Holding

Performing radical surgery without the patient's informed consent constitutes a tortious act of battery and a deficiency in service, warranting compensation despite any medical benefit.

Summary

The appellant, a 44‑year‑old unmarried woman, was admitted for a diagnostic laparoscopy but, while under general anaesthesia, the respondent doctors performed an abdominal hysterectomy and bilateral salpingo‑oophorectomy without her informed consent. The National Consumer Disputes Redressal Commission dismissed her claim for compensation, holding that the surgeon’s discretion sufficed. The Supreme Court examined the legal requirements of consent, distinguishing "real" or informed consent from implied consent and held that consent for a diagnostic procedure cannot be construed as consent for therapeutic organ removal absent an emergency. It found that the mother’s consent was invalid for a competent adult and that the respondent’s claim of emergency was unsupported. Consequently, the surgery was deemed an unauthorized invasion of the body amounting to battery and deficiency in service, and the Court awarded modest compensation while denying the surgical fee.

Issues considered

Whether informed consent is required for surgical removal of reproductive organs.
Whether consent for a diagnostic procedure can be extended to authorize therapeutic surgery.
Whether the appellant’s mother could validly give consent on her behalf.
Whether the respondent’s claim of emergency justified the unauthorized surgery.
Whether the respondent’s conduct amounts to negligence/battery and a deficiency in service under the Consumer Protection Act.

Legislation cited

Consumer Protection Act, 1986s. 21
Indian Medical Council Act, 1956s. 33

Subjects

informed consentmedical negligencebatterydeficiency in serviceConsumer Protection Acthysterectomylaparoscopyendometriosismother's consentmedical lawBolam testCanterbury test

Judgment

[2008] 1 S.C.R. 719

SAMIRA KOHLI A
j>
v.
DR. PRABHA MANCHANDA & ANR.
(C.A. No. 1949 of 2004)
JANUARY 16, 2008
8
(B.N. AGRAWAL, P.P. NAOLEKAR AND
R.V. RAVEENDRAN, JJ.)
_,_ >
Consumer Protection Act, 1986:
Medical Negligence: c
Deficiency in service - Doctor performing radical surgery
without obtaining consent from patient resulting in removal of
her reproductive organs - Compensation - Complaint rejected
by National Consumer Commission - Correctness of - Held: D
Right of patient with regard to his/her body inviolable - It would
be unreasonable for a doctor to start particular treatment!
surgery without the consent of patient unless it was considered
necessary to save life/preserve health of the patient- Consent
of patient for diagnostic procedure/surgery cannot be construed
as permission to perform therapeutic surgery - Appellant-
E
. victim admitted in the clinic of respondent only for diagnostic
purposes - Before the victim regained consciousness, radical
surgery performed resulting in removal of her uterus and
ovaries - Under the circumstances, it cannot be said that she
was informed before performing the surgery- When the patient F
was still at the diagnosis state, her mother's consent for radical
surgery was no consent in the eyes of law- Moreover, consent
by mother cannot be treated as valid/real consent - National
Commission failed to notice that the question was not about
the correctness of the decision to remove uterus and ovaries G
but failure to obtain consent for removal of the organs -
-t Laparoscopic examination revealed that the victim was
suffering from endometriosis - It could be treated either by
conservative treatment or by hysterectomy - Moreover,
719 H
720 SUPREME COURT REPORTS [2008] 1 S.C.R.

A appropriateness of treatment procedure does not make the '"":
treatment legal in the absence of consent therefor -
Performance of such surgery without consent of the patient
was an unauthorized invasion and interference with the body
of the victim, hence, a tortuous act of assault and battery
B amounting to deficiency in service - But, in view of mitigating
circumstances, interest of justice would be served by denying
the respondent fee charged for surgery and by granting
compensation of Rs. 25, 0001- to victim for unauthorizedly
,...
~
performing surgery - Tort - Battery - Negligence -
c Compensation.
Medical Profession - Catch in all clauses - Scope of.
Words and Phrases:
'consent', 'real consent' and 'unfound consent' - Meaning
D of.
Appellant, an unmarried woman, aged 44 years
visited the clinic of first respondent for an ultrasound test. r
The test was conducted and, on the basis of the
ultrasound report, the respondent allegedly informed her
E that she was suffering from fibroids and for further
confirmation a laproscopic test was required to be
conducted. On the next day, when she went to the clinic
for a diagnostic laproscopy, allegedly her signatures on
blank printed forms were obtained by an Assistant doctor
F of respondent without giving her opportunity to read the
contents. When she was under general anesthesia,
respondent rushed out of the operation theater and told
her aged mother that the patient had started bleeding
profusely and in order to save her life, extensive surgery
G need to be performed and her signatures were obtained
on some papers without waiting the appellant to regain
j ·~
consciousness and radical surgery was performed on
her, resulting in removal of her reproductive organs. When
she protested, the respondent rudely responded.
H According to the appellant, she was going to marry within
SAMIRA KOHLI v. DR. PRABHA MANCHANDA & ANR. 721

a month, therefore, she would have refused consent for A
removal of her reproductive organs and would have opted
for constructive treatment, had she been informed about
the surgery. Appellant lodged a complaint in the Police
Station against the respondent for their negligence and
unauthorizedly removing her reproductive organs. The B
appellant also filed a complaint before the National
Consumer Commission claiming a compensation of Rs.
25 lakhs from the respondent for negligently treating her
resulting in loss of her reproductive organs and
consequential loss of opportunity to become a mother, c
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. The complaint was
0
dismissed by the Commission. Hence the present appeal.
The questions which arose for determination in this
appeal were as to whether informed consent of a patient
is necessary for surgical procedure involving removal of
reproductive organs; as to whether consent given for E
diagnostic surgery could be construed as consent for
• performing additional/further surgical procedure, either
as conservative treatment or as radical treatment, without
the specific consent for such additional or further surgery;
as to whether there was consent by the appellant, for the F
abdominal hysterectomy and Bilateral Salpingo-
oopherectomy performed by the respondent; as to
whether the respondent had falsely invented a case that
appellant was suffering from endometriosis to explain the
unauthorized and unwarranted removal of uterus and G
ovaries; and as to whether such radical surgery was either
to cover-up negligence in conducting diagnostic
laparoscopy or to claim a higher fee and also even if
appellant was suffering from endometriosis; as to whether
the respondent ought to have resorted to conservative
H
722 SUPREME COURT REPORTS [2008] 1 S.C.R.

A treatment/surgery instead of performing radical surgery;
and as to whether the Respondent is guilty of the tortuous
act of negligence/battery amounting to deficiency in
service, and consequently liable to pay damages to the
appellant.
B Allowing the appeal, the Court
HELD: 1.1 Consent in the context of a doctor-patient
relationship, means the grant of permission by the patient
for an act to be carried out by the doctor, such as a
c diagnostic, surgical or therapeutic procedure. Consent
can be implied in some circumstances from the action of
the patient. (Para - 14) (742-F]
1.2 There is, however, a significant difference in the
nature of express consent of the patient, known as 'real
D consent' in UK and as 'informed consent' in America. In
UK, the elements of consent are defined with reference
to the patient and a consent is considered to be valid and
'real' when (i) the patient gives it voluntarily without any
coercion; (ii) the patient has the capacity and competence
E to give consent; and (iii) the patient has the minimum of
adequate level of information about the nature of the
procedure to which he is consenting to. On the other
hand, the concept of 'informed consent' developed by
American courts, while retaining the basic requirements
F consent, shifts the emphasis to the doctor's duty to
disclose the necessary information to the patient to
secure his consent. (Para - 14) (742-G & H; 743-A & B]
Taber's Cyclopedic Medical Dictionary and Principles
of Medical Law published by Oxford University Press --
G Second Edition, edited by Andrew Grubb, Page 133 -
referred to. 1 ~
Canterbury v. Spence - 1972 [464] Federal Reporter
2d. 772; Schoendorffvs. Society of New York Hospital- (1914)
H 211 NY 125: and Re: F. 1939(2) All ER 545 - referred to.
SAMIRA KOHLI v. DR. PRABHA MANCHANDA & ANR. 723
l 1.3 The principle of necessity by which the doctor is A
permitted to perform further or additional procedure
(unauthorized) is restricted to cases where the patient is
temporarily incompetent (being unconscious), to permit
the procedure delaying of which would be unreasonable
because of the imminent danger to the life or health of the B
patient. (Para -16) [746-B & CJ
Murray vs. McMurchy - 1949 (2) DLR 442 and Marshell
vs. Curry - 1933 (3) DLR 260 - referred to.
1.4 Howsoever practical or convenient the reasons c
may be, they are not relevant. What is relevant and of
importance is the inviolable nature of the patient's right
in regard to his body and his right to decide whether he
should undergo the particular treatment or surgery or not.
Unless the unauthorized additional or further procedure
0
is necessary in order to save the life or preserve the health
of the patient and it would be unreasonable (as contrasted
from being merely inconvenient) to delay the further
procedure until the patient regains consciousness and
takes a decision, a doctor cannot perform such procedure
without the consent of the patient. (Para - 17) [7 46-F & G] E
2.1 In Medical Law, where a surgeon is consulted by
a patient, and consent of the patient is taken for diagnostic
procedure/surgery, such consent cannot be considered
as authorisation or permission to perform therapeutic F
surgery either conservative or radical (except in life
threatening or emergent situations). Similarly where the
consent by the patient is for a particular operative surgery,
it cannot be treated as consent for an unauthorized
additional procedure involving removal of an organ, only G
on the ground that such removal is beneficial to the patient
or is likely to prevent some danger developing in future,
where there is no imminent danger to the life or health of
the patient. (Para - 19) [7 48-D, E & F]
Bowater v. Rowley Regis Corporation - [1944] 1 KB 476 H
724 SUPREME COURT REPORTS [2008) 1 S.C.R.

A and Sa/go vs. Leland Stanford 154 Cal. App. 2d.560 (1957) - 1~
referred to.
2.2 A risk is material 'when a reasonable person, in
what the physician knows or should know to be the
patient's position, would be likely to attach significance
8 to the risk or cluster of risks in deciding whether or not to
forego the proposed therapy'. The doctor, therefore, is
required to communicate all inherent and potential
hazards of the proposed treatment, the alternatives to that
treatment, if any, and the likely effect if the patient remained
C untreated. This stringent standard of disclosure was
subjected to only two exceptions : (i) where there was a
genuine emergency, e.g. the patient was unconscious;
and (ii) where the information would be harmful to the
patient. The stringent standards, as above, regarding
D disclosure laid down in Canterbury, as necessary to
secure an informed consent of the patient, was not
accepted in the English ccurts. In England, standard
applicable is popularly known as the Bolam Test as laid
down in Bolam v. Friern Hospital Management
E Committee.* (Paras - 21 & 22) [750-H; 751-A, B & DJ
*Bo/am v. Friern Hospital Management Committee -
[1957) 2 All.E.R. 118; Hunter v. Hanley (1955 SC 200) and
Sidaway v. Beth/em Royal Hospital Governors & Ors. [1985)
1 All ER 643 - referred to.
F
2.3 In India, Bolam test has broadly been accepted
as the general rule. The stark reality is that for a vast
majority in the country, the concepts of informed consent
or any form of consent, and choice in treatment, have no
G meaning or relevance. (Para - 25, 26) [755-G; 757-F]
Achutrao Haribhau Khodwa vs. State of Maharastra -
1996 (2) SCC 634, Vinitha Ashok vs. Lakshmi Hospital - 2001
(8) SCC 731 and Indian Medical Association vs. V P Shantha
- 1995 (6) sec 651 - relied on.
H
SAMIRA KOHLI v. DR. PRABHA MANCHANDA & ANR. 725

3.1 Of course, some doctors, both in private practice A
or in government service, look at patients not as persons
who should be relieved from pain and suffering by prompt
and proper treatment at an affordable cost, but as potential
income-providers/customers who can be exploited by
prolonged or radical diagnostic and treatment B
procedures. It is this minority who brihg a bad name to
the entire profession. (Para - 28) [758-F & G]
3.2 Every Doctor wants to be a specialist. The
proliferation of specialists and super specialists, have
exhausted many a patient both financially and physically, C
by having to move from doctor to doctor, in search of the
appropriate specialist who can identify the problem and
provide treatment. What used to be competent treatment
by one General Practitioner has now become multi-
pronged treatment by several specialists. (Para - 29) [759- o
C &D]
4.1 Law stepping in to provide remedy for negligence
or deficiency in service by medical practitioners, has its
own twin adverse effects. More and more private doctors
and hospitals have, of necessity, started playing it safe, E
by subjecting or requiring the patients tp undergo various
costly diagnostic procedures and tests to avoid any
allegations of negligence, even though they might have
already identified the ailment with reference to the
symptoms and medical history with 90% certainly, by their F
knowledge and experience. (Para - 29) [759-E & F]
4.2 More and more doctors particularly surgeons in
private practice are forced to cover themselves by taking
out insurance, the cost of which is also ultimately passed
on to the patient, by way of a higher fee. As a G
consequence, it is now common that a comparatively
simple ailment, which earlier used to be treated at the cost
of a few rupees by consulting a single doctor, requires an
expense of several hundred or thousands on account of
four factors : (i) commercialization of medical treatment; H
726 SUPREME COURT REPORTS [2008] 1 S.C.R.

