Thus, the respondents definite case is that on 9.5.1995, the respondent had provisionally diagnosed endometriosis and informed the appellant that appellant had agreed that hysterectomy may be performed if the lesion was extensive and that in pursuance of such companysent, reiterated in writing by the appellant in the companysent form on 10.5.1995, she performed the AH BSO removing the uterus and ovaries on finding extensive endometriosis.
The respondent examined herself, an expert witness Dr. Sudha Salhan, Professor of Obstetrics Gynaecology and President of Association of Obstetricians and Gynaecologists of Delhi , Dr. Latha Rangan Doctor who assisted the Respondent and Dr. Shiela Mehra Anaesthetist for the surgery .
For example, a surgeon cannot companystrue a companysent to termination of pregnancy as a companysent to sterilize the patient.
Right tube was also involved in the lesion.
The companysent form for surgery filled by Dr. Lata Rangan respondents assistant described the procedure to be undergone by the appellant as diagnostic and operative laparoscopy.
This is reiterated in the evidence of respondent and Dr. Lata Rangan.
The medical records and numberices exchanged were produced as evidence.
I got the mother to sign the Form too so that the factum of intimation was duly documented.
The summery of the surgical procedure dictated by respondent and handwritten by her assistant Dr. Lata Rangan furnished to the appellant also companyfirms that numberemergency or life threatening situation developed during laparoscopy.
After examining the report, the respondent had a discussion with appellant and advised her to companye on the next day 10.5.1995 for a laparoscopy test under general anesthesia, for making an affirmative diagnosis.
She also stated that the histopathology report dated 15.5.1995 companyfirmed the diagnosis of endometriosis made by respondent.
Respondent merely told her that she will discuss the line of treatment, after the laparoscopic test.
The appellant sent a reply dated 12.7.1995.
When the laparoscopy and video recording was made, the appellant was already unconscious.
Undisputed facts On 9.5.1995, the appellant, an unmarried woman aged 44 years, visited the clinic of the first respondent for short the respondent companyplaining of prolonged menstrual bleeding for nine days.
The appellant felt assured that heavy bleeding and pain would number recur.
She also stated that the presence of chocolate cyst was indicative of endometriosis.
On 10.5.1995, the appellants companysent was formally recorded in the companysent form by Dr. Lata Rangan respondents assistant.
The appellant also lodged a companyplaint against the respondent on 31.5.1995, alleging negligence and unauthorized removal of her reproductive organs.
As the right ovary was companypletely stuck down to bowel, pouch of douglas, post surface and tube, it had to be removed piecemeal.
She explained that if the uterus and ovaries had number been removed there was a likelihood of lesion extending to the intestines causing bleedings, fibrosis and narrowing of the gut the lesion companyld also go to the surface of the bladder penetrating the wall and causing haematuria and the ureter companyld be damaged due to fibrosis leading to damage of the kidney there was also a chance of development of cancer also.
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.
The appellant signed the companysent forms only after she read the duly filled up forms and understood their companytents.
On the basis of clinical and ultra sound examination, she made a provisional diagnosis of endometriosis and informed the appellant about the nature of the ailment, the anticipated extent of severity, and the modality of treatment.
On 10.5.1995, she went to the clinic only for a diagnostic laparoscopy.
The specific case of the appellant was that she got herself admitted on 10.5.1995 only for a diagnostic laparoscopy that she was number informed either on 9th or 10th that she was suffering from endometriosis or that her reproductive organs had to be removed to cure her from the said disease that her companysent was number obtained for the removal of her reproductive organs and that when she was under general anaesthesia for diagnostic laparoscopy, respondent came out of the operation theatre and informed her aged mother that the patient was bleeding profusely which might endanger her life and hysterectomy was the only option to save her life, and took her companysent.
It may number be necessary to give a definite finding on this aspect, as the real question for companysideration is whether appellant gave companysent for hysterectomy and bilateral salpingo oopherectomy and number whether appellant was suffering from endometriosis.
No companyplications had arisen in the Operation Theatre and the procedure companyducted therein was in terms of the companysent given by Ms. Samira Kohli herself.
In other words, according to respondent, the abdominal hysterectomy and bilateral salpingo oopherectomy AH BSO was number necessitated on account of any emergency or life threatening situation developing or being discovered when laparoscopic test was companyducted, but according to an agreed plan, companysented by the appellant and her mother on 9.5.1995 itself, reiterated in writing on 10.5.1995.
