A.K. Mittal (Dr.) vs RAJ KUMAR

AS both the cases arise out of the same order of the State Commission in Appeal No. 1429 of 2002 dated 8.4.2005, we propose to pass a common order in both these Revision Petitions.

THE factual matrix of this case are that Master Mahesh Kumar suffered from an car infection as some discharge emitting from his ears was smelling badly which resulted in giddiness, vomiting and fever. His father took him to the nursing home, Orthonova Institute of Advanced Orthopaedic Surgery and Research where Dr. Mittal, ENT Surgeon examined the child and advised surgery. The child was admitted to the Hospital on 22.7.1997 and also operated upon on 26.7.1997 for "Modified Radical Mastoidectomy" against payment of Rs. 26,000, as charges. After the surgery, the child developed facial paralysis of right side. Despite that, he was discharged from the hospital on 27.7.1997. As there was no improvement, his father took him to AIIMS on 16.9.1997.

THE doctors of AIIMS, after examination, concluded that the child had developed facial paralysis, as nerve in the ear was dead with the following observations: "Facial Nerve -Completely transacted near 2nd Genu"

The doctors advised not to undergo further surgery, as it would involve further risk to the life of the patient. Dr. Mittal took the plea that the operation was performed according to well -established principle and there was absolutely no negligence on his part.

THE District Forum, after hearing the case held that Master Mahesh Kumar developed facial paralysis during the surgery and, therefore, the surgeon is guilty of medical negligence. On the issue of obtaining informed consent before surgery, the District Forum observed that the consent form does not even mention the name of the surgery nor its effects, therefore, it cannot be construed as a proper consent. The District Forum awarded compensation of Rs. 1,50,000 towards damages and a sum of Rs. 30,000 as compensation for mental agony suffered by his father besides Rs. 5,000 towards compensation.

AGGRIEVED by the order of the District Forum, Dr. Atul Mittal and the hospital filed appeals before the State Commission. The State Commission, after observing the medical records of AIIMS, where the child was taken after about 9 months of the surgery and also the medical test and report of Dr. Anil Safaya, ENT Specialist, Safdarjung Hospital held that there is a serious doubt as to whether there was medical negligence or deficiency in service on the part of the ENT surgeon while operating the patient. However, the hospital and the treating surgeon have not taken proper consent from the father of the patient by explaining the nature of the surgery and the likely complications, which can arise. Therefore, the State Commission awarded Rs. 1,50,000 with 5% interest from the date of complaint till the date of payment and Rs. 5,000 as cost of litigation.

DISSAFISFI ED by the order of the State Commission, Dr. A.K. Mittal and Hospital filed these two Revision Petitions before us. The learned Counsel for the surgeon submitted that the patient was admitted on 22.7.1997 and on 25.7.1997 consent was obtained and the surgery was performed on 26.7.1997. He drew our attention to the consent form in which it is clearly mentioned the name of the patient, Master Mahesh Kumar and his father signed the consent form where he has also understood that in this operation, he is liable to have complications, which can be serious and possibly fatal and has given six examples. Nerve injury is one of the examples given. He also drew our attention to the operative notes dated 23.7.1997 of the hospital wherein it is mentioned "PAC for MRM RT under GA from Dr. Deep Arora". He submitted that MRM means ''Modified Radical Mastoidectomy''. He showed us the treatment record upto 26.7.1997. Further he said that such surgeries involve risk and complication such as facial paralysis can take place, therefore, compensation awarded is exorbitant. It is not the case of the complainant that surgery was done unnecessarily and had the complainant been informed of the name of the surgery and the exact complications like facial paralysis, the complainant would not have opted for the surgery.

THE learned Counsel for the hospital submitted that the only issue raised by the Counsel for the complainant is that the name of the surgery was not mentioned in the consent form, which according to him is not material. He submitted that the reasons given by the State Commission are that the Hospital and Doctor Mittal were negligent in not making the ward of the child fully aware about the risks, their nature and the after effects in the language which was understandable and known to him, mere mechanical repetition of proforma of consent form is a lapse on the part of the Doctor and the Hospital. He also submitted that the observation of the State Commission that the practice of obtaining signatures of the ward and their relatives on the stereotyped mechanically prepared and Xerox copies of the consent form, mere mentioning that the operating doctor and the hospital are not responsible for the risk is not a good practice. Submission of the learned Counsel for the Complainant

MR . S.C. Sagar submitted that the patient was discharged on 29th July, 2007 just after two days of surgery without waiting for proper recovery. He also said that the progress reports were not filed before the District Forum. The complainant was not given full treatment records when they approached the AIIMS, name of the surgery and the techniques of conducting this complicated surgery were not mentioned at all in the consent form. Further, neither the discharge summary was given to the complainant or to the AIIMS nor it was filed before any one of the consumer Fora, i.e. District Forum, State Commission and even National Commission. He said that in Samira Kohli case, the Hon''ble Apex Court has held that informed consent is necessary before surgery. Findings:

THOUGH the District Forum has held that the treating surgeon and the hospital were guilty of medical negligence in performing the surgery as well as in not obtaining informed consent, the State Commission modified the order by holding them guilty of only on the ground of not obtaining the proper consent before performing the surgery. In this case a mere perusal of the consent form indicates that the name of the surgery has not been mentioned at all. The procedure and the techniques followed in performing the surgery have also not been mentioned. Further there is no mention that it is likely to cause facial paralysis. Therefore, by no stretch of imagination can this form be construed as informed consent.