A (ii) increase in specialists as contrasted from general
practitioners and the need for consulting more than one
doctor; (iii) varied diagnostic and treatment procedures
at high cost; and (iv) need for doctors to have insurance
cover. The obvious, may be na"ive, answer to unwarranted
B diagnostic procedures and treatment and prohibitive cost
of treatment, is an increase in the participation of health
care by the state and charitable institutions. An
enlightened and committed medical profession can also
provide a better alternative. (Para - 29) [759-F, G & H; 760-
C A&B] -
4.3 A doctor cannot be held negligent either in regard
to diagnosis or treatment or in disclosing the risks
involved in a particular surgical procedure or treatment,
if the doctor has acted with normal care, in accordance
o with a recognised practices accepted as proper by a
responsible body of medical men skilled in that particular
field, even though there may be a body of opinion that
takes a contrary view. Where there are more than one
recognized school of established medical practice, it is
E not negligence for a doctor to follow any one of those
practices, in preference to the others. (Para - 31) [761-C
& D]
4.4 Principles relating to consent as enunciated are
summarized as follows: (i) A doctor has to seek and
F secure the consent of the patient before commencing a
'treatment'. The consent so obtained should be real and
valid; the consent should be voluntary; and the consent
should be on the basis of adequate information
concerning the nature of the treatment procedure, so that
G he knows what is consenting to. (ii) A balance should be
maintained 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

-
H diagnostic procedure cannot be considered as consent
SAMIRA KOHLI v. DR. PRABHA MANCHANDA & ANR. 727

i• for therapeutic treatment. Consent given for a specific A
treatment procedure will not be valid for conducting some
other treatment procedure; (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 and an B
additional or further procedure that may become

"", necessary during the course of surgery; and (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
c
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. (Para - 32) [751-E, F & G; 752-C, D, E & H; D
i 753-A, B, C, & DJ
4.5 The 'real consent' concept evolved in Bolam and
Sidaway have been preferred in preference to the
'reasonably prudent patient test' in Canterbury, having
E
regard to the ground realities in medical and health-care
in India. But if medical practitioners and private hospitals
become more and more commercialized, and if there is a
corresponding increase in the awareness of patient's
~
rights among the public, inevitably, a day may come when
it may be shifted towards Canterbury. (Para - 33) [763-F, F
G & HJ
Canterbury vs. Spenee, 1972 (464); Bo/am vs. Friern
· Hospital Management Committee (1957) 2 All.E.R. 118; Reibl
v. Hughes (1980) 114 DLR (3d.) 1 and Rogers v. Whittaker - G
~ r- 1992 (109) ALR 625 and Sidaway v. Beth/em Royal Hospital
Governors & Ors. [1985J 1 All ER 643 - referred to.
5.1 In the present case, the Admission and Discharge
card maintained and produced by the respondent showed
that the appellant was admitted "for diagnostic and H
728 SUPREME COURT REPORTS [2008] 1 S.C.R.

A operative laparoscopy on 10.5.1995". The CPD card dated
9.5.1995 does notrefer to endometriosis, which is also
admitted by the respondent in her cross-examination. If
fact, the respondent also admitted that the confirmation
of diagnosis is possible only after laparoscopy test. (Para
B - 38) [768-B & CJ
'Gynaecology' (second edition) by Robert W Shah -
referred to.
5.2 Notice dated 5.6.1995 served by respondent to
C the appellant makes it clear that the appellant was not
admitted for conducting hysterectomy or bilateral
salpingo-oopherectomy, but only for diagnostic
purposes. However, a wrong statement of fact made in
the said notice. It states that on 10.5.1995 after conducting
a laparoscopic examination, the video-recording of the
D lesion was shown to appellant's mother, and the
respondent informed the appellant and her mother that
conservative surgery would be futile and removal of
uterus and more extensive surgery was.preferable having
regard to the more extensive lesion and destruction of
E the function of the tubes. But this statement cannot be
true. The extensive nature of lesion and destruction of
the functions obviously became evident only after
diagnostic laparoscopy. But after diagnostic laparoscopy
and the video recording of the Lesion, there was no
F occasion for respondent to inform anything to appellant.
When the laparoscopy and video recording was made,
the appellant was already unconscious. Before she
regained consciousness, AH-BSO Surgery was performed
removing her uterus and ovaries. Therefore, the appellant
G could not have been informed on 10.5.1995 that
conservative 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 not arise. (Para - 39) [768-F; 769-C, D, E, F & G]
H 5.3 The consent form shows that the appellant gave
SAMIRA KOHLI v. DR. PRABHA MANCHANPA & ANR. 729

iY . consent only for diagnostic operative laparoscopy, and A
laparotomy if needed. Laparotomy is a surgical procedure
to open up the abdomen or an abdominal operation. It
refers to the operation performed to examine the
abdominal organs and aid diagnosis. Many a time, after
the diagnosis is made and the problem is identified it may B
be fixed during the laparotomy itself. In other cases, a
subsequent surgery may be required. laparotomy can no
doubt be either a diagnostic or therapeutic. In the former,
more often referred to as the exploratory laparotomy, an
exercise is undertaken to identify the nature of the disease. C
In the latter, a therapeutic laparotomy is conducted after
the cause has been identified. When a specific operation
say hysterectomy or salpingo-oopherectomy is planned,
laparotomy is merely the first step of the procedure,
followed by the actual specific operation. (Para - 40) [770-
A, 8, C, & DJ D

i 5.4 On the other hand, hysterectomy and slapingo-
oopherectomy follow laparotomy and are not themselves
referred to as laparotomy. Therefore, when the consent
form refers to diagnostic and operative laparoscopy and E
"laparotomy if needed", it refers to a consent for a definite
laparoscopy with a contingent laparotomy if needed. It
does not amount to consent for AH-BSO surgery removing
the uterus and ovaries/fallopian tubes. If the appellant had
consented for a AH-BSO then the consent form would
~ have given consent for "diagnostic and operative F
laparoscopy. Laparotomy, hysterectomy and bilateral
salpingo-oopherectomy, if needed." Para - 40) [770-E, F
&G]
5.5 On the documentary evidence and the
histopathology. report the appellant also raised an issue G
.~ as to whether appellant was suffering from endometriosis
at all. She points out that ultra-sound did not disclose
endometriosis and the histopathology report does not·
confirm endometriosis. The respective experts examined
on either side have expressed divergent views as to H
730 SUPREME COURT REPORTS [2008) 1 S. C.R.

A whether appellant was suffering from endometriosis. It
may not be necessary to give a definite finding on this
aspect, as the real question for consideration is whether
appellant gave consent for hysterectomy and bilateral
salpingo-oopherectomy and not whether appellant was
B suffering from endometriosis. (Para-41) [770-H; 771-A & BJ
5.6 In view of the evidence of expert witness, the
respondent's contention that 'Laparotomy' refers to and
includes hystectomy and bilateral salpingo-
oopherectomy cannot be accepted. The evidence of
C respondent's expert witness on this question is
evasive and clearly implies laparotomy is not the same
as hysterectomy. (Para - 42) [771-E & G]
5.7 In medical circles, it is well recognized that a catch
all clause giving the surgeon permission to do anything
D necessary does not give roving authority to remove
whatever he fancies may be for the good of the patient.
(Para - 43) [772-E & F]
5.8 When the oral and documentary evidence are
considered in the light of the legal position, it is clear that
E there was no consent by the appellant for conducting
hysterectomy and bilateral salpingo-oopherectomy. (Para
- 44) [772-G]
5.9 The appellant was neither a minor, nor mentally
F challenged, nor incapacitated. When a patient is a
competent adult, there is no question of someone else ~
giving consent on her behalf. There was no medical
emergency during surgery. The appellan.t was only
temporarily unconscious, undergoing only a diagnostic
procedure by way of laparoscopy. The respondent ought
G to have waited till the appellant regained consciousness,
discussed the result of the laparoscopic examination and 1 _
then taken her consent for the removal of her uterus and
ovaries. In the absence of an emergency and as the matter
was still at the stage of diagnosis, the question of taking
H her mother's consent for radical surgery did not arise. ·
SAMIRA KOHLI v. DR. PRABHA MANCHANDA & ANR. 731

Therefore, consent by the mother of the appellant cannot A
be treated as valid or real consent. Further a consent for
hysterectomy, is not a consent for bilateral salpingo -
ooperectomy. (Para - 45) [773-A, B, C & D]
5.10 If the term 'laparotomy' is to include
hysterectomy and salpingo-oopherectomy as contended B
by the respondent and there was a specific consent by
the appellant in the consent form signed by her on
10.5.1995, there was absolutely no need for the
respondent to send word through her assistant to get the
consent of appellant's mother for performing C
hysterectomy under general anesthesia. The very fact that
· such consent was sought from appellant's mother for
conducting hysterectomy is a clear indication that there
was no prior consent for hysterectomy by the appellant.
(Para - 46) [773-F & G] D
6.1 National Consumer Commission, without any
legal basis, has concluded that "the informed choice has
to be left to the operating surgeon depending on his/her
discretion, after assessing the damage to the internal
organs, but subject to his/her exercising care and E
caution". It also erred in construing the words "such
medical treatment as is considered necessary for me
for ....... " in the consent form as including surgical
treatment by way of removal of uterus and ovaries. The
Commission has also observed : "whether the uterus F
should have been removed or not or some other surgical
procedure should have been followed are matters to be
left to the discretion of the performing surgeon, as long
as the surgeon does the work with adequate care and
caution". This proceeds on the erroneous assumption G
that where the surgeon has shown adequate care and
caution in performing the surgery, the consent of the
patient for removal of an organ is unnecessary. The
Commission failed to notice that the question was not
about the correctness of the decision to remove the uterus
and ovaries, but the failure to obtain the consent for H
732 SUPREME COURT REPORTS (2008] 1 S.C.R.