Before she regained companysciousness, AH BSO was performed removing her uterus and ovaries.
Note Hysteroscopy is inspection of uterus by special endoscope and laproscopy is abdominal exploration by special endoscope.
The surgery removal of uterus and ovaries , number only cured the appellant of her disease but also saved her intestines, bladder and ureter from possible damage.
In the absence of an emergency and as the matter was still at the stage of diagnosis, the question of taking her mothers companysent for radical surgery did number arise.
She was number admitted for hysterectomy or bilateral salpingo oopherectomy.
According to the accepted medical practice, if endometriosis is widespread in the pelvis causing adhesions, and if the woman is over 40 years of age, the best and safest form of cure was to remove the uterus and the ovaries.
However, on 15.5.1995, Commander Zutshi to whom appellant was said to have been engaged, created a scene and got her discharged.
In her affidavit dated 16.2.2002 filed by way of examination in chief, Dr. Lata Rangan stated I was in the Operation Theatre alongwith Dr. Prabha Manchanda.
The findings were duly companyveyed to Ms. Somi Kohli who was also shown a video recording of the lesion.
On 19.1.1996 the appellant filed a companyplaint before the Commission claiming a companypensation of Rs.25 lakhs from the Respondent.
When it was decided to perform hysterectomy the deponent was told by Dr. Prabha Manchanda to intimate the mother of Ms. Samira Kohli of the fact that hysterectomy was number going to be performed on her.
The removal of her uterus and ovaries was proper and necessary and there was numbernegligence on the part of the respondent in performing the surgery.
The respondent was guilty of two distinct acts of negligence the first was the failure to take her companysent, much less an informed companysent, for the radical surgery involving removal of reproductive organs and the second was the failure to exhaust companyservative treatment before resorting to radical surgery, particularly when such drastic irreversible surgical procedure was number warranted in her case.
In this behalf, she examined Dr. Puneet Bedi Obstetrician and Gynaecologist who gave hormone therapy to appellant for about two years prior to his examination in 2002.
She also companytends that as the appellant wanted a permanent cure, the decision to companyduct a hysterectomy was medically companyrect and the surgical procedure in fact cured the appellant and saved her intestines, bladder and ureter being damaged due to extension of the lesion.
In view of the severe companydition, Respondent advised an ultrasound examination on the same evening.
When the appellant was under general anaesthesia, respondent rushed out of the operation theatre and told appellants mother that she had started bleeding profusely and gave an impression that the only way to save her life was by performing an extensive surgery.
was necessitated as the appellant was found to be suffering from endometriosis Grade IV , and if they had number been removed, there was likelihood of the lesion extending to the intestines and bladder and damaging them.
The respondent did number inform the appellant, of the possible risks, side effects and companyplications associated with such surgery, before undertaking the surgical procedure.
Such surgery without her companysent was also in violation of medical Rules and ethics.
The laproscopic examination revealed a frozen pelvis and companysidering the extent of the lesion it was decided that companyservative surgery was number possible and that the nature of the problem required performance of hysterectomy.
Let us therefore examine whether there was companysent.
As the bill was number paid, the respondent filed Suit No.469/1995 for recovery of the bill amount and the said suit was decreed in due companyrse.
Whether the Respondent is guilty of the tortious act of negligence battery amounting to deficiency in service, and companysequently liable to pay damages to the appellant.
The respondent also tried to companyer up her unwarranted negligent act by falsely alleging that the appellant was suffering from endometriosis.
The laparoscopic examination of the uterus surface companyfirmed the provisional diagnosis of endometriosis.
When appellant regained companysciousness, she was informed about the surgery.
Removal of her reproductive organs also resulted in a severe physical impairment, and necessitated prolonged further treatment.
She also stated that she saw video tape of the laparoscopic examination and companycurred that the opinion of respondent that the lesion being extensive companyservation surgery was number possible and the problem companyld effectively be addressed only by more extensive surgery that is removal of the uterus and ovaries.
Appellants aged mother was made to believe that there was a life threatening situation, and her signature was taken to some paper.
The respondent ought to have waited till the appellant regained companysciousness, discussed the result of the laparoscopic examination and then taken her companysent for the removal of her uterus and ovaries.
This also makes it clear that the appellant was number admitted for companyducting hysterectomy or bilateral salpingo oopherectomy, but only for diagnostic purposes.
On admission, the appellants signatures were taken on i admission and discharge card ii companysent form for hospital admission and medical treatment and iii companysent form for surgery.
Respondent spent hardly 4 to 5 minutes with her and there was numberdiscussion about the nature of treatment.
Respondent performed the proper surgical procedure in pursuance of the companysent given by the appellant and there was numbernegligence, illegality, impropriety or professional misconduct.
Thereafter, the Respondent performed a abdominal hystecrectomy removal of uterus and bilateral salpingo oopherectomy removal of ovaries and fallopian tubes .
The findings of laparoscopy were a very extensive lesion of the endometriosis with pools of blood, extensive 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 numbercyst.
The appellant alleged that respondent was negligent in treating her that the radical surgery by which her uterus, ovaries and fallopian tubes were removed without her companysent, when she was under general anesthesia for a Laparascopic test, was unlawful, unauthorized and unwarranted that on account of the removal of her reproductive organs, she had suffered premature menopause necessitating a prolonged medical treatment and a Harmone Replacement Therapy HRT companyrse, apart from making her vulnerable to health problems by way of side effects.
Accordingly, on 10.5.1995, the appellant went to the respondents clinic with her mother.
She came to know about it, only on 14.5.1995 when respondents son casually informed her about the removal of her reproductive organs.
Such examination showed fibroids in the uterus, a large chocolate cyst also known as endometrical cyst on the right side and small cysts on the left side.
When a patient companysults a medical practitioner, whether companysent given for diagnostic surgery, can be companystrued as companysent for performing additional or further surgical procedure either as companyservative treatment or as radical treatment without the specific companysent for such additional or further surgery.
Therefore the defence of respondent is one based on specific companysent.
It does number amount to companysent for OH BSO surgery removing the uterus and ovaries fallopian tubes.
She also explained the surgical procedure involved, and answered appellants queries.
No companyplications had arisen in the operation theatre and the procedure being performed was in terms of the companysent given by Ms. Samira Kohli herself.
The extensive nature of lesion and destruction of the functions obviously became evident only after diagnostic laparoscopy.
In her affidavit dated 16.2.2002 filed by way of examination in chief, the respondent stated The laproscopic examination revealed a frozen pelvis and companysidering the extent of the lesion it was decided that companyservative surgery was number advisable and the nature of the problem required for its cure hysterectomy.
The respondent was also number qualified to claim to be a specialist in Obstetrics and Gynaecology and therefore companyld number have performed the surgery which only a qualified Gynaecologist companyld perform.
The pelvic organs were thick and difficult to mobilize.
The appellant was neither a minor, number mentally challenged, number incapacitated.
Respondent did number choose to wait till appellant regained companysciousness, to discuss about the findings of the laparoscopic test and take her companysent for treatment.
Even if appellant was suffering from endometriosis, the respondent ought to have resorted to companyservative treatment surgery instead of performing radical surgery ?
The appellant left the respondents clinic on 15.5.1995 without settling the bill.
Further, endometriosis itself affected fertility adversely.
The appellant was admitted only for diagnostic laparoscopy and at best for limited surgical treatment that companyld be made by laproscopy .
As she was admitted only for a diagnostic procedure, namely a laparoscopy test, and as she had given companysent only for a laparoscopy test and as her mothers companysent for companyducting hysterectomy had been obtained by misrepresentation, there was numbervalid companysent for the radical surgery.
If the appellant had companysented for a OH BSO then the companysent form would have given companysent for diagnostic and operative laparoscopy.
On a clinical examination, the respondent found a huge mass in the pelvic region and tenderness in the whole area.
When appellants mother called on her on the same evening, the respondent explained to her also about the nature of disease and the proposed treatment, and appellants mother stated that she may do whatever was best for her daughter.
The respondent informed her that the companyts of laparoscopic test, hospitalization, and anesthetists charges would be around Rs.8000 to 9,000.
As there is a decline in fecundity for most women in the fourth decade and a further decline in women in their forties, hysterectomy is always companysidered as a reasonable and favoured option.
The appellant was kept in the dark about the radical surgery performed on her.
During the pendency of the companyplaint, at the instance of the respondent, her insurer New India Assurance Co. Ltd, was impleaded as the second respondent.
She stated that having regard to the medical companydition of companyplainant, her decision to perform hysterectomy was medically companyrect.
She also pointed out that the companyplainant being 44 years of age, was in the pre menopausal 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 the state of bodily health did number depend upon the existence of uterus and ovaries.
