CONSENT ________________________________________________________________________ 2

MAINTANANCE _______________________________________________________________ 2
CONSENT

In the case of Samira Kohli vs. Dr. Prabha Manchanda and Ors. I (2008) CPJ 56 (SC), the apex court held that consent
given for diagnostic and operative laparoscopy and “laporotomy if needed” does not amount to consent for a total
hysterectomy with bilateral salpingo opherectomy. The appellant was neither a minor nor mentally challenged or
incapacitated. As the patient was a competent adult, there was no question of someone else giving consent on her
behalf. The appellant was temporarily unconscious under anesthesia, and as there was no emergency. The
respondent should have waited until the appellant regained consciousness and gave proper consent. The question of
taking the patient's mother's consent does not arise in the absence of emergency. Consent given by her mother is
not a valid or real consent. The question was not about the correctness of the decision to remove reproductive
organs but failure to obtain consent for removal of the reproductive organs as performance of surgery without
taking consent amounts to an unauthorized invasion and interference with the appellant's body. The respondent
was denied the entire fee charged for the surgery and was directed to pay Rs. 25000/- as compensation for the
unauthorized surgery.

MAINTANANCE

The opinion based on teachings of one school of thought may not amount to medical negligence when there are two
responsible schools of thought. Observations of the National Commission in the case of Dr. Subramanyam and
Anr. vs. Dr. B. Krishna Rao and Anr., II (1996) CPJ 233 (NC) on the question of medical negligence are most
illuminating as it involved a complaint by a well-qualified doctor against a fellow professional who treated his wife
for an endoscopic sclerotherapy. It is relevant to note that in this case the complainant doctor alleged that the
moment the patient was admitted to the Nursing Home, there was total mismanagement to the extent of virtually
throwing her into the jaws of death solely because of negligence and improper rather wrong treatment given to her
by the first opposite party, Dr. Rao. The complainants submitted that the slipshod, callous, and negligent way in
which the patient was treated led to her death. Hon'ble Commission observed as follows: “The principles regarding
medical negligence are well settled. A doctor can be held guilty of medical negligence only when he falls short of the
standard of reasonable medical care. A doctor can not be found negligent merely because in a matter of opinion he
made an error of judgment. It is also well settled that when there are genuinely two responsible schools of thought
about management of a clinical situation the court could do no greater disservice to the community or advancement
of medical science than to place the hallmark of legality upon one form of treatment.”

PROPER MEDICLE HISTORY

When a patient does not give a proper medical history, the doctor can not be blamed for the consequences. In the
case of S. Tiwari vs. Dr. Pranav 1(1996) CPJ 301 (NC), it was alleged that a tooth was extracted without a proper test.
When bleeding continued, the doctor administered a pain killer. Though the patient had a blood pressure of 130/90,
he did not give the doctor his proper medical history. The National Commission upheld the findings of the State
Commission and dismissed the complaint on the ground that the patient did not give a correct case history and
follow-up when required.

VICARIOUS LIABILIYTY

the question of vicarious liability of the hospital for negligence on the part of the consultants, the Hon'ble
Commission relying on the judgment in Basant Seth V Regency Hospital O P No.99 of 1994 rejected the contention of
the hospital and held that the hospital is vicariously liable for any wrong claiming on the part of consultants.
CONSUMER PROTECTION ACT

Briefly stated, a “consumer” who hires or avails of any “services” for consideration is
entitled under the CPA to sue for any “deficiency in service” (not being services
rendered free of cost or of a personal nature) and claim compensation. “Deficiency”
is usually construed to mean any fault, imperfection, shortcoming or inadequacy in
the quality, nature and manner of performance of any service.

Until 1996, legal proceedings against doctors for malpractice were relatively few.
However, the decision of the Supreme Court of India in Indian Medical Association
v. V. P. Shantha (AIR 1996 SC 550) brought doctors and hospitals under the purview
of the CPA. After this judgment, doctors and hospitals were allowed to be sued under
the CPA for any ”deficiency in service.”