A removal of the important organs. (Para - 48) [775-B, C, D
& E]
6.2 Suffice it to say that for a woman who has not
married and not yet reached menopause, the reproductive
organs are certainly important organs. There is also no
B dispute that removal of ovaries leads to abrupt
menopause causing hormonal imbalance and
consequential adverse effects. (Para - 48) [775-G & H] '
6.3 The evidence demonstrates that on laparoscopic
C examination, respondent was satisfied that appellant was
suffering from endometriosis. The evidence also
demonstrates that there is more than one way of treating
endometriosis. While one view favours conservative
treatment with hysterectomy as a last resort, the other
favours hysterectomy as a complete and immediate cure.
D However, the correctness or appropriateness of the
treatment procedure, does not make the treatment legal,
in the absence of consent for the treatment. (Para - 52)
[778-C, D & F]
6.4 The evidence shows that the respondent having
E found evidence of endometriosis, proceeded on the basis
that removal of uterus and ovaries was beneficial to the
health of the appellant having regard to the age of the
appellant and condition of the appellant to provide a
permanent cure to her ailment, though not authorized to
F do so. On an overall consideration of the evidence, the
claim of appellant that the respondent falsely invented a
case is not accepted. (Para - 53) [779~A, B & C]
6.5 In the absence of consent by the appellant for
performing hysterectomy and salpingo-oopherectomy,
G performance of such surgery was an unauthorized
invasion and interference with appellant's body which
amounted to a tortuous act of assault and battery and
therefore a deficiency in service. But as noticed, there are
several mitigating circumstances. The respondent did it
H in the interest of the appellant. As the appellant was
SAMIRA KOHLI v. DR. PRABHA MANCHANDA & ANR. 733

already 44 years old and was having serious menstrual A
problems, the respondent thought that by surgical
removal of uterus and ovaries she was providing
permanent relief. It is also possible that the respondent
thought that the appellant may approve the additional
surgical procedure when she regained' consciousness B
and the consent by appellant's mother gave her authority.
_.. • This is a case of respondent acting in excess of consent
but in good faith and for the benefit of the appellant.
Though the appellant has alleged that she had to undergo
Hormone Therapy, no other serious repercussions are
made out as a result of the removal. The appellant was
c
already fast approaching the age of menopause and in
all probability required such Hormone Therapy. Even
assuming that AH-BSO surgery was not immediately
required, there was a reasonable certainty that she would
have ultimately required the said treatment for a complete D
cure. On the facts and circumstances, interests of justice
would be served if the respondent is denied the entire fee
charged for the surgery and in addition, directed to pay
Rs.25,000 as compensation for the unauthorized AH-BSO
surgery to the appellant. If the respondent has already E
received the bill amount or any part thereof from the
appellant, he shall refund the same to the appellant with
interest at the rate of 10% per annum from the date of
payment till the date of re-payment. (Paras - 54 & 55) [779-
D, E, F, G & H; 780-A, B, C & D] F
CIVILAPPELLATE JURISDICTION: Civil Appeal No.1949
of 2004.
From the final Judgment and Order dated 19.11.2003 of
_, the National Consumer Disputes Redressal Commission, New
Delhi in O.P. No. 12of1996.
G

Prastiant Bhushan, Rukhsana Choudhary and Sumita
Hazarika for the Appellant.
Aman Lekhi, Meenakshi Lekhi, Rajan Chourasia, Jaspreet
S. Rai, Rakesh Kumar, Rohit Nagpal, Harish Pandey, Abhijat H
734 SUPREME COURT REPORTS [2008] 1 S.C.R.

'4-
A Das, Rameshwar Prasad Goyal, Rajesh Kumar, Ajay Majithia
and Dr. Kailash Chand for the Respondents.
The Judgment of the Court was delivered by
RAVEENDRAN, J. This appeal is filed against the order
B dated 19.11.2003 passed by the National Consumer Disputes
Redressal Commission (for short 'Commission') rejecting the
appellant's complaint (O.P. No.12/1996) under Section 21 of
the Consumer Protection Act, 1986 ('Act' for short).
'"• •
Undisputed facts
c
2. On 9.5.1995, the appellant, an unmarried woman aged
44 years, visited the clinic of the first respondent (for short 'the
respondent') complaining of prolonged menstrual bleeding for
nine days. The respondent examined and advised her to undergo
an ultrasound test on the same day. After examining the report,
D
the respondent had a discussion with appellant and advised
her to come on the next day (10.5.1995) for a laparoscopy test
under general anesthesia, for making an affirmative diagnosis.
3. Accordingly, on 10.5.1995, the appellant went to the
E respondent's clinic with her mother. On admission, the
appellant's signatures were taken on (i) admission and
discharge card; (ii) consent form for hospital admission and
medical treatment; and (iii) consent form for surgery. The
Admission Card showed that admission was "for diagnostic
and operative laparoscopy on 10.5.1995". The consent form ...
F
for surgery filled by Dr. Lata Rangan (respondent's assistant)
described the procedure to be undergone by the appellant as
"diagnostic and operative laparoscopy. Laparotomy may be
needed". Thereafter, appellant was put under general anesthesia
and subjected to a laparoscopic examination. When the appellant
G was still unconscious, Dr. Lata Rengen, who was assisting the
respondent, came out of the Operation Theatre and took the
t-. '
consent of appellant's mother, who was waiting outside, for
performing hysterectomy under general anesthesia. Thereafter.
the Respondent performed a abdominal hystecrectomy (removal
H of uterus) and bilateral salpingo-oopherectomy (removal of
-
SAMIRA KOHLI v. DR. PRABHA MANCHANDA & ANR. 735
[RAVEENDRAN, J.]
y ovaries and fallopian tubes). The appellant left the respondent's A
clinic on 15.5.1995 without settling the bill.
4. On 23.5.1995, the respondent lodged a complaint with
the Police alleging that on 15.5.1995, the Appellant's friend
(Commander Zutshi) had abused and threatened her
(respondent) and that against medical advice, he got the B

• ~
• appellant dis.charged without clearing the bill. The appellant also
lodged a complaint against the respondent on 31.5.1995,
alleging negligence and unauthorized removal of her
reproductive organs. The first respondent issued a legal notice
dated 5.6.1995 demanding Rs.39,325/- for professional c
services. The appellant sent a reply dated 12.7.1995. There
was a rejoinder dated 18. 7 .1995 from the respondent and a
further reply dated 11.9.1995 from the appellant. On 19.1.1996
the appellant filed a complaint before the Commission claiming
a compensation of Rs.25 lakhs from the Respondent. The D
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 consent, when she was under
general anesthesia for a Laparascopic test, was unlawful,
unauthorized and unwarranted; that on account of the removal E
of her reproductive organs, she had suffered premature
menopause necessitating a prolonged medical treatment and
a Harmone Replacement Therapy (HRT) course, apart from
making her vulnerable to health problems by way of side effects.
The compensation claimed was for the loss of reproductive F
organs and consequential 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
G
..- t to health hazards .
--<
I
5. During the pendency of the complaint, at the instance of
the respondent, her insurer- New India Assurance Co. Ltd, was
impleaded as the second respondent. Parties led evidence -
both oral and documentary, Appellant examined an expert H
736 SUPREME COURT REPORTS [2008] 1 S.C.R.

~
A witness (Dr. Puneet Bedi, Obstetrician & Gynaecologist), her
mother (Sumi Kohli) and herself. 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
B (Doctor who assisted the Respondent) and Dr. Shiela Mehra
(Anaesthetist for the surgery). The medical records and notices
exchanged were produced as evidence. After hearing ' ...
~
arguments, the Commission dismissed the complaint by order
dated 19.11.2003. The Commission held : (a) the appellant
c voluntarily visited the respondent's clinic for treatment and
consented 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. was necessitated as the appellant was found
to be suffering from endometriosis (Grade IV), and if they had
D
not been removed, there was likelihood of the lesion extending
to the intestines and bladder and damaging them. Feeling
aggrieved, the appellant has filed this appeal.
The appellant's version :
E 6. The appellant consulted respondent on 9.5.1995.
Respondent wanted an ultra-sound test to be done on the same
day. 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
F laparoscopic test the next day. The respondent informed her ""
that the test was a minor procedure involving a small puncture
for examination under general anesthesia. The respondent
informed her that the costs of laparoscopic test, hospitalization,
and anesthetists charges would be around Rs.8000 to 9,000.
G Respondent spent hardly 4 to 5 minutes with her and there was·
no discussion about the nature of treatment. Respondent merely } -
told her that she will discuss the line of treatment, after the
laparoscopic test. On 10.5.1995, she went to the clinic only for
a diagnostic laparoscopy. Her signature was taken on some
H blank printed forms without giving her an opportunity to read the
SAMIRA KOHLI v. DR. PRABHA MANCHANDA & ANR. 737
[RAVEENDRAN, J.]

contents. As only a diagnostic procedure by way of a A
laparoscopic test was to be conducted, there was no discussion,
even on 10.5.1995, with regard to any proposed treatment. As
she was intending to marry within a month and start a family,
she would have refused consent for removal of her reproductive
organs and would have opted for conservative treatment, had B
she been informed about any proposed surgery for removal of
her reproductive organs.
7. When the appellant was under general anaesthesia,
respondent rushed out of the operation theatre and told
appellant's mother that she had started bleeding profusely and C
gave an impression that the only way to save her life was by
performing an extensive surgery. Appellant's aged mother was
made to believe that there was a life threatening situation, and
her signature was taken to some paper. Respondent did not
choose to wait till appellant regained consciousness, to discuss D
about the findings of the laparoscopic test and take her consent
for treatment. The appellant was kept in the dark about the radical
surgery performed on her. She came to know about it, only on
14.5.1995 when respondent's son casually informed her about
the removal of her reproductive organs. When she asked the E
respondent as to why there should be profuse bleeding during
a Laparoscopic test (as informed to appellant's mother) and
why her reproductive organs were removed in such haste without
informing her, without her consent, and without affording her an
opportunity to consider other options or seek other opinion, the F
respondent answered rudely that due to her age, conception
was not possible, and therefore, the removal of her reproductive
organs did not make any difference.
8. As she was admitted only for a diagnostic procedure,
namely a laparoscopy test, and as she had given consent only G
for a laparoscopy test and as her mother's consent for
... * conducting hysterectomy had been obtained by
misrepresentation, there was no valid consent for the radical
surgery. The respondent also tried to cover up her unwarranted/
negligent act by falsely alleging that the appellant was suffering H
738 SUPREME COURT REPORTS [2008] 1 S.C.R.

A from endometriosis. The respondent was guilty of two distinct
acts of negligence: the first was the failure to take her consent,
.,.
much less an informed consent, for the radical surgery involving
removal of reproductive organs; and the second was the failure
to exhaust conservative treatment before resorting to radical
B surgery, particularly when such drastic irreversible surgical
procedure was not warranted in her case. The respondent did
not inform the appellant, of the possible risks, side effects and
complications associated with such surgery, before undertaking • .. ~
the surgical procedure. Such surgery without her consent was
c also in violation of medical Rules and ethics. Removal of her
reproductive organs also resulted in a severe physical
impairment, and necessitated prolonged further treatment. The
respondent was also not qualified to claim to be a specialist in
Obstetrics and Gynaecology and therefore could not have
performed the surgery which only a qualified Gynaecologist
D
could perform.
The respondent's version
9. The appellant had an emergency consultation with the
respondent on 9.5.1995, complaining that she had heavy vaginal
E 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. On a clinical examination, the respondent found a huge
mass in the pelvic region and tenderness in the whole area. In
F view of the severe condition, Respondent advised an ultrasound
-+
examination on the same evening. 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. On the basis of clinical and ultra sound examination, she
G made a provisional diagnosis of endometriosis and informed
the appellant about the nature of the ailment, the anticipated
extent of severity, and tha modality of treatment. She further ~ .....•
informed the appellant that a laparoscopic examination was
needed to confirm the diagnosis; that if on such examination,
H she found that the condition was manageable with conservative
SAMIRA KOHLI v. DR. PRABHA MANCHANDA & ANR. 739
[RAVEENDRAN, J.]

surgery, she would only remove the chocolate cyst and fulgurate A
the endometric areas and follow it by medical therapy; and that
if the lesion was extensive, then considering her age and
likelihood of destruction of the function of the tubes, she will
perform hysterectomy. She also explained the surgical
procedure involved, and answered appellant's queries. The B
appellant stated that she was in acute discomfort and wanted a
permanent cure and, therefore whatever was considered

~
• necessary, including a hysterectomy may be performed. When
appellant's mother called on her on the same evening, the
respondent explained to her also about the nature of disease c
and the proposed treatment, and appellant's mother stated that
she may do whatever was best for her daughter. 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
D
the uterus and the ovaries. 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 considered as a
reasonable and favoured option. Further, endometriosis itself
affected fertility adversely. All these were made known to the
appellant before she authorised the removal of uterus and E
ovaries, if found necessary on laparoscopic examination.
10. On 10.5.1995, the appellant's consent was formally
recorded in the consent form by Dr. Lata Rangan - respondent's

... assistant. Dr. Lata Rangan informed the appellant about the F
consequences of such consent and explained the procedure
that was proposed. The appellant signed the consent forms only
after she read the duly filled up forms and understood their
contents. All the requisite tests to be conducted mandatorily
before the surgery were performed including Blood Grouping,
G
HIV, Hemoglobin, PCV, BT, CT and ECG. The laparoscopic
examination of the uterus surface confirmed the provisional
diagnosis of endometriosis. The right ovary wc.s enlarged and
showed a chocolate cyst stuck to the bowel. Right tube was
also involved in the lesion. The left ovary and tube were also
H
740 SUPREME COURT REPORTS [2008) 1 S.C.R.