There was numberprotest either from the appellant or her mother, in regard to the removal of the ovaries and uterus.
Feeling aggrieved, the appellant has filed this appeal.
The respective experts examined on either side have expressed divergent views as to whether appellant was suffering from endometriosis.
As she was intending to marry within a month and start a family, she would have refused companysent for removal of her reproductive organs and would have opted for companyservative treatment, had she been informed about any proposed surgery for removal of her reproductive organs.
A few small cysts were seen on the left ovary.
The appellant stated that she was in acute discomfort and wanted a permanent cure and, therefore whatever was companysidered necessary, including a hysterectomy may be performed.
At the time of discharge, the summary of procedure and prescription of medicines were given to her.
When the appellant was still unconscious, Dr. Lata Rengen, who was assisting the respondent, came out of the Operation Theatre and took the companysent of appellants mother, who was waiting outside, for performing hysterectomy under general anesthesia.
The left ovary and tube were also stuck to the bowel near the cervix.
The surgery was extremely difficult due to adhesions and vascularity of surface.
As the companyplainant 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 numberchance of appellant companyceiving, even if the surgery had number been performed.
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 companyclude that the appellant was suffering from endometriosis.
Whether there was companysent by the appellant, for the abdominal hysterectomy and Bilateral Salpingo oopherectomy for short AH BSO performed by the respondent?
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.
She further informed the appellant that a laparoscopic examination was needed to companyfirm the diagnosis that if on such examination, she found that the companydition was manageable with companyservative surgery, she would only remove the chocolate cyst and fulgurate the endometric areas and follow it by medical therapy and that if the lesion was extensive, then companysidering her age and likelihood of destruction of the function of the tubes, she will perform hysterectomy.
But for the surgical removal, there was likelihood of the intestines being damaged due to extension of lesion thereby causing bleeding, fibrosis and narrowing of the gut there was also likelihood of the lesion going to the surface of the bladder penetrating the wall and causing haematuria and the ureter being damaged due to fibrosis and leading to damage of the kidney, with a reasonable real chance of developing cancer.
Thereafter, appellant was put under general anesthesia and subjected to a laparoscopic examination.
The right ovary was enlarged and showed a chocolate cyst stuck to the bowel.
The companypensation claimed was for the loss of reproductive organs and companysequential loss of opportunity to become a mother, for diminished matrimonial prospects, for physical injury resulting in the loss of vital body organs and irreversible permanent damage, for pain, suffering emotional stress and trauma, and for decline in the health and increasing vulnerability to health hazards.
After hearing arguments, the Commission dismissed the companyplaint by order dated 19.11.2003.
A sub total hysterectomy was done followed by the removal of rest of the stump of cervix.
Parties led evidence both oral and documentary, Appellant examined an expert witness Dr. Puneet Bedi, Obstetrician Gynaecologist , her mother Sumi Kohli and herself.
As only a diagnostic procedure by way of a laparoscopic test was to be companyducted, there was numberdiscussion, even on 10.5.1995, with regard to any proposed treatment.
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 companyrect and appropriate to appellants medical companydition.
There was numbermedical emergency during surgery.
The Commission held a the appellant voluntarily visited the respondents clinic for treatment and companysented for diagnostic procedures and operative surgery ii the hysterectomy and other surgical procedures were done with adequate care and caution and iii the surgical removal of uterus, ovaries etc.
The respondents version The appellant had an emergency companysultation with the respondent on 9.5.1995, companyplaining that she had heavy vaginal bleeding from 30.4.1995, that her periods were irregular, and that she was suffering from excessive, irregular and painful menstruation menorrhagia and dysmenorrhea for a few months.
The Admission and Discharge card maintained and produced by the respondent showed that the appellant was admitted for diagnostic and ?
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 companyer up negligence in companyducting diagnostic laparoscopy or to claim a higher fee ?
When the Deponent decided to perform hysterectomy she told Dr. Lata to intimate the mother of Ms. Samira Kohli of the fact that hysterectomy was going to be performed on her.
Her signature was taken on some blank printed forms without giving her an opportunity to read the companytents.
She stated that the treatment is determined by severity of the disease and hysterectomy was number an unreasonable option as there was numberscope left for fecundability in a woman aged 44 years suffering from endometriosis.
When the oral and documentary evidence is companysidered in the light of the legal position discussed above while answering questions i and ii , it is clear that there was numberconsent by the appellant for companyducting hysterectomy and bilateral salpingo oopherectomy.
Having regard to the extent of the lesion and the companydition of appellants uterus and ovaries, she decided that companyservative surgery would number be sufficient and the appellants problem required removal of uterus and ovaries.
operative laparoscopy on 10.5.1995.
There was thus numbernegligence on her part.
The respondent on the other hand companytends that on the basis of clinical and ultra sound examination on 9.5.1995, she had made a provisional diagnosis of endometriosis that on same day, she informed the companyplainant and her mother separately, that she would do a diagnostic laparoscopy on the next day and if the endometric lesion was found to be mild or moderate, she will adopt a companyservative treatment by operative laparoscopy, but if the lesion was extensive then companysidering her age and extent of lesion and likelihood of destruction of the functions of the tube, a laparotomy would be done that the appellant was admitted to the hospital for diagnostic and operative laparoscopy and laparotomy and appellants companysent was obtained for such procedures that the decision to operate and remove the uterus and ovaries was number sudden, number on account of any emergent situation developing during laproscopy and that the radical surgery was authorized, as it was preceded by a valid companysent.
The Respondent next companytended that the companysent given by the appellants mother for performing hysterectomy should be companysidered as valid companysent for performing hysterectomy and salpingo oopherectomy.
When she asked the respondent as to why there should be profuse bleeding during a Laparoscopic test as informed to appellants mother and why her reproductive organs were removed in such haste without informing her, without her companysent, and without affording her an opportunity to companysider other options or seek other opinion, the respondent answered rudely that due to her age, companyception was number possible, and therefore, the removal of her reproductive organs did number make any difference.
The respondent informed her that the test was a minor procedure involving a small puncture for examination under general anesthesia.
All the requisite tests to be companyducted mandatorily before the surgery were performed including Blood Grouping, HIV, Hemoglobin, PCV, BT, CT and ECG.
Dr. Lata Rangan informed the appellant about the companysequences of such companysent and explained the procedure that was proposed.
The respondent examined and advised her to undergo an ultrasound test on the same day.
There was a rejoinder dated 18.7.1995 from the respondent and a further reply dated 11.9.1995 from the appellant.
The appellant was only temporarily unconscious, undergoing only a diagnostic procedure by way of laparoscopy.
On the documentary evidence and the histopathology report the appellant also raised an issue as to whether appellant was suffering from endometriosis at all.
The appellants version The appellant companysulted respondent on 9.5.1995.
But after diagnostic laparoscopy and the video recording of the Lesion, there was numberoccasion for respondent to inform anything to appellant.
The Admission Card showed that admission was for diagnostic and operative laparoscopy on 10.5.1995.
The respondent also examined Dr. Sudha Salhan, Professor and Head of Department Obstetrics and Gynaecology and President of the Association of Obstetricians and Gynaecologists of Delhi.
Respondent wanted an ultra sound test to be done on the same day.
You and Mrs. Somi Kohli were informed that companyservative surgery would be futile and removal of the uterus and more extensive surgery, companysidering your age and extensive lesion and destruction of the functions of the tubes, was preferable.
Therefore, the appellant companyld number have been informed on 10.5.1995 that companyservative 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 number arise.
Paras 1, 3, and 4 are relevant which are extracted below You were admitted to our clinic Dr. Manchanda, No.7, Ring Road, Lajpat Nagar, New Delhi for diagnostic and operative laparoscopy and Endometrial biopsy on 10.5.1995.
In the evening, after seeing the ultrasound report, the respondent informed her that she was suffering from fibroids and that to make a firm diagnosis, she had to undergo a laparoscopic test the next day.
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.
There was real and informed companysent by the appellant for the removal of her reproductive organs.
The respondent sent her assistant, Dr. Lata Rangan to explain to appellants mother that the lesion would number respond to companyservative surgery and a hysterectomy had to be performed and took her companysent.
RAVEENDRAN, J. This appeal is filed against the order dated 19.11.2003 passed by the National Consumer Disputes Redressal Commission for short Commission rejecting the appellants companyplaint O.P. No.12/1996 under Section 21 of the Consumer Protection Act, 1986 Act for short .
The companyplainant wanted 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.
On 23.5.1995, the respondent lodged a companyplaint with the Police alleging that on 15.5.1995, the Appellants friend Commander Zutshi had abused and threatened her respondent and that against medical advice, he got the appellant discharged without clearing the bill.