Filing actions under the CPA

The aggrieved person would have recourse to the specially created consumer
disputes redressal fora established under the CPA to establish any malpractice of a
doctor or hospital and claim compensation.

Depending on the value of the services and/or the compensation claimed, the
aggrieved person would have to approach (i) the District Consumer Dispute
Redressal Forum (pecuniary limit of up to INR 2,000,000 or approx. USD 40,000);
(ii) the Consumer Disputes Redressal Commission of each Indian State or province
(the “State Commission”) (which enjoys pecuniary limit above INR 2,000,000 but up
to INR 10,000,000 i.e., between approx. USD 40,000 to 200,000); (iii) or the
National Consumer Disputes Redressal Commission, New Delhi (the “National
Commission”) (pecuniary limit of any amount above INR 10,000,000 or approx.
USD 200,000).

In terms of hierarchy, the State Commission is empowered to hear appeals against

orders of the District Forum and the National Commission hears appeals from the
State Commission. Appeals from the National Commission reside with India’s apex
court, the Supreme Court.

Principles of Negligence

To determine deficiency in service of the doctor or hospital, the same tests applied to
determine the tort law principle of “negligence” are applicable under the CPA.
Accordingly, as per the Supreme Court’s decision in Jacob Mathew v. State of
Punjab[(2005) 6 SCC 422)] the aggrieved person has to prove that there existed (i) a
duty of care (between patient and the doctor), (ii) there was breach of such duty and
(iii) but for the said breach, no injury would have been suffered.
Duty of care and standard of care

In the case of Laxman Balkrishna Joshi v. Trimbak Bapu Godbole (AIR 1969 SC
128), the Supreme Court held that a doctor owes a patient certain duties such as a
duty of care in deciding what treatment to give and a duty of care in the
administration of that treatment, among others. Accordingly, under Indian laws, a
doctor is duty-bound to treat a patient with a reasonable degree of skill, care and
knowledge.

Breach of duty and causation

Having established the duty and standard of care, the aggrieved patient next has to
prove that there was a breach of the applicable duty and that the doctor had fallen
below the accepted standard of care. The breach of the duty should then be linked to
‘causation’, i.e. a link should be established between the act of negligence and the
injury suffered by the patient.

Indian courts have applied the ‘but for’ test in order to establish causation. In Geetu
Sapra v. B. L. Kapoor Memorial Hospital [(2006) 3 CPJ 1], the ‘but-for’ test was
applied to establish that if not for the defective equipment in the hospital, the patient
would have not suffered the injury. In Samira Kohli v. Prabha Manchanda [(2008)
2 SCC 1] which deals with “informed consent,” the Supreme Court held that a doctor
can be held negligent if proper consent is not taken and the failure to take consent is
sufficient to determine causation.

Liability of Hospitals

In India, corporate hospitals (as opposed to government or village hospitals, which

are unlikely to attract medical tourism) have been held liable by applying the tort law
principle of ”vicarious liability” for any malpractice or ”deficiency in service” on the
part of the doctors or nurses employed in such hospitals. Indian courts have ruled
that a hospital cannot escape liability merely by arguing that it only provides
infrastructural facilities and services of nursing and support staff to the consultant
doctor and that the hospital cannot perform or recommend an operation on its own
[Rekha Gupta v. Bombay Hospital Trust and Another (2003) 2 CPJ 160)].

In addition to holding hospitals liable for acts and omissions of doctors and nursing
staffs, Indian courts have also held the hospital liable if it employs unqualified
doctors or nurses [Professor P. N. Thakur v. Hans Charitable Hospital (2007) 3 CPJ
340)]. Further, hospitals have been held liable for ‘deficiency in service’ under the
CPA for
Theoretically, an aggrieved person can file [an action either under the CPA or under tort laws
alleging negligence]. However, since bringing the medical profession under the CPA in 1996,
Indian courts have frowned upon civil suits filed in regular courts under tort laws alleging
negligence by doctors and have encouraged actions to be filed under the CPA.
samira v prabha manchanda summary