A stuck to the bowel near the cervix. A few small cysts were seen
on the left ovary. The pelvic organs were thick and difficult to
mobilize. Having regard to the extent of the lesion and the
condition of appellant's uterus and ovaries, she decided that
conservative surgery would not be sufficient and the appellant's
B problem required removal of uterus and ovaries. The respondent
sent her assistant, Dr. Lata Rangan to explain to appellant's
mother that the lesion would not respond to conservative surgery
and a hysterectomy had to be performed and took her consent.
The surgery was extremely difficult due to adhesions and
• ~
...

c vascularity of surface. A 'sub-total hysterectomy' was done
followed by the removal of 'rest of the stump of cervix'. As the
right ovary was completely stuck down to bowel, pouch of
douglas, post surface and tube, it had to be removed piecemeal.
When appellant regained consciousness, she was informed
about the surgery. The appellant felt assured that heavy bleeding
D
and pain would not recur. There was no protest either from the
appellant or her mother, in regard to the removal of the ovaries
and uterus. ,
11. However, on 15.5.1995, Commander Zutshi to whom
E appellant was said to have been engaged, created a scene
and got her discharged. At the time of discharge, the summary
of procedure and prescription of medicines were given to her.
As the bill was not paid, the respondent filed Suit No.469/1995
for recovery of the bill amount and the said suit was decreed in
F due course.
12. Respondent performed the proper surgical procedure
in pursuance of the consent given by the appellant and there
was no negligence, illegality, impropriety or professional
misconduct. There was real and informed consent by the
G appellant for the removal of her reproductive organs. The surgery
(removal of uterus and ovaries), not only cured the appellant of
her disease but also saved her intestines, bladder and ureter
from possible damage. But for the surgical removal, there was
-. .....
likelihood of the intestines being damaged due to extension of
H lesion thereby causing bleeding, fibrosis and narrowing oi the
SAMIRA KOHLI v. DR. PRABHA MANCHANDA &ANR. 741
[RAVEENDRAN, J.]

.., gut; there was also likelihood of the lesion going to the surface A
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. As the complainant was already on the wrong side of
40 years which is a peri-menopausal age and as the appellant B
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 t.he ova and sperm, there was no chance of c
appellant conceiving, even if the surgery had not been
performed. The removal of her uterus and ovaries was proper
and necessary and there was no negligence on the part of the
respondent in performing the surgery. A Doctor who has acted
in accordance with a practice accepted as proper by medical
D
fraternity cannot be said to have acted negligently. In the realm
of diagnosis and treatment there is ample scope for genuine
-r differences of opinion and no Doctor can be said to have acted
negligently merely because his or her opinion differs from that
of other Doctors or because he or she has displayed lesser
skill or knowledge when compared to others. There was thus E
no negligence on her part.

Questions for consideration :
13. On the contentions raised, the following questions arise
for our consideration : F
+
(i) Whether informed consent of a patient is necessary
for surgical procedure involving removal of
reproductive organs? If so what is the nature of such
consent?
G
(ii) When a patient consults a medical practitioner,
,
l .whether consent given for diagnostic surgery, can
be construed as consent for performing additional
or further surgical procedure- either as conservative
treatment or as radical treatment - without the H
742 SUPREME COURT REPORTS [2008] 1 S.C.R.

A specific consent for such additional or further surgery.
~
(iii) Whether there was consent by the appellant, for the
abdominal hysterectomy and Bilateral Salpingo-
oopherectomy (for short AH-BSO) performed by the
respondent?
B
(iv) 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
,.
c surgery was either to cover-up negligence in
conducting diagnostic laparoscopy or to claim a
higher fee ?
(v) Even if appellant was suffering from endometriosis,
the respondent ought to have resorted to conservative
D treatment/surgery instead of performing radical
surgery?
(vi) Whether the Respondent is guilty of the tortious act
of negligence/battery amounting to deficiency in
service, and consequently liable to pay damages to
E the appellant.
Re : Question No.(i) and (ii)
14. Consent in the context of a doctor-patient relationship,
means the grant of permission by the patient for an act to be
F carried out by the doctor, such as a diagnostic, surgical or
~
therapeutic procedure. Consent can be implied in some
circumstances from the action of the patient. For example, when
a patient enters a Dentist's clinic and sits in the Dental chair,
his consent is implied for examination, diagnosis and
G consultation. Except where consent can be clearly and obviously
implied, there should be express consent. There is, however, a
significant difference in the nature of express consent of t.1e :t
patient, known as 'real consent' in UK and as 'informed consent'
in America. In UK, the elements of consent are defined with
H reference to the patient and a consent is considered to be va:id
SAMIRA KOHLI v. DR. PRABHA MANCHANDA & ANR. 743
[RAVEENDRAN, J.]

and 'real' when (i) the patient gives it voluntarily without any A
coercion; (ii) the patient has the capacity and competence to
give consent; and (iii) the patient has the minimum of adequate
level of information about the nature of the procedure to which
he is consenting to. On the other hand, the concept of 'informed
consent' developed by American courts, while retaining the basic B
requirements consent, shifts the emphasis to the doctor's duty
to disclose the necessary information to the patient to secure
I .
his consent. 'Informed consent' is defined in Taber's Cyclopedic
~
Medical Dictionary thus :
"Consent that is given by a person after receipt of the c
following information : the nature and purpose of the
proposed procedure or treatment; the expected outcome
and the likelihood of success; the risks; the alternatives to
the procedure and supporting information regarding those
alternatives; and the effect of no treatment or procedure. D
including the effect on the prO'gnosis and the material risks
associated with no treatment. Also included are instructions
concerning what should be done if the procedure turns out
to be harmful or unsuccessful."
In Canterbury v. Spence - 1972 [464] Federal Reporter E
2d. 772, the United States Courts of appeals, District of
Columbia Circuit, emphasized the element of Doctor's duty in
'informed consent' thus:
"It is well established that the physician must seek and F
+. secure his patient's consent before commencing an
.1
1 operation or other course of treatment. It is also clear
that the consent, to be efficacious, must be free from
imposition upon the patient. It is the settled rule that
therapy not authorized by the patient may amount to a
G
tort - a common law battery - by the physician. And it is
.. t evident that if is normally impossible to obtain a consent
worthy of the name unless the physician first elucidates
the options and the perils tor the patient's edification.
Thus the physician has long borne a duty, on pain of
H
744 SUPREME COURT REPORTS [2008] 1 S.C.R.

A liability for unauthorized treatment, to make adequate
disclosure to the patient."
[Emphasis supplied]
15. The basic principle in regard to patient's consent may
be traced to the following classic statement by Justice Cardozo
8
in Schoendorff vs. Society of New York Hospital - (1914) 211
NY 125:
'Every human being of adult years and sound mind has a . '
right to determine what should be done with his body; and
c a surgeon who performs the operation without his patient's
consent, commits an assault for which he is liable in
damages."
This principle has been accepted by English court also. In
Re : F 1989(2) All ER 545, the House of Lords while dealing
D with a case of sterilization of a mental patient reiterated the
fundamental principle that every person's body is inviolate and
performance of a medical operation on a person without his or
her consent is unlawful. The English law on this aspect is
summarised thus in Principles of Medical Law (published by
E Oxford University Press - Second Edition, edited by Andrew
Grubb, Para 3.04, Page 133) :
"Any intentional touching of a person is unlawful and
amounts to the tort of battery unless it is justified by consent
or other lawful authority. In medical law, this means that a
F doctor may only carry out a medical treatment or procedure
which involves contact with a patient if there exists a valid
consent by the patient (or another person authorized by
law to consent on his behalf) or if the touching is permitted
notwithstanding the absence of consent."
G
16. The next question is whether in an action for
negligence/battery for performance of an unauthorized surgical
procedure, the Doctor can put forth as defence the consent given
for a particular operati·1e procedure, as consent for any
additional or further operative procedures performed in tt1e
I-!
SAMIRA KOHLI v. DR. PRABHA MANGHANDA & ANR. 745
[RAVEENDRAN, J.]
·~
interests of the patient. In Murray vs. McMurchy-1949 (2) DLR A
442, the Supreme Court of BC, Canada, was considering a
claim for battery by a patient who underwent a caesarian section.
During the course of caesarian section, the doctor found fibroid
tumors in the patient's uterus. Being of the view that such tumours
would be a danger in case of future pregnancy, he performed a B
sterilization operation. The court upheld the claim for damages
I
for battery. It held that sterilization could not be justified under
~
the principle of necessity, as there was no immediate threat or
danger to the patient's health or life and it would not have been
unreasonable to postpone the operation to secure the patient's c
consent. The fact that the doctor found it convenient to perform
the sterilization operation without consent as the patient was
already under general anaesthetic, was held to be not a valid
defence. A somewhat similar view was expressed by Courts of
Appeal in England in Re : F. (supra). It was held that the
D
additional or further treatment which can be given (outside the
--1
consented procedure) should be confined to only such treatment
as is necessary to meet the emergency, and as such needs to
be carried out at once and before the patient is likely to be in a
position to make a decision for himself. Lord Goff observed :
E
"Where, for example, a surgeon performs an operation
without his consent on a patient temporarily rendered
unconscious in an accident, he should do no more than is
reasonably required, in the best interests of the patient,
~ before he recovers consciousness. I can see no practical F
difficulty arising from this requirement, which derives from
• the fact that the patient is expected before long to regain
consciousness and can then be consulted about longer
term measures."

_,. 't· The decision in Marshell vs. Curry - 1933 (3) DLR 260 G
' decided by the Supreme Court of NS, Canada, illustrates the
exception to the rule, that an unauthorized procedure may be
justified if the patient's medical condition brooks no delay and
warrants immediate action without waiting for the patient to
regain consciousness and take a decision for himself. In that H

""'
746 SUPREME COURT REPORTS [2008] 1 S.C.R.

A case the doctor discovered a grossly diseased testicle while
performing a hernia operation. As the doctor considered it to
be gangrenous, posing a threat to patient's life and health, the
doctor removed it without consent, as a part of the hernia
operation An action for battery was brought on the ground that
B the consent was for a hernia operation and removal of testicle
was not consent. The claim was dismissed. The court was of
the view that the doctor can act without the consent of the patient
where it is necessary to save the life or preserve the health of
the patient. Thus, the principle of necessity by which the doctor
c is permitted to perform further or additional procedure
(unauthorized) is restricted to cases where the patient is
temporarily incompetent (being unconscious), to permit the
procedure delaying of which would be unreasonable because
of the imminent danger to the life or health of the patient.
D 17. It is quite possible that if the patient been conscious,
and informed about the need for the additional procedure, the
patient might have agreed to it. It may be that the additional
procedure is beneficial and in the interests of the patient. It may
be that postponement of the additional procedure (say removal
E of an organ) may require another surgery, whereas removal of
the affected organ during the initial diagnostic or exploratory
surgery, would save the patient from the pain and cost of a
second operation. Howsoever practical or convenient the
reasons may be, they are not relevant. What is relevant and of
F importance is the inviolable nature of the patient's right in regard
to his body and his right to decide whether he should undergo
the particular treatment or surgery or not. Therefore at the risk
of repetition, we may add that unless the unauthorized additional
or further procedure is necessary in order to save the life or
G preserve the health of the patient and it would be unreasonable
(as contrasted from being merely inconvenient) to delay the -y ...
further procedure until the patient regains consciousness and
takes a decision, a doctor cannot perform such procedure
without the consent of the patient.
H 18. We may also refer to the code of medical ethics laid
SAMIRA KOHLI v. DR. PRABHA MANCHANDA & ANR. 747
[RAVEENDRAN, J.]
~
down by the Medical Council of India (approved by the Central A
\
Government under section 33 of Indian Medical Council Act,
I 1956). It contains a chapter relating to disciplinary action which
enumerates a list of responsibilities, violation of which will be
professional misconduct. Clause 13 of the said chapter places
the following responsibility on a doctor : B
"13. Before performing an operation the physician should
~ obtain in writing the consent from the husband or wife,
parent or guardian in the case of a minor, or the patient
himself as the case may be. In an operation which may
result ih sterility the consent of both husband and wife is c
needed."

We may also refer to the following guidelines to doctors,
issued by the General Medical Council of U.K. in seeking
consent of the patient for investigation and treatment :
D
-1 "Patients have a right to information about their condition
and the treatment options available to them. The amount
of information you give each patient will vary, according to
factors such as the nature of the condition, the complexity
of the treatment, the risks associated with the treatment or E
" procedure, and the patient's own wishes. For example,
patients may need more information to make an informed
I decision about the procedure which carries a high risk of
(
failure or adverse side effects; or about an investigation
+ for a condition which, if present, could have serious F
implications for the patient's employment. social or
personal life.

_;;
xxxxx
You should raise with patients the possibility of additional G
.. i- problems coming to light during a procedure when the
patient is unconscious or otherwise unable to make a
decision. You should seek consent to treat any problems
which you think may arise and ascertain whether there are
any procedures to which the patient would object, or prefer
H
748 SUPREME COURT REPORTS [2008] 1 S.C.R.

~.
A to give further thought before you proceed."
The Consent form for Hospital admission and medical
treatment, to which appellant's signature was obtained by the
respondent on 10.5.1995, which can safely be presumed to
constitute the contract between the parties, specifically states :
B
"(A) It is customary, except in emergency or extraordinary
circumstances, that no substantial procedures are ~

performed upon a patient unless and until he or she has
had an opportunity to discuss them with the physician or
c other health professional to the patient's satisfaction.
(8) Each patient has right to consent, or to refuse
consent, to any proposed procedure of therapeutic
course."

D 19. We therefore hold that in Medical Law, where a surgeon
is consulted by a patient, and consent of the patient is taken for
diagnostic procedure/surgery, such consent cannot be
considered as authorisation or permission to perform
therapeutic surgery either conservative or radical (except in life
threatening or emergent situations). Similarly where the consent
E by the patient is for a particular operative surgery, it cannot be
treated as consent for an unauthorized additional procedure
involving removal of an organ, only on the ground that such
removal is beneficial to the patient or is likely to prevent some
danger developing in future, where there is no imminent danger ~

F to the life or health of the patient.
20. We may next consider the nature of information that is
required to be furnished by a Doctor to secure a valid or real
consent. In Bowater v. Rowley Regis Corporation - [1944] 1 KB
G 476, Scott L.J. observed :
"A man cannot be said to be truly 'willing' unless he is in r -
a position to choose freely, and freedom of choice
predicates, not only full knowledge of the circumstances
on which the exercise of choice is conditioned, so that he
H may be able to choose wisely, but the absence from his
SAMIRA KOHLI v. DR. PRABHA MANCHANDA & ANR. 749
[RAVEENDRAN, J.]

-· :>\' mind of any feeling of constraint so that nothing shall A
interfere with the freedom of his will."
In Sa/go vs. Leland Stanford [154 Cal. App. 2d.560
(1957)]; it was held that a physician violates his duty to his patient
and subjects himself to liability if he withholds any facts which
are necessary to form the basis of an intelligent consent by the B
patient to the proposed treatment.
k 21. Canterbury (supra) explored the rationale of a Doctor's
duty to reasonably inform a patient as to the treatment
-;,
alternatives available and the risk incidental to them, as also c
the scope of the disclosure requirement and the physician's
privileges not to disclose. It laid down the 'reasonably prudent
patient test' which required the doctor to disclose all material
risks to a patient, to show an 'informed consent'. It was held :
"True consent to what happens to one's self is the informed D
=o; exercise of a choice, and that entails an opportu11ity to
--¥ evaluate knowledgeably the options available and the risks
attendant upon each. The average patient has little or no
understanding of the medical arts, and ordinarily has only
his physician to whom he can look for enlightenment with E
which to reach an intelligent decision. From these almost
axiomatic considerations springs the need, and in turn the
requirement, of a reasonable divulgence by physician to
patient to make such a decision possible.
F
* ... Just as plainly, due care normally demands that the
physician warn the patient of any risks to his well being
which contemplated therapy may involve.
The context in which the duty of risk-disclosure arises is
invariably the occasion for decision as to whether a G
particular treatment procedure is to be undertaken. To the
_, i-
I physician, whose training enables a self-satisfying
evaluation, the answer may seem clear, but it is the
prerogative of the patient, not the physician, to determine
for himself the direction in which his interests seem to lie.
H
750 SUPREME COURT REPORTS [2008] 1 S.C.R.

A To enable the patient to chart his course understandably,
some familiarity with the therapeutic alternatives and their
hazards becomes essential .........
•-,.;

-
A reasonable revelation in these respects is not only a
necessity but, as we see it, is as much a matter of the
B physician's duty. It is a duty to warn of the dangers lurking
in the proposed treatment, and that is surely a facet of due
care. It is, too, a duty to impart information which the patient ~
has every right to expect. The patient's reliance upon the
physician is a trust of the kind which traditionaily has
c exacted obligations beyond those associated with arms
length transactions. His dependence upon the physician
for information affecting his well-being, in terms of
contemplated treatment, is well-nigh abject.. ..... we
ourselves have found "in the fiducial qualities of (the
D physician-patient) relationship the physician's duty to
reveal to the patient that which in his best interests it is )-
important that he should know." We now find, as a part of
the physician's overall obligation to the patient, a similar
duty of reasonable disclosure of the choices with respect
E to proposed therapy and 1he dangers inherently and
potentially involve.
In our view, the patient's right of self-decision shapes the
boundaries of the duty to reveal. That right can be effectively
exercised only ifthe patient possesses enough information
F to enable an intelligent choice. The scope of the +
physician's communications to the patient, then, must be
measured by the patient's need, and that need is the
information material to the decision. Thus the test for
determining whether a particular peril must be divulged is
G its materially to the patient's decision : all risks potentially
affecting the decision must be unmasked. " y
""'
It was further held that a risk is material 'when a reasonable
person, in what the physician knows or should know to be the
patient's position, would be likely to attat;h significance to the
H
SAMIRA KOHLI v. DR. PRABHA MANCHANDA & ANR. 751
[RAVEENDRAN, J.J

risk or cluster of risks in deciding whether or not to forego the A
proposed therapy'. The doctor, therefore, is required to
communicate all inherent and potential hazards of the proposed
treatment, the alternatives to that treatment, if any, and the likely
effect if the patient remained untreated. This stringent standard
of disclosure was subjected to only two exceptions : (i) where B
there was a genuine emergency, e.g. the patient was
unconscious; and (ii) where the information would be harmful to
•
+ the patient, e.g. where it might cause psychological damage,
or where the patient would become so emotionally distraught
as to prevent a rational decision. It, however, appears that c
several States in USA have chosen to avoid the decision in
Canterbury by enacting legislation which severely curtails
operation of the doctrine of informed consent.
22. The stringent standards regarding disclosure laid down
in Canterbury, as necessary to secure an informed consent of D
the patient, was not accepted in the English courts. In England,
standard applicable is popularly known as the Bolam Test, first
laid down in Bo/am v. Friern Hospital Management Committee
- [1957] 2 All.E.R. 118. McNair J., in a trial relating to neglig~nce
of a medical practitioner, while instructing the Jury, stated thus : E
"(i) A doctor is not negligent, if he has acted in accordance
with a practice accepted as proper by a responsible body
of medical men skilled in that particular art ....... Putting
it the other way round, a doctor is not negligent, if he is
acting in accordance with such a practice, merely because F
there is a body of opinion that takes a contrary view. At the
same time, that does not mean that a medical man can
obstinately and pig-headedly carry on with some old
technique if it has been proved to be contrary to what is
really substantially the whole of informed medical opinion. G
... i (ii) When a doctor dealing with a sick man strongly
1
believed that the only hope of cure was submission to a
particular therapy, he could not be criticized if, believing
the danger involved in the treatment to be minimal, did not
H
752 SUPREME COURT REPORTS [2008] 1 S.C.R.

A stress them to the patient.
(iii) In order to recover damages for failure to give warning
""
the plaintiff must show not only that the failure was negligent
but also that if he had been warned he would not have
consented to the treatment.
B
23. Hunter v. Hanley (1955 SC 200), a Scottish case is
also worth noticing. In that decision, Lord President Clyde held: ,.
j
"In the realm of diagnosis and treatment there is ample
scope for genuine difference of opinion and one man
c clearly is not negligent merely because his conclusion
differs from that of other professional men, nor because
he has displayed less skill or knowledge than others would
have shown. The true test for establishing negligence in
diagnosis or treatment on the part of a doctor is whether
D he has been proved to be guilty of such failure as no
doctor of ordinary skill would be guilty of if acting with
ordinary care."
He also laid down the following requirements to be
established by a patient to fasten liability on the ground of want
E
of care or negligence on the part of the doctor :
'To establish liability by a doctor where deviation from
normal practice is alleged, three facts require to be
established. First of all it must be proved that there is a
F usual and normal practice; secondly it must be proved
that the defender has not adopted that practice; and thirdly
(and this is of crucial importance) it must be established
that the course the doctor adopted is one which no
professional man of ordinary skill would have taken if he
had been acting with ordinary care."
G
24. In Sidaway v. Beth/em Royal Hospital Governors & 'T .,._
Ors. [1985] 1 All ER 643, the House of Lords, per majority,
adopted the Bolam test, as the measure of doctor's duty to
disclose information about the potential consequences and risks
H of proposed medical treatment. In that case the defendant, a
SAMIRA KOHLI v. DR. PRABHA MANCHANDA & ANR. 753
[RAVEENDRAN, J.]

-:A( surgeon, warned the plaintiff of the possibility of disturbing a A
\ nerve root while advising an operation on the spinal column to
relieve shoulder and neck pain. He did not however mention
the possibility of damage to the spinal cord. Though the
operation was performed without negligence, the plaintiff
sustained damage to spinal cord resulting in partial paralysis. B
The plaintiff alleged that defendant was negligent in failing to
~ inform her about the said risk and that had she known the true
"':'
• position, she would not have accepted the treatment. The trial
Judge and Court of Appeal applied the Bo.lam test and
concluded that the defendant had acted in accordance with a c
practice accepted as proper by a responsible body of medical
opinion, in not informing the plaintiff of the risk of damage to
spinal cord. Consequently, the claim for damages was rejected.
The House of Lords upheld the decision of the Court of Appeal
that the doctrine of informed consent based on full disclosure of
D
all the facts to the patient, was not the appropriate test of liability
-f for negligence, under English law. The majority were of the view
that the test of liability in respect of a doctor's duty to warn his
patient of risks inherent in treatment recommended by him was
the same as the test applicable to diagnosis and treatment,
namely, that the doctor was required to act in accordance with E
the practice accepted at the time as proper by a responsible
body of medical opinion. Lord Diplock stated:

"In English jurisprudence the doctor's relationship with his

+ patient which gives rise to the normal duty of care to F
exercise his skill and judgment to improve the patient's
health in any particular respect in which the patient has
sought his aid has· hitherto been treated as a single
comprehensive duty covering all the ways in which a doctor
is called on to exercise his skill and judgment in the
G
improvement of the physical or mental condition of the
- -r patient for which· his services either as a general
practitioner or as a specialist have been engaged. This
general duty is not subject to dissection into a number of
component parts to which different criteria of what satisfy
H
754 SUPREME COURT REPORTS [2008) 1 S.C.R.

A the duty of care apply, such as diagnosis, treatment and ~

advice (including warning of any risks of something going
wrong however skillfully the treatment advised is carried
,
out). The Bo/am case itself embraced failure to advise
the patient of the risk involved in the electric shock treatment
B as one of the allegations of negligence against the surgeon
as well as negligence in the actual carrying out of treatment
in which that risk did result in injury to the patient. The ._
same criteria were applied to both these aspects of the ;.
surgeon's duty of care. In modern medicine and surgery
c such dissection of the various things a doctor has to do in
the exercise of his whole duty of care owed to his patient
is neither legally meaningful nor medically practicable .......
To decide what risks the existence of which a patient should
be voluntarily warned and the terms in which such warning,
if any, should be given, having regard to the effect that the
D
warning may have, is as much an exercise of professional
skill and judgment as any other part of the doctor's
comprehensive duty of care to the individual patient, and
expert medical evidence on this matter should be treated
in just the same way. The Bolam test should be applied."
E
Lord Bridge stated :
"I recognize the logical force of the Canterbury doctrine,
proceeding from the premise that the patient's right to
make his own decision must at all costs be safeguarded
F against the kind of medical paternalism which assumes . -;..
that 'doctor knows best'. But, with all respect, I regard the
doctrine as quite impractical in application for three
principal reasons. First, it gives insufficient weight to the
realities of the doctor/patient relationship. A very wide
G variety of factors must enter into a doctor's clinical judgment
not only as to what treatment is appropriate for a particular .,. ....
patient, but also as to how best to communicate to the
patient the significant factors necessary to enable the
patient to make an informed decision whether to undergo
H the treatment. The doctor cannot set out to educate the
SAMIRA KOHLI v. DR. PRABHA MANCHANDA & ANR 755
[RAVEENDRAN, J.]
patient to his own standard of medical knowledge of all A
the relevant factors involved. He may take the view,
certainly with some patients, that the very fact of his
volunteering, without being asked, information of some
remote risk involved in the treatment proposed, even
though he described it as remote, may lead to that risk B
assuming an undue significance in the patient's
calculations. Second, it would seem to me quite unrealistic
"' in any medical negligence action to confine the expert
.t-
medical evidence to an explanation of the primary medical
factors involved and to deny the court the benefit of c
. evidence of medical opinion and practice on the particular
issue of disclosure which is under consideration. Third,
the objective test which Canterbury propounds seems to
me to be so imprecise as to be almost meaningless. If it
is to be left to individual judges to decide for themselves
D
what "a reasonable person in the patient's position' would
consider a risk of sufficient significance that he should be
told (lbout it, the outcome of litigation in this field is likely
to be quite unpredictable."
Lord Bridge however made it clear that when questioned E
specifically by the patient about the risks involved in a particular
treatment proposed, the doctor's duty is to answer truthfully and
as fully as the questioner requires. He further held that remote
risk of damage (referred to as risk at 1 or 2%) need not be
.~
disclosed but ifthe risk of damage is substantial (referred to as F
10% risk), it may have to be disclosed. Lord Scarman, in minority,
was inclined to adopt the more stringent test laid down in
Canterbury.
25. In India, Bolam test has broadly been accepted as the
general rule. We may refer three cases of this Court. In Achutrao G
~ 1 Haribhau Khodwa vs. State of Maharastra - 1996 (2) SCC 634,
this Court held :
''The skill of medical practitioners differs from doctor to
doctor. The nature of the profession is such that there may
H
756 SUPREME COURT REPORTS [2008] 1 S.C.R.

A be more than one course of treatment which may be
advisable for treating a patient. Courts would indeed be
slow in attributing negligence on the part of a doctor if he
has performed his duties to the best of his ability and with
due care and caution. Medical opinion may differ with
8 regard to the course of action to be taken by a doctor
treating a patient, but as long as a doctor acts in a manner
which is acceptable to the medical profession and the
Court finds that he has attended on the patient with due -;,
care skill and diligence and if the patient still does not
c survive or suffers a permanent ailment, it would be difficult
to hold the doctor to be guilty of negligence ........... In cases
where the doctors act carelessly and in a manner which is
not expected of a medical practitioner, then in such a case
an action in torts would be maintainable."
D In Vinitha Ashok vs. Lakshmi Hospital - 2001 (8) SCC
731, this Court after referring to Bo/am, Sidaway and Achutrao,
clarified:
"A doctor will be liable for negligence in respect of
diagnosis and treatment in spite of a body of professional
E
opinion approving his conduct where it has not been
established to the court's satisfaction that such opinion
relied on is reas0nable or responsible. If it can be
demonstrated that the professional opinion is not capable
of withstanding the logical analysis, the court would be
F entitled to hold that the body of opinion is not reasonable ...
or responsible.
In Indian Medical Association vs. VP Shantha - 1995 (6)
SCC 651, this Court held :
G "The approach of the courts is to require that professional
men should possess a certain minimum degree of
competence and that they should exercise reasonable "" ~

care in the discharge of their duties. In general, a
professional man owes to his client a duty in tort as well
H as in contract to exercise reasonable care in giving advice
SAMIRA KOHLI v. DR. PRABHA MANCHANDA & ANR. 757
[RAVEENDRAN, J.]

':i\' or performing services". A
Neither Achutrao nor Vinitha Ashok referred to the
American view expressed in Canterbury.
26. In India, majority of citizens requiring medical care and
treatment fall below the poverty line. Most of them are illiterate B
or semi-literate. They cannot comprehend medical terms,
concepts, and treatment procedures. They cannot understand
• the functions of various organs or the effect of removal of such
_.t-
organs. They do not have access to effective but costly
diagnostic procedures. Poor patients lying in the corridors of c
hospitals after admission for want of beds or patients waiting
for days on the roadside for an admission or a mere examination,
is a common sight. For them, any treatment with reference to
rough and ready diagnosis based on their outward symptoms
and doctor's experience or intuition is acceptable and welcome
D
so long as it is free or cheap; and whatever the doctor decides
as being in their interest, is usually unquestioningly accepted.
-+ They are a passive, ignorant and uninvolved in treatment
procedures. The poor and. needy face a hostile medical
environment - inadequacy in the number of hospitals and beds,
non-availability of ad~quate treatment facilities, utter lack of E
qualitative treatment, corruption, callousness and apathy. Many
poor patients with serious ailments (eg. heart patients and
cancer patients) have to wait for months for their turn even for
diagnosis, and due to limited treatment facilities, many die even
1- before their turn comes for treatment. What choice do these F
poor patients have? Any treatment of whatever degree, is a boon
or a favour, for them. The stark reality is that for a vast majority
in the country, the concepts of informed consent or any form of
consent, and choice in treatment, have no meaning or relevance.
G
The position of doctors in Government and charitable
T i hospitals, who treat them, is also unenviable. They are
overworked, understaffed, with little or no diagnostic or surgical
facilities and limited choice of medicines and treatment
procedures. They have to improvise with virtual non-existent
H
758 SUPREME COURT REPORTS (2008) 1 S.C.R.

A facilities and limited dubious medicines. They are required to
be committed, service oriented and non-commercial in outlook.
What choice of treatment can these doctors give to the poor
patients? What informed consent they can take from them?
27. On the other hand, we have the Doctors, hospitals,
B nursing homes and clinics in the private commercial sector.
There is a general perception among the middle class public
that these private hospitals and doctors prescribe avoidable •
costly diagnostic procedures and medicines, and subject them t
to unwanted surgical procedures, for financial gain. The public
C feel that many doctors who have spent a crore or more for
becoming a specialist, or nursing homes which have invested
several crores on diagnostic and infrastructure facilities, would
necessarily operate with a purely commercial and not service
motive; that such doctors and hospitals would advise extensive
D costly treatment procedures and surgeries, where conservative
or simple treatment may meet the need; and that what used to
be a noble service oriented profession is slowly but steadily
converting .into a purely business .
.E 28. But unfortunately not all doctors in government hospitals
are paragons of service, nor fortunately, all private hospitals/
doctors are commercial minded. There are many a doctor in
government hospitals who do not care about patients and
unscrupulously insist upon 'unofficial' payment for free treatment
or insist upon private consultations. On the other hand, many
F private hospitals and Doctors give the. best of treatment without
exploitation, at a reasonable cost, charging a fee, which is
resonable recompense for the service rendered. Of course,
some doctors, both in private practice or in government service,
look at patients not as persons who should be relieved from
G pain and suffering by prompt and proper treatment at an
affordable cost, but as potential income-providers/ customers
who can be exploited by prolonged or radical diagnostic and
treatment procedures. It is this minority who bring a bad name
to the entire profession.
H
SAMIRA KOHLI v. DR. PRABHA MANCHANDA & ANR. 759
[RAVEENDRAN, J.]
29. Health care (like education) can thrive in the hands of A
charitable institutions. It also requires more serious attention
from the State. In a developing country like ours where teeming
millions of poor, downtrodden and illiterate cry out for health-
care, there is a desperate need for making health-care easily
accessible and affordable. Remarkable developments in the B
field of medicine might have revolutionalized health care. But
. they cannot be afforded by the common man. The woes of non-
ct· affording patients have in no way decreased. Gone are the days
when any patient could go to a neighbourhood general
practitioner or a family doctor and get affordable treatment at a c
very reasonable cost, with affection, care and concern. Their
noble tribe is dwindling. Every Doctor wants to be a specialist.
The proliferation of specialists and super specialists, have
exhausted many a patient both financially and physically, by
having to move from doctor to doctor, in search of the
D
appropriate specialist who can identify the problem and provide
treatment. What used to be competent treatment by one General
Practitioner has now become multi-pronged treatment by
several specialists. Law stepping in to provide remedy for
negligence or deficiency in service by medical practioners, has
its own twin adverse effects. More and more private doctors E
and hospitals have, of necessity, started playing it safe, by
subjecting or requiring the patients to undergo various costly
diagnostic procedures and tests to avoid any allegations of
negligence, even though they might have already identified the
J. ailment with reference to the symptoms and medical history with · F
90% certainly, by their knowledge and experience. Secondly
more and more doctors particularly surgeons in private practice
are forced to cover themselves by taking out insurance, the cost
of which is also ultimately passed on to the patient, by way of a
higher fee. As a consequence, it is now common that a G
comparatively simple ailment, which earlier used to be treated
at the cost of a few rupees by consulting a single doctor, requires
an expense of several hundred or thousands on account of four
factors :_ (i) commercialization of medical treatment; (ii} increase
in specialists as contrasted from general practitioners and the H
760 SUPREME COURT REPORTS [2008) 1 S.C.R.

A need for consulting more than one doctor; (iii) varied diagnostic
and treatment procedures at high cost; and (iv) need for doctors
to have insurance cover. The obvious, may be na"lve, answer to
unwarranted diagnostic procedures and treatment and
prohibitive cost of treatment, is an increase in the participation
B of health care by the state and charitable institutions. An
enlightened and committed medical profession can also provide
a better alternative. Be that as it may. We are not trying to intrude
on matter$ of policy, nor are we against proper diagnosis or +
specialisation. We are only worried about the enormous
c hardship and expense to which the common man is subjected,
and are merely voicing the concern of those who are not able to
fend for themselves. We will be too happy if what we have
observed is an overstatement, but our intuition tells us that it is
an understatement.
D 30. What we are considering in this case, is not the du.ties
or obligations of doctors in government charitable hospitals
where treatment is free or on actual cost basis. We are
concerned with doctors in private practice and hospitals and
nursing homes run commercially, where the relationship of
E doctors and patients are contractual in origin, the service is in
consideration of a fee paid by the patient, where the contract
implies that the professional men possessing a minimum
degree of competence would exercise reasonable care in the
discharge of their duties while giving advice or treatment.
F 31. There is a need to keep the cost of treatment within
affordable limits. Bringing in the American concepts and
standards of treatment procedures and disclosure of risks,
consequences and choices will inevitably bring in higher cost-
structure of American medical care. Patients in India cannot
G· ~fford them. People in India still have great regard and respect
for Doctors. The Members of medical profession have also, by + .
and large, shown care and concern for the patients. There is an
atmosphere of trust and implicit faith in the advice given by the
Doctor. The India psyche rarely questions or challenges the
H medical advice. Having regard to the conditions obtaining in
SAMIRA KOHLI v. DR. PRABHA MANCHANDA & ANR. 761
[RAVEENDRAN, J.]

·-" India, as also the settled and recognized practices of medical A
fraternity in India, we are of the view that to nurture the doctor-
patient relationship on the basis of trust, the extent and nature
of information required to be given by doctors should continue
to be governed by the Bolam test rather than the 'reasonably
prudential patient' test evolved in Canterbury. It is for the doctor B
to decide, with reference to the condition of the patient, nature
. of illness, and the prevailing established practices, how much
.;. information regarding risks and consequences should be given
to the patients, and how they should be couched, having the
best interests of the patient. A doctor cannot be held negligent c
either in regard to diagnosis or treatment or in disclosing the
risks involved in a particular surgical procedure or treatment, if
the doctor has acted with normal care, in accordance with a
recognised practices accepted as proper by a responsible body
of medical men skilled in that particular field, even though there
D
may be a body of opinion that takes a contrary view. Where
-+ there are more than one recognized school of established
medical practice, it is not negligence for a doctor to follow any
one of those practices, in preference to the others.
32. We may now summarize principles relating to consent E
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: F
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. G
1 (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
H
..
762 SUPREME COURT REPORTS [2008] 1 S.C.R.

A 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;
B (c) an outline of the substantial risks; and (d) adverse
consequences of ref using 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.
c 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
D
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
E 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
F 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
G
to save the life or preserve the health of the patient
and it wot.lid be unreasonable to delay such
unauthorized procedure until patient regains
consciousness and takes a decision.

H (iv) There can be a common consent for diagnostic and
'
~ SAMIRA KOHLI v. DR. PRABHA MANCHANDA &ANR. 763
[RAVEENDRAN, J.)

*' operative procedures where they are contemplated. A
There can also be a common consent for a particular
surgical procedure and an additional or further
procedure that may become necessary during the
course of surgery.
B
(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 c
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.
D
33. We may note here that courts in Canada and Australia
4. have moved towards Canterbury standard of disclosure and
informed conserit-vide Reibl v. Hughes (1980) 114 DLR (3d.)
. 1 decided by the Canadian Supreme Court and Rogers v.
Whittaker - 1992 (109) ALR 625 decided by the High Court of
E
Australia. Even in England there is a tendency to make the
doctor's duty to inform more stringent than Bola m's test adopted
in Sidaway. Lord Scarman's minority view in Sidaway favouring
Canterbury, in course of time, may ultimately become the law in
England. A beginning has been made in Bolitho. v. City and
·~
Hackney HA - 1998 1 AC 232 and Pearce v. United Bristol F
Healthcare NHS Trust 1998 (48) BMLR 118. We have however,
consciously preferred the 'real consent' concept evolved in
Bo/am and Sidaway in preference to the 'reasonably prudent
patient test' in Canterbury, having regard to the ground realities
in medical and health-care in India. But if medical practitioners G
t and private hospitals become more and more commercialized,
and if there is a corresponding increase in the awareness of
patient's rights among the public, inevitably, a day may come
when we may have to move towards Canterbury. But not for the
present. H
764 SUPREME COURT REPORTS [2008] 1 S.C.R.

..,..
A Re : Question No.(iii)
34. 'Gynaecology' (second edition) edited by Robert W.
Shah, describes 'real consent' with reference to Gynaecologists
(page 867 et seq) as follows :

B "An increasingly important risk area for all doctors is the
question of consent. No-one may lay hands on another
against their will without running the risk of criminal
prosecution for assault and, if injury results, a civil action A

for damages for trespass or negligence. In the case of a
c doctor, consent to any physical interference will readily
be implied; a woman must be assumed to consent to a
normal physical examination if she consults a
gynaecologist, in the absence of clear evidence of her
refusal or restriction of such examination. The problems
arise when the gynaecologist's intervention results in
D
unfortunate side effects or permanent interference with a
function, whether or not any part of the body is removed. +.
For example, if the gynaecologist agrees with the patient
to perform a hysterectomy and removes the ovaries
without her specific consent, that will be a trespass and
E an act of negligence. The only available defence will be
that it was necessary for the life of the patient to proceed
at once to remove the ovaries because of some
perceived pathology in them.

F What is meant by consent? The term 'informed consent' ~
is often used, but there is no such concept in English law.
The consent must be real : that is to say, the patient must
have been given sufficient information for her to understand
the nature of the operation, its likely effects, and any
complications which may arise and which the surgeon in
G
the exercise of his duty to the patient considers she should
-t
be made aware of; only then can she reach a proper
decision. But the surgeon need not warn the patient of
remote risks, any more than an anaesthetist need warn
the patient that a certain small number of those
H
J

SAMIRA KOHLI v. DR. PRABHA MANCHANDA & ANR. 765
(RAVEENDRAN, J.]

anaesthetized will suffer cardiac arrest or never recover A
consciousness. Only where there is a recognized risk,
rather than a rare complication, is the surgeon under an
obligation to warn the patient of that risk. He is not under
a duty to warn the patient of the possible results of
hypothetical negligent surgery... 8
In advising an operation, therefore, the doctor must do so
in the way in which a competent gynaecologist exercising
'A reasonable skill and care in similar circumstances would
have done. In doing this he will take into account the
.... personality of the patient and the importance of the c
operation to her future well being. It may be good practice
not to warn a very nervous patient of any possible
complications if she requires immediate surgery for, say,
a malignant condition. The doctor must decide how much
to say to her taking into account his assessment of her D
personality, the questions she asks and his view of how
..+ much she understands. If the patient asks a direct question,
she must be given a truthful answer.... To take the example
of hysterectomy : although the surgeon will tell the patient
that it is proposed to remove her uterus and perhaps her E
ovaries, and describe what that will mean for her future
well being (sterility, premature menopause), she will not
be warned of the possibility of damage to the ureter,
vesicovaginal fistula, fatal haemorrhage or anaesthetic
death." F
->-..
35. The specific case of the appellant was that she got
herself admitted on 10.5.1995 only for a diagnostic laparoscopy;
that she was not 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 G
consent was not obtained for the removal of her reproductive
' t 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 H
766 SUPREME COURT REPORTS [2008] 1 S.C.R.

A hysterectomy was the only option to save her life, and took her
consent.
36. The respondent on the other hand contends that on
the basis of clinical and ultra sound examination on 9.5.1995,
she had made a provisional diagnosis of endometriosis; that
B on same day, she informed the complainant 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 conservative treatment by operative A
laparoscopy, but if the lesion was extensive then considering
C 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 appellant's consent
was obtained for such procedures; that the decision to operate
D and remove the uterus and ovaries was not sudden, nor on
account of any emergent situation developing during laproscopy;
and that the radical surgery was authorized, as it was preceded
by a valid consent. She also contends that as the appellant
wanted a permanent cure, the decision to conduct a
E hysterectomy was medically correct and the surgical procedure
in fact cured the appellant and saved her intestines, bladder
and ureter being damaged due to extension of the lesion. She
had also tried to justify the surgical removal of the uterus and
ovaries, with reference to the age and medical condition of the
F complainant.
37. The summery of the surgical procedure (dictated by
respondent and handwritten by her assistant Dr. Lata Rangan)
furnished to the appellant also confirms that no emergency or
life threatening situation developed during laparoscopy. This is
G reiterated in the evidence of respondent and Dr. Lata Rangan.
In her affidavit dated 16.2.2002 filed by way of examination-in-
chief, the respondent stated :
"15. The laproscopic examination revealed a frozen pelvis
and considering the extent of the lesion it was decided
H
SAMIRA KOHLI v. DR. PRABHA MANCHANDA & ANR. 767
[RAVEENDRAN, J.]

that conservative surgery was not advisable and the nature A
of the problem required for its cure hysterectomy.
16. 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. No complications had arisen in the B
operation theatre and the procedure being performed was
in terms of the consent given by Ms. Samira Kohli herself."
•
A In her affidavit dated 16.2.2002 filed by way of examination-
in-chief, Dr. Lata Rangan stated: c
"14. I was in the Operation Theatre alongwith Dr. Prabha
Manchanda. The laproscopic examination revealed a
frozen pelvis and considering the extent of the lesion· it
was decided that conservative surgery was not possible
and that the nature of the problem required performance D
of hysterectomy.

--+ 15. 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 now going to be performed on her. No complications E
had arisen in the Operation Theatre and the procedure
conducted therein was in terms of the consent given by
Ms. Samira Kohli herself. I got the mother to sign the Form
too so that the factum of intimation was duly documented."
F
~. Thus, the respondent's 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 consent, reiterated in writing by
G
the appellant in the consent form on 10.5.1995, she performecj
the AH-BSO removing the uterus and ovaries on finding
, t extensive endometriosis. In other words, according to
respondent, the abdominal hysterectomy and bilateral salpingo-
oopherectomy (AH-BSO) was not necessitated on account of
H
768 SUPREME COURT REPORTS [2008] 1 S.C.R.

A any emergency or life threatening situation developing or being
discovered when laparoscopic test was conducted, but
according to an agreed plan, consented by the appellant and
her mother on 9.5.1995 itself, reiterated in writing on 10.5.1995.
Therefore the defence of respondent is one based on specific
B consent. Let us therefore examine whether there was consent.
38. The Admission and Discharge card maintained and
produced by the respondent showed that the appellant was
admitted "for diagnostic and (?)operative laparoscopy on A
10.5.1995". The OPD card dated 9.5.1995 does not refer to·
c endometriosis, which is also admitted by the respondent in her
cross-examination. lffact, the respondent also admitted that the
confirmation of diagnosis is possible only after laparoscopy test:
"On clinical and ultrasound examination a diagnosis can
D be made to some extent. But precise diagnosis will have
to be on laparoscopy."
The consent form dated 10.5.1995 signed by the appellant
states that appellant has been informed that the treatment to be
undertaken is "diagnostic and operative laparoscopy.
E Laparotomy may be needed." 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." (Note : Hysteroscopy is
inspection of uterus by special endoscope and laproscopy is
F abdominal exploration by special endoscope.)
39. In this context, we may also refer to a notice dated
5.6.1995 issued by respondent to the appellant through counsel,
demanding payment of Rs.39,325/- towards the bill amount.
Paras 1, 3, and 4 are relevant which are extracted below:
G
"1. You were admitted to our clinic Dr. Manchanda, No.7,
Ring Road, Lajpat Nagar, New Delhi for diagnostic and ..,.
'
operative Japaroscopy and Endometrial biopsy on
10.5.1995." ...........
H "3. The findings of laparoscopy were : a very extensive
SAMIRA KOHLI v. DR. PRABHA MANCHANDA & ANR. 769
[RAVEENDRAN, J.]

lesion of the endometriosis with pools of blood, extensive A
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 no cyst."
"4. The findings were duly conveyed to Ms. Somi Kohli B
who was also shown a video recording of the lesion. You
and Mrs. Somi Kohli were informed that conservative
surgery would be futile and removal of the uterus and more
extensive surgery, considering your age and extensive
lesion and destruction of the functions of the tubes, was
preferable." c
This also makes it clear that the appellant was not admitted
for conducting hysterectomy or bilateral salpingo-oopherectomy,
but only for diagnostic purposes. We may, however, refer to a
wrong statement of fact made in the said notice. It states that on
0
10.5.1995 after conducting a laparoscopic examination, the
video-recording of the lesion was shown to appellant's mother,
and the respondent informed the appellant and her mother that
conservative surgery would be futile and removal of uterus and
more extensive surgery was preferable having regard to the
more extensive lesion and destruction of the function of the tubes. E
But this statement cannot be true. The extensive nature of lesion
and destruction of the functions obviously became evident only
after diagnostic laparoscopy. But after diagnostic laparoscopy
and the video recording of the Lesion, there was no occasion
for respondent to inform anything to appellant. When the F
laparoscopy and video recording was made, the appellant was
already unconscious. Before she regained consciousness, AH-
BSO was performed removing her uterus and ovaries.
Therefore, the appellant could not have been informed on
10.5.1995 that conservative surgery would be futile and removal G
of uterus and extensive surgery was preferable in view of the
extensive lesion and destruction of the function of the tubes did
not arise.
40. The admission card makes it clear that the appellant
H
770 SUPREME COURT REPORTS [2008] 1 S.C.R.

A was admitted only for diagnostic and operative laparoscopy. It
does not refer to laparotomy. The consent form shows that the
appellant gave consent only for diagnostic operative
laparoscopy, and laparotomy if needed. Laparotomy is a
surgical procedure to open up the abdomen or an abdominal
s operation. It refers to the operation performed to examine the
abdominal organs and aid diagnosis. Many a time, after the
diagnosis is made and the problem is identified it may be fixed A
during the laparotomy itself. In other cases, a subsequent surgery
may be required. Laparotomy can no doubt be either a
c diagnostic or therapeutic. In the former, more often referred to
as the exploratory laparotomy, an exercise is undertaken to
identify the nature of the disease. In the latter, a therapeutic
laparatomy is conducted after the cause has been identified.
When a specific operation say hysterectomy or salpingo-
D oopherectomy is planned, laparotomy is merely the first step of
the procedure, followed by the actual specific operation, namely +-
hysterectomy or salpingo-oopherectomy. Depending upon the
incision placement, laparotomy gives access to any abdominal
organ or space and is the first step in any major diagnostic or
therapeutic surgical procedure involving a) the lower port of the
E digestive tract, b) liver, pancreas and spine, c) bladder, d) female
reproductive organs and e) retroperitonium. On the other hand,
hysterectomy and slapingo-oopherectomy follow laparotomy
and are not themselves referred to as laparotomy. Therefore,
when the consent form refers to diagnostic and operative +
F laparoscopy and "laparotomy if needed", it refers to a consent
for a definite laparoscopy with a contingent laparotomy if needed.
It does not amount to consent for OH-BSO surgery removing
the uterus and ovaries/fallopian tubes. If the appellant had
consented for a OH-BSO then the consent form would have
G given consent for "diagnostic and operative laparoscopy.
Laparotomy, hysterectomy and bilateral salpingo-oopherectomy,
if needed."
41. On the documentary evidence and the histopathology
report the appellant also raised an issue as to whether appellant
H
SAMIRA KOHLI v. DR. PRABHA MANCHANDA & ANR. 771
[RAVEENDRAN, J.]
y
was ~uffering from endometriosis at all. She points out that ultra- A
sound did not disclose endometriosis and the histopathology
report does not confirm endometriosis. The respective experts
examined on either side have expressed divergent views as to
whether appellant was suffering from endometriosis. It may not
be necessary to give a definite finding on this aspect, as the B
real question for consideration is whether appellant gave
•;. consent for hysterectomy and bilateral salpingo-oopherectomy
and not whether appellant was suffering from endometriosis.
Similarly there is divergence of expert opinion as to whether
removal of uterus and ovaries was the standard or recognized c
remedy even if there was endometriosis and whether
conseNative treatment was an alternative. Here again it is not
necessary to record any finding as to which is the proper remedy.
It is suffiC:ient to note that there are different modes of treatment
favoured by different schools of thought among Gynaecologists.
D
---+ 42. Respondent contended that the term 'laparotomy' is
used in the consent form (by her assistant Dr. Lata Rangan) is
equal to or same as hysterectomy. The respondent's contention
that 'Laparotomy' refers to and includes hystectomy and bilateral
salpingo-oopherectomy cannot be accepted. The following clear E
evidence of appellant's expert witness - Dr. Puneet Bedi (CW
1) is not challenged in cross examination :
"Laparotomy is opening up of the abdomen which is quite
different from hysterectomy. Hysterectomy is a procedure
which involves surgical removal of uterus. The two F
procedures are totally different and consent for each
procedure has to be obtained separately."
On the other hand, the evidence of respondent's expert
witness (Dr. Sudha Salhan) on this question is evasive and ·
G
t clearly implies laparotomy is not the same as hysterectomy. The
relevant portion of her evidence is extracted below :
"Q. As per which medical authority;l~parotomy is equal to
hysterectomy?
H
772 SUPREME COURT REPORTS [2008] 1 S.C.R.

A Ans. Consent for laparotomy permits undertaking for such
surgical procedure necessary to treat medical conditions
including hysterectomy.
Q. I put it to you that th.e medical practice is to take specific
consent for hysterectomy.
B
Ans. Whenever we do hysterectomy only, specific consent
is obtained."
43. Medical texts and authorities clearly spell out that
Laparotomy is at best the initial step that is necessary for
C performing hysterectomy or salpingo-oopherectomy.
Laparotomy by itself is not hysterectomy or salpingo-
oopherectomy. Nor does 'hysterectomy' include salpingo-
oopherectomy, in the case of woman who has not attained
menopause. Laparotomy does not refer to surgical removal of
D any vital or reproductive organs. Laparotomy is usually
exploratory and once the internal organs are exposed and
examined and the disease or ailment is diagnosed, the problem
may be addressed and fixed during the course of such
laparotomy (as for example, removal of cysts and fulguration of
E endometric area as stated by respondent herself as a
conservative form of treatment). But Laparotomy is never
understood as referring to removal of any organ. In medical
circles, it is well recognized that a catch all clause giving the
surgeon permission to do anything necessary does not give
F roving authority to remove whatever he fancies may be for the
good of the patient. For example, a surgeon cannot construe a
consent to termination of pregnancy as a consent to sterilize
the patient.
44. When the oral and documentary evidence is
G considered in the light of the legal position discussed above
while answering questions (i) and (ii), it is clear that there was
no consent by the appellant for conducting hysterectomy and
bilateral salpingo-oopherectomy.
45. The Respondent next contended that the consent given
H
SAMIRA KOHLI v. DR. PRABHA MANCHANDA & ANR. 773
[RAVEENDRAN, J.]
'r by the appellant's mother for performing hysterectomy should A
be considered as valid consent for performing hysterectomy
and salpingo-oopherectomy. The appellant was neither a minor,
nor mentally challenged, nor incapacitated. When a patient is a
competent adult, there is no question of someone else giving
consent on her behalf. There was no medical emergency during B
surgery. The appellant was only temporarily unconscious,
•A undergoing only a diagnostic procedure by way of laparoscopy.
The respondent ought to have waited till the appellant regained
consciousness, discussed the result of the laparoscopic
examination and then taken her consent for the removal of her c
uterus and ovaries. In the absence of an emergency and as the
matter was still at the stage of diagnosis, the question of taking
her mother's consent for radical surgery did not arise. Therefore,
such consent by mother cannot be treated as valid or real
consent. Further a consent for hysterectomy, is not a consent
D
for bilateral salpingo - ooperectomy.
46. There is another facet of the consent given by the
appellant's mother which requires to be noticed. The
respondent's specific case is that the appellant had agreed for
the surgical removal of uterus and ovaries depending upon the E
extent of the lesion. It is also her specific case that the consent
' by signing the consent form on 10.5.1995 wherein the treatment
is mentioned as "diagnostic and operative laparoscopy.
Laparotomy may be needed." includes the AH-BSO surgery for
J removal of uterus and ovaries. If the term 'laparotomy' is to F
include hysterectomy and salpingo-oopherectomy as contended
by the respondent and there was a specific consent by the
appellant in the consent form signed by her on 10.5.1995, there
was absolutely no need for the respondent to send word through
her assistant Dr. Lata Rangan to get the consent of appellant's
G
' 't mother for performing hysterectomy under general anesthesia.
The very fact that such consent was sought from appellant's
mother for conducting hysterectomy is a clear indication that
there was no prior consent for hysterectomy by the appellant.
47. We may, therefore, summarize the factual position thus: H
774 SUPREME COURT REPORTS [2008] 1 S.C.R.

A (i) On 9.5.1995 there was no confirmed diagnosis of
endometriosis. The OPD slip does not refer to a
provisional diagnosis of endometriosis on the basis
of personal examination. Though there is a detailed
reference to the findings of ultrasound in the entry
B relating to 9.5.1995 in the OPD slip, there is no
reference to endometriosis which shows that
ultrasound report did not show endometriosis. In fact, ..I._

ultra-sound may disclose fibroids, chocolate cyst or
other abnormality which may indicate endometriosis,
c but cannot by itself lead to a diagnosis of
endometriosis. This is evident from the evidence of
CW1, RW1 and RW2 and recognized text books. In
fact respondent's expert Dr. Sudha Salhan admits in
her cross examination that endometriosis can only
be suspected but not diagnosed by ultrasound and
D
it can be confirmed only by laparoscopy. Even
according to respondent, endometriosis was
confirmed only by laparoscopy. [Books on
"Gynaecology' clearly state : "The best means to
diagnose endometriosis is by direct visualization at
E laparoscopy or laparotomy, with histological
,
confirmation where uncertainty persists."] Therefore
the claim of respondent that she had discussed in
detail about endometriosis and the treatment on
9.5.1995 on the basis of her personal examination
F and ultra-sound report appears to be doubtful.
(ii) The appellant was admitted only for diagnostic
laparoscopy (and at best for limited surgical treatment
that could be made by laproscopy). She was not
admitted for hysterectomy or bilateral salpingo-
G
oopherectomy.
* •
(iii) There was no consent by appellant for hysterectomy
or bilateral salpingo-oopherectomy. The words
"Laparotomy may be needed" in the consent form
H dated 10.5.1995 can only refer to therapeutic
SAMIRA KOHLI v. DR. PRABHA MANCHANDA & ANR. 775
[RAVEENDRAN, J.]
r
procedures which are conservative in nature (as for. A
example removal of chocolate cyst and fulguration of
endometric areas, as stated by respondent herself
as a choice of treatment), and not radical surgery
involving removal of important organs.
48. We find that the Commission has, without any legal B
• basis, concluded that "the informed choice has to be left to the
.~.
operating surgeon depending on his/her discretion, after
assessing the damage to the internal organs, but subject to his/
her exercising care and caution". It also erred in construing the
words "such medical treatment as is considered necessary for c
me for. ...... " in the consent form as including surgical treatment
by way of removal or uterus and ovaries. The Commission has
also observed : "whether the uterus should have been removed
or not or some other surgical procedure should have been
_, followed are matters to be left to the discretion of the performing
surgeon, as long as the surgeon does the work with adequate
D

care and caution". This proceeds on the erroneous assumption
that where the surgeon has shown adequate care and caution
in performing the surgery, the consent of the patient for removal
of an organ is unnecessary. The Commission failed to notice E
.., that the question was not about the correctness of the decision
to remove the uterus and ovaries, but the failure to obtain the
consent for removal of those important organs. There was a
~
also faint attempt on the part of the respondent's counsel to
contend that what were removed were not 'vital' organs and F
having regard to the advanced age of the appellant, as
procreation was not possible, uterus and ovaries were virtually
redundant organs. The appellant's counsel seriously disputes
the position and contends that procreation was possible even
at the age of 44 years. Suffice it to say that for a woman who
G
' t has not married and not yet reached menopause, the
reproductive organs are certainly important organs. There is
also no dispute that removal of ovaries leads to abrupt
menopause causing hormonal imbalance and consequential
adverse effects.
H
776 SUPREME COURT REPORTS (2008) 1 S.C.R.
--..,
A Re : Question Nos.(iv) and (v) :
49. The case of the appellant is that she was not suffering
from endometriosis and therefore, there was no need to remove
the uterus and ovaries. In this behalf, she examined Dr. Puneet
Bedi (Obstetrician and Gynaecologist) who gave hormone
B therapy to appellant for about two years prior to his examination
in 2002. He stated that the best method to diagnose
A
endometriosis is diagnostic laparoscopy; that the presence of
endometrial tissue anywhere outside the uterus is called
Endometriosis; that the Histopathology report did not confirm
c endometriosis in the case of appellant; and that the mode of
treatment for endometriosis would depend on the existing extent
of the disease. He also stated that removal of uterus results in
abrupt menopause. In natural menopause, which is a slow
process, the body gets time to acclimatize to the low level of
D hormones gradually. On the other hand when the ovaries are
removed, there is an abrupt stoppage of natural hormones and
therefore Hormone Replacement Therapy is necessary to make
up the loss of natural hormones. Hormone Replacement
Therapy is also given even when there is a natural menopause.
E But hormone replacement therapy has side effects and
complications. He also stated that on the basis of materials ...
available on the file, he was of the view that Hysterectomy was
not called for immediately. But if endometriosis had been proven
from history and following diagnostic laparoscopy, hysterectomy ~

F could be considered as a last resort if all other medical methods
failed. What is relevant from the evidence of Dr. Puneet Bedi, is
that he does not say that hysterectomy is not the remedy for
endometriosis, but only that it is a procedure that has to be
considered as a last resort.
G 50. 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. She stated that having regard to the
H medical condition of complainant, her decision to perform
SAMIRA KOHLI v. DR. PRABHA MANCHANDA & ