laparoscopy; that the presence of endometrial tissue anywhere outside the uterus is called Endometriosis; that the Histopathology report did not confirm c endometriosis in the case of appellant; and that the mode of treatment for endometriosis would depend on the existing extent of the disease. He also stated that removal of uterus results in abrupt menopause. In natural menopause, which is a slow process, the body gets time to acclimatize to the low level of D hormones gradually. On the other hand when the ovaries are removed, there is an abrupt stoppage of natural hormones and therefore Hormone Replacement Therapy is necessary to make up the loss of natural hormones. Hormone Replacement Therapy is also given even when there is a natural menopause. E But hormone replacement therapy has side effects and complications. He also stated that on the basis of materials ... available on the file, he was of the view that Hysterectomy was not called for immediately. But if endometriosis had been proven from history and following diagnostic laparoscopy, hysterectomy ~

F could be considered as a last resort if all other medical methods failed. What is relevant from the evidence of Dr. Puneet Bedi, is that he does not say that hysterectomy is not the remedy for endometriosis, but only that it is a procedure that has to be considered as a last resort.

50Copy pinpoint50. On the other hand, the respondent who is herself a experienced Obstetrician and Gynaecologist has given detailed evidence, giving the reasons for diagnosing the problem of appellant as endometriosis and has referred to in detail, the need for the surgery. She stated that having regard to the H medical condition of complainant, her decision to perform

SAMIRA KOHLI v. DR. PRABHA MANCHANDA & ANR. 777 [RAVEENDRAN, J.]

hysterectomy was medically correct. The complainant wanted A t- a cure for her problem and the AH-BSO surgery provided her such cure, apart from protecting her against any future damage to intestines, bladder and ureter. She explained that if the uterus · and ovaries had not been removed there was a likelihood of lesion extending to the intestines causing bleedings, fibrosis B and narrowing of the gut; the lesion could also go to the surface of the bladder penetrating the wall and causing haematuria and . ~ • the ureter could be damaged due to fibrosis leading to damage -" of the kidney; there was also a chance of development of cancer also. She also pointed out that the complainant being 44 years c of age, was in the precmenopausal period and had menorrhagia which prevented regular ovulation which was necessary for pregnancy; that endometriosis also prevented fertilization and produced reaction in the pelvis which increased lymphocytes and macrophages which destroy the ova and sperm; and that D the state of bodily health did not depend upon the existence of uterus and ovaries. ___..

51Copy pinpoint51. The respondent also examined Dr. Sudha Salhan, Professor and Head of Department (Obstetrics and Gynaecology) and President of the Association of Obstetricians E and Gynaecologists of Delhi. Having seen the records relating to appellant including the record pertaining to clinical and ultra- sound examinations, she was of the view that the treatment given to appellant was correct and appropriate to appellant's medical condition. She stated that the treatment is determined by severity F ~ of the disease and hysterectomy was not an unreasonable option as there was no scope left for fecundability in a woman aged 44 years suffering from endometriosis. She also stated that the histopathology report dated 15.5.1995 confirmed the diagnosis of endometriosis made by respondent. She also G stated that she saw video-tape of the laparoscopic examination and concurred that the opinion of respondent that the lesion being "' -+ extensive conservation surgery was not possible and the problem could effectively be addressed only by more extensive surgery that is removal of the uterus and ovaries. She also stated H

p. 778 Copy page pinpoint

A that the presence of chocolate cyst was indicative of endometriosis. She also stated that medication ·merely suppresses endometriosis and the definitive treatment was surgical removal of the uterus and both the ovaries. She also stated that hysterectomy is done when uterus comes out from a B prolapse and the woman is elderly, or when there is a cancer of the uterus, or when there are massive fibroids or when a severe grade of endometriosis along with ovaries or in cases of malignancy or the cancer of the ovaries.

52Copy pinpoint52. 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.

53Copy pinpoint53. 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 H appellant was suffering from endometriosis. On the other hand

SAMIRA KOHLI v. DR. PRABHA MANCHANDA & ANR. 779 [RAVEENDRAN, J.]

the respondent has relied on some observations of the A "-• ~.

-r 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 B 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 c 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) : D

54Copy pinpoint54. 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 , i 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 + -t 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 H

p. 780 Copy page pinpoint

A 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 wpuld be served if the respondent is denied the entire fee charged for B the surgery and in addition, directed to pay Rs.25,000 as compensation for the unauthorized AH-BSO surgery to the appellant.

55Copy pinpoint55. We accordingly allow this appeal and set aside the order of the Commission and allow the appellant's claim in part. C If the respondent has already received the bill amount or any part thereof from the appellant (either by executing the decree said to have been obtained by her or otherwise), the respondent shall refund the same to the appellant with interest at the rate of 10% per annum from the date of payment till the date of re- D payment. The Respondent shall pay to the appellant a sum of Rs.25,000/- as compensation with interest thereon at the rate of 10% per annum from 19.11.2003 (the date of the order of Commission) till date of payment. The appellant will also be entitled to costs of Rs.5,000 from the respondent. E S.K.S. Appeal allowed.