IN S. Thamil Selvi v. Dr. Sooriya Kala and Anr., II (2007) CPJ 216 (NC), the informed consent has been defined as follows: "Consent: In this context, it is useful to look into the definition of ''consent'' The term ''consent'' is defined thus: "When two or more persons agree upon the same thing in the same sense they are said to consent as per the definition of ''consent'' given in Section 13 of Indian Contract Act, 1872."

"Express written consent is to be obtained for -(i) all major diagnostic procedures; (ii) general anaesthesia; (iii) surgical operations; (iv) intimate examinations; (v) examination for determining age, potency and virginity; and (vi) in medico -legal cases".

Informed consent: The concept of ''informed consent'' has come to the fore in recent years and many actions have been brought by patients who alleged that they did not understand the nature of the medical procedure to which they gave consent. All information must be explained in comprehensible non -medical terms preferably in local language about the : (i) diagnosis; (ii) nature of treatment; (iii) risks involved; (iv) prospects of success; (v) prognosis if the procedure is not performed; and (vi) alternative methods of treatment. The three important components of such consent are information, voluntariness and capacity. [Dr. Jagdish Singh and Vishwa Bhushan (1999), "Medical Negligence and Compensation" Bharat Law Publications, Jaipur].

ACCORDINGL Y we hold that informed consent was not obtained from the complainant.

SECONDLY , we are surprised to find that the hospital records were not given to the complainant, which would enable him to present the same before AIIMS. These were not even filed before the District Forum. They have only been filed before the State Commission. The crucial record, i.e. Discharge Summary has not been filed in any one of the Fora, including before us, which shows the petitioners in poor light.

THE Hon''ble Supreme Court in its landmark Judgment in Samira Kohli v. Prabha Manchanda (Dr.) and Anr., I (2008) CPJ 56 (SC)=II (2008) SLT 25, has held as under: "We may now summarize principles relating to consent as follows: (i) A doctor has to seek and secure the consent of the patient before commencing a treatment'' (the term ''treatment'' includes surgery also). The consent so obtained should be real and valid, which means that the patient should have the capacity and competence to consent; his consent should be voluntary; and his consent should be on the basis of adequate information concerning the nature of the treatment procedure, so that he knows what is consenting to.

(ii) The ''adequate information'' to be furnished by the doctor (or a member of his team) who treats the patient, should enable the patient to make a balanced judgment as to whether he should submit himself to the particular treatment as to whether he should submit himself to the particular treatment or not. This means that the Doctor should disclose (a) nature and procedure of the treatment and its purpose, benefits and effect; (b) alternatives, if any, available; (c) an outline of the substantial risks; and (d) adverse consequences of refusing treatment. But there is no need to explain remote or theoretical risks involved, which may frighten or confuse a patient and result in refusal of consent for the necessary treatment. Similarly, there is no need to explain the remote or theoretical risks of refusal to take treatment, which may persuade a patient to undergo a fanciful or unnecessary treatment. A balance should be achieved between the need for disclosing necessary and adequate information and at the same time avoid the possibility of the patient being deterred from agreeing to a necessary treatment or offering to undergo an unnecessary treatment.

(iii) Consent given only for a diagnostic procedure, cannot be considered as consent for therapeutic treatment. Consent given for a specific treatment procedure will not be valid for conducting some other treatment procedure. The fact that the unauthorized additional surgery is beneficial to the patient, or that it would save considerable time and expense to the patient, or would relieve the patient from pain and suffering in future, are not grounds of defence in an action in tort for negligence or assault and battery. The only exception to this rule is where the additional procedure though unauthorized, is necessary in order to save the life or preserve the health of the patient and it would be unreasonable to delay such unauthorized procedure until patient regains consciousness and takes a decision.

(iv) There can be a common consent for diagnostic and operative procedures where they are contemplated. There can also be a common consent for a particular surgical procedure that may become necessary during the course of surgery.

(v) The nature and extent of information to be furnished by the doctor to the patient to secure the consent need not be of the stringent and high degree mentioned in Canterbury but should be of the extent which is accepted as normal and proper by a body of medical men skilled and experienced in the particular field. It will depend upon the physical and mental condition of the patient, the nature of treatment, and the risk and consequences attached to the treatment."

THE ratio of this case is squarely applicable to the case on hand and from the perusal of the consent form signed by the father, is not the form, clearly proves that the principles relating to the consent, as enunciated by the Hon''ble Apex Court have not at all been followed by the petitioners.

ACCORDINGL Y , it is a clear -cut case of negligence on their part. Therefore, we do not see any merit in this revision petition. Further the patient has suffered facial paralysis at a young age, which cannot be corrected by any amount of money and he has to suffer this agony throughout his life. Therefore, the compensation awarded by the State Commission cannot be construed as excessive or exorbitant by any stretch of imagination.

ACCORDINGL Y , these Revision Petitions are dismissed. Each one of the petitioners shall pay Rs. 10,000 as cost to the respondents. R.Ps. dismissed.