PUNJABI NURSING HOME vs KAILASH MARODIA

THE two appeals arise out of order dated 25.5.2000 passed in Case No. 19/2000 by the District Consumer Disputes Redressal Forum, Rajgarh (for short the ''District Forum'') whereby the complaint for deficiency in service in performing surgery/operation of rectal prolapse was partly allowed with an order to pay compensation of Rs. 12,000/- and Rs. 100/- as costs of the proceedings.

ADMITTEDLY, the complainant Kailash Marodia contacted Dr. J.K. Punjabi in Punjabi Nursing Home at Rajgarh (Biora) for treatment of his rectal prolapse. According to the complainant he was given 100 per cent guarantee of successful operation and treatment, the complainant was admitted on 14.3.1998 on whom surgery was performed on 17.3.1998. The complainant was discharged on 29.3.1998. According to the complainant, he paid an amount of Rs. 25,000/- of which he demanded receipt which was not given to him. The complainant''s operation was not successful as till the date of filing of the complaint he is suffering from the disease and had to contact another Doctors of Adarsh Hospital Shahjahanabad, Bhopal. The complaint filed on 14.3.2000 to claim compensation of Rs. 2,19,000/- for medical negligence, was resisted. It was stated that the operation was performed after taking written consent and an amount of Rs. 7,368/- including cost of blood transfusion and medicines was paid of which a certificate of Rs. 12,000/- was given. The District Forum after hearing learned Counsel for the parties held that the consent produced is not signed by the complainant wherein the words have been added which reads thus : "xxx xxx xxx", while the allegation of the complainant is that the respondent Doctor gave 100 per cent guarantee. Similarly, when amount of Rs. 7,368/- was charged but why certificate of Rs. 12,000/- was given which was not proper. As to the negligence in performing surgery and in pre and post operative care as no expert evidence was adduced, therefore, the District Forum did not held the Doctor responsible for medical negligence in performing operation and in administration of treatment. However, for the lapse of issuance of certificate of the amount of Rs. 12,000/- and the consent wherein words were added, awarded Rs. 12,000/- as compensation and Rs. 100/- as costs of the proceedings. After hearing learned Counsel for the parties and on reappraisal of evidence on record, in the absence of evidence of negligence or deficiency in service in performing surgery or pre and post operative care the burden of which was on the complainant, in our opinion, the District Forum rightly held that the negligence has not been established in performing operation.

In an action for negligence in tort against a surgeon a complainant who claims compensation for deficiency in medical service has to prove the allegations of negligence by legal and expert evidence. The Supreme Court in Laxman Balkrishna Joshi v. Trimbak Bapu Godbole, (1969) 1 SCR 206, followed in Indian Medical Association v. V.P. Shantha, III (1995) CPJ 1 (SC), observed that the duties which a doctor owes to his patient are clear. A person who holds himself out ready to give medical advice and treatment impliedly undertakes that he is possessed of skill and knowledge for the purpose. Such a person when consulted by a patient owes him certain duties, viz., a duty of care in deciding whether to undertake the case, a duty of care in deciding what treatment to give or a duty of care in the administration of that treatment. A breach of any of those duties gives a right of action for negligence to the patient. The practitioner must bring to his task a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence judged in the light of the particular circumstances of each case is what the law requires.

IN the case in hand the complainant has not established any breach of any of the duties or medical negligence by legal or expert evidence to prove any deficiency in service in performing surgery or in taking in pre and post operative care. IN view of this the finding of the District Forum that the complainant has failed to establish deficiency in operation, treatment and pre and post operative care does not call for interference. However, the fact remains that for performing operation though Doctor took a stand that the consent was taken wherein 100 per cent guarantee was not given, the consent signed by the complainant has not been produced. On record consent dated 17.3.1998 has been produced which is signed by one R.C. Pushpad wherein the words quoted herein above were added. It is not the case of the Doctor that in emergency operation was performed without consent or even there was oral consent as on the date of admission and prior to surgery, the complainant was unconscious. On the other hand the Doctor has come with specific case that the consent was taken which is signed by R.C. Pushpad which has been proved by the affidavit, of R.C. Pushpad. The relationship of R.C. Pushpad with the complainant has not been proved. It is merely stated that R.C. Pushpad is the friend of the complainant who was present at the time of surgery. The complainant is not an illiterate person. The consent produced by the appellant is with a view to meet the case of the complainant that the Doctor did not charge Rs. 25,000/- nor he gave 100 per cent guarantee.

IN Medical field, the word "CONSENT" carries a great importance. The concept of consent is not new to the modern world. Consent plays a remarkable legitimate role in the medical field specially in the field of medical negligence. The "Consent" should be a free consent as envisaged by Section 10 of the INdian Contract Act in the context of medical negligence. A duty is cast upon the medical practitioner to prove that he did not use any undue influence in order to get a legally valid consent from a patient and he has at no point of time utilized his dominant and superior position in obtaining consent from patient who is always practically in a precarious need and difficult position. IN case the consent is not obtained that will give rise to cause of action for seeking the remedy criminally for making any invasive procedure without consent of patient amounting to assault, with criminal force under Section 350 of the INdian Penal Code and can also seek a civil remedy for compensation for the injury occurred to the patient in accordance with Law of Torts. According to Law of Torts, if the doctor does not seek a legally valid consent; and even if there are no damages in the form of negligence, the patient can sue the doctor for the injury upon his personal or private rights encroached upon which has been endowed upon him by legislative enactments. The principle of requiring consent applies in all the cases except in certain circumstances in which a Doctor may be entitled to proceed without his consent, firstly - when the patient''s balance of mind is disturbed; secondly, when the patient is incapable of giving consent by reason of unconsciousness; and finally when the patient is a minor but none of the condition exists in the present case. On the other hand, in our opinion the Doctor has come with a case of proxy consent i.e., of not of the close relative but of a friend. In fact, this consent has been produced in defence to meet the case of the complainant of payment of Rs. 25,000/- and of the assurance of the Doctor of 100 per cent guarantee of succession of the operation. In such circumstances, either consent was not taken or real consent taken from the complainant has been suppressed which certainly amounts to negligence for giving rise to cause of action irrespective of the fact that medical negligence or deficiency has not been established. A Division Bench of the Madhya Pradesh High Court in case of Ram Bihari Lal v. Dr. J.M. Shrivastava, 1985 MPLJ 288, while considering the negligence of a medical practitioner in a case of performing operation in the hospital of gall bladder without further investigation, without consent of the patient or her husband and without taking necessary precautions which resulted in the death of the patient held that the doctor has failed in his duty of care and he was most careless and negligent in performing his duties, hence, he was liable to pay damages for his wrongful act. The question of consent was dealt with in para 15 which we quote : "15. In Medical Negligence by Nathan, 1957 Edition, it has been observed at page 156 as follows : The intentional interference with the person of another without legal justification amounts to an actionable assault and battery for which damages may be recoverable by the injured person. Such damages will of course include compensation for actual injuries suffered as the result of the assault, but in addition a Judge or Jury is at liberty, in a proper case, to award the plaintiff exemplary damages in respect of an assault or battery as a means of punishing the defendant for reprehensible conduct in invading the plaintiff''s personal rights without justification. Bodily interference which would otherwise amount to an assault and battery may, however, be justified by showing that the "patient" voluntarily submitted to the conduct in question. No action lies, therefore, against a medical man who interferes with the person of a patient if the patient''s consent to the interference has been obtained. But for a medical man to administer treatment to or perform an operation upon a patient without the latter''s consent amounts, subject to some exceptions which will be noticed in due course, to an actionable assault. Glanville Williams in his text-book on Criminal Law, 7th Edition, at page 568 has discussed this topic as under : ''Although English authority is lacking, the operation is clearly lawful. This was stated by an eminent member of the United States Supreme Court Cardozo, J. Every human being of adult years and sound mind has a right to determine what shall be done with his own body... This is true except in cases of emergency where the patient is unconscious and where it is necessary to operate before consent can be obtained.'' We have here a kind of hybrid between the defences of necessity and consent. It is not an ordinary case of consent, because consent is not in fact given; so from that point of view the justification must be one of necessity. On the other hand, the justification would clearly not avail if the surgeon ascertained, before the patient fell unconscious, that the patient withheld his consent. American writers have called the defence, with more punch than accuracy, "future consent". The surgeon is entitled in the circumstances to suppose that what he does will be ratified by a grateful patient, having nothing to cause him to suppose the contrary; and he will be protected in law even though the patient turns out to be ungrateful. His defence must, to repeat, be grounded on necessity; the only distinctive feature is that the defence is curtailed when it conflicts with the patient''s express exercise of his right of self-determination. It would be an illegitimate application of the doctrine of future consent to subject to a depressed and protesting patient to a brain operation on the ground that the operation will change the patient''s personality and he will then be pleased he had it. That is a bootstrap argument, and ought to be rejected. The general question of operation on the mentally disordered will be briefly considered in 11. Sometimes, in the course of an operation, a surgeon sees a need for some other operation. He is generally protected in performing this by the consent form signed by the patient, which authorizes such further or alternative operative measures as may be found to be necessary. But sometimes a consent form is not offered to the patient, as when a maternity patient is under anaesthesia and when it is discovered that delivery by caesarean section is necessary. In such circumstances, the Medical Defence Union encourages its members to do what is required, the justification being either implied consent or necessity. The surgeon would of course be ill-advised to perform an unexpected operation having serious consequences if there is no great urgency for it."

KERALA State Consumer Disputes Redressal Commission, Thiruvananthapuram in case of Dr. Janaki S. Kumar v. Mrs. Sarafunnisa, I (2000) CPJ 66, a case where sterilisation done without the consent, which was obtained during the course of surgery observed in para 14 thus : "14. When one speaks of consent; that should be informed consent, the person who should give the consent must be aware of the risk involved and on that awareness the patient, should give consent. When as indicated, the patient was in General Anaesthesia neither could the patient understand the risk involved nor could she give consent. In view of the aforesaid discussion it is not possible to agree with the learned Counsel for the appellant that the finding entered by the District Forum in this aspect is vitiated."

Gujarat State Consumer Disputes Redressal Commission, Ahmedabad in case of Aphraim Jayanand Rathod v. Dr. Shailesh Shah, I (1996) CPJ 243, a case where operation of appendicitis was performed, thereafter second operation was also performed without written consent under the guise of removal of stitches and no explanation was given for second operation, the State Commission held that the doctor was deficient in rendering medical service and is liable to pay compensation.

IN view of the above, we are of the opinion that for want of real consent, the complainant is entitled to compensation. The complainant has claimed compensation of Rs. 2,19,000/- which is highly exaggerated. He also claims for refund of Rs. 25,000/- the payment of which has not been proved. IN the circumstances, in our opinion the District Forum rightly passed the order against the opposite parties Doctor and Nursing Home to pay compensation of Rs. 12,000/-. Accordingly, we direct the respondents No. 1 - Punjabi Nursing Home and respondent No. 2 Dr. J.K. Punjabi, to pay jointly or severally the amount of Rs. 12,000/- along with Rs. 1,000/- as costs of the proceedings throughout within a period of two months from the date of receipt of certified copy of this order failing which interest would be payable at the rate of 12 per cent per annum on the amount of Rs. 12,000/- from the date of this order till its payment. In the result, appeals fail and are dismissed with no order as to costs. A copy of this order be conveyed to the parties and a copy be sent to the District Forum along with the record of the case. Appeals dismissed.