The Supreme Court On Patient's Consent In Medical Cases.

Samaira Kohli vs Dr D Manchanda

There are relatively few reported cases at the level of the Supreme Court on the question of obtaining a patient's consent. The Supreme Court's decision in Samaira Kohli vs Dr D Manchanda provides useful guidance to E&O Insurers of medical professionals in particular.

The Plaintiff, an unmarried woman of 44 years of age, visited the Defendant's clinic complaining of prolonged menstrual bleeding. D carried out an examination and advised an ultrasound test be undertaken the same day. After examining the ultrasound, D asked P to return the next day to undergo a laparoscopy under general anaesthesia, in order that D could arrive at a firm diagnosis.

When P arrived for the laparoscopy she was made to sign various forms giving D and the clinic the right to carry out the procedure. The admission card recorded that P had been admitted 'for diagnostic and operative laparoscopy'. The consent form described the procedure as ‘diagnostic and operative laparoscopy. Laparotomy may be needed'. P was put under general anaesthesia and subjected to a laparoscopic examination. While P was unconscious, D's assistant met with P's mother, who had accompanied her to the clinic. The assistant sought the consent of P's mother to perform a hysterectomy on P. P's mother agreed, and P's uterus was removed.

P sought damages for the loss of her reproductive organs, for irreversible permanent damage, for pain, suffering emotional stress and trauma.

The Supreme Court held:

Where a patient's consent is taken for a diagnostic procedure or surgery, such consent cannot be categorised as permission to perform therapeutic surgery, whether conservative or radical, except in life threatening situations.

Where a patient's consent is taken for a particular procedure, that consent cannot be used for an additional procedure.

In this case, P had her uterus removed on the ground that D considered it would be beneficial to her and was likely to avert future problems. As there was no imminent danger to the life or health of P, D should not have proceeded without her consent. D should have explained the benefits and risks of the procedure to P, the available alternatives to the recommended course of action, if any, and then taken P's informed consent.

A medical practitioner would only be permitted to withhold information in 2 situations:

A genuine emergency where the patient is temporarily incompetent or unconscious, and

Where the information would be harmful to the patient.

The Supreme Court ruled in favour of P and awarded her damages.

In addition to providing useful guidance, the case also illustrates 2 other matters for E&O Insurers to bear in mind. First, the events in question occurred in 1995. The Supreme Court's decision was handed down in 2008, so 13 years between the event and judgment. The time taken for final judgment to be handed down is longer than one would normally expect for a case of this nature, but not by much. Second, in many circumstances it would not be considered unusual or unorthodox for parental consent to be regarded as good consent.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

Mr Neeraj Tuli

Tuli & Co

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