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Hemant Agarwal ( Mumbai : 9820174108)     27 May 2009

Medical Negligence - Doctors must take "INFORMED" consent

Dear All,
The following appeared in  "Times of India", Mumbai Edition on May 27, 2009, page no. 15.

Keep Smiling ... HemantAgarwal

Doctors must take ‘informed’ consent

Backdrop: When an invasive procedure or surgery is required, written consent is a must. How seriously

do doctors act on taking ‘informed consent’? More often than not, doctors treat consent as a mere

formality to safeguard themselves rather than for the purpose of making the patient aware of what he is

letting himself in for. Is such consent valid in the eyes of the law?

Case Study:

Mahesh Kumar, a young boy, was suffering from an ear infection with a foul-smelling discharge emitting

from his ears, combined with giddiness, vomiting and fever. His father took him to Orthonova Institute of

Advance Orthopaedic Surgery and Research where Dr A K Mittal, an ENT Surgeon, examined the child

and advised surgery known as Modified Radical Mastoidectomy costing Rs 26,000. Two days after

surgery, the boy was discharged. However, there was no improvement.

   Nine months later,Mahesh’s father took him to AIIMS hospital where the doctors said that the child

had developed facial paralysis due to the nerve of the ear becoming dead. No further surgery was

advised as it could endanger the child’s life. Mahesh’s father, Raj Kumar, filed a complaint before the

consumer forum alleging negligence on the part of Dr Mittal as well as the hospital. The Forum observed

that ‘informed consent’ had not been taken as the consent form neither mentioned the name of the

surgery nor its effects.Since facial paralysis had occurred after the surgery, the Forum held the surgeon

guilty of negligence. It awarded Rs 1.5 lakh as damages, Rs 30,000 as compensation for the mental

agony suffered by the father and Rs 5,000 as costs.

   Dr Mittal and the hospital appealed to the State Commission, which expressed serious doubts as to

whether there was medical negligence or deficiency on the part of the surgeon. However, since the

hospital and the surgeon had not taken proper consent from the father and had operated on the child

without explaining the nature of the surgery and the likely complications, it upheld the order of the forum

and even directed payment of 5% interest.

   Against this order, the surgeon as well as the hospital filed Revision Petitions before the National

Commission. Their main defence was that the the complainant had not alleged that the operation had

been needlessly done; that such surgeries always involve risks and complications which can even be

possibly fatal; and the consent form listed nerve injury as one of them. They claimed that everything had

been explained, and they could not be held liable for the failure to merely repeat the explanation in the

consent form. However, they had
to concede that the name of the surgery had nowhere been mentioned while taking consent.

   The National Commission observed that ‘informed consent’ means consent which is obtained after

giving all information which must be explained in comprehensible nonmedical terms,preferably in the

local language about the diagnosis;nature of treatment;risks involved; prospectus of success; prognosis

if the procedure is not performed (i.e. what can happen if the surgery is not undergone);alternative

treatment. The three ingredients of consent are information, voluntariness and capacity (i.e. the mental

capacity to understand the implications and ramifications of his or her actions).

   In keeping with the observations of the Supreme Court in the case of Samira Kohli v/s Dr Prabha

Manchanda & Anr. [I 2008 CPJ 56 (SC)] the Commission clarified that all information would imply

adequate information to enable a patient to make a balanced judgement as to whether or not he should

submit himself to a particular treatment, and would not include remote or theoretical risks which may

unnecessarily frighten a patient in refusing to give consent for the necessary treatment. Also, mere

consent for a diagnostic procedure could not be treated as consent for treatment.

   The Commission found that in the present case, the consent form did not indicate the name of the

surgery, the procedure and techniques to be followed, and the likelihood of facial paralysis as a

complication. So it held that informed consent had not been obtained. Accordingly,the commission held

that it was a clear-cut case of negligence. The compensation awarded was confirmed, and the petitions

were dismissed with further costs of Rs 10,000 payable by the hospital as well as the surgeon to the

complainant. Impact: Doctors may be busy. But they cannot forget that they are dealing with human

life. It would be prudent to spend some time to explain facts, rather than waste years in litigation which

only damages their reputation.


 2 Replies

Kiran Kumar (Lawyer)     27 May 2009

pls check the judgement i ve attached, one more i ll try to upload soon.

Attached File : 53 medical negligence.txt downloaded: 168 times

Hemant Agarwal ( Mumbai : 9820174108)     02 June 2009


Dear All,
The following appeared in "Times of India", Mumbai Edition on  June 02, 2009, page no. 10.
The following SC judgement, highlights one more aspect of “Medical Negligence”
Keep Smiling ... HemantAgarwal
Wrong blood transfusion is Medical Negligence : SC
New Delhi: When wrong blood transfusion takes place in a hospital endangering the life of a patient, the doctor cannot escape being charged under medical negligence as by no stretch of imagination could it be termed as an ‘error in professional judgment’, the Supreme Court has ruled.
The SC asked the Post-Graduate Institute of Medical Education and Research (PGIMER), Chandigarh, to pay compensation of Rs 2 lakh with a litigation cost of Rs 20,000 to the kin of the victim, who died after being administered B+ blood even though she was A+.
“Wrong blood transfusion is an error which no hospital/doctor exercising ordinary care would have made. Such an error is not an error of professional judgment but in the very nature of things a sure instance of medical negligence,” said the bench.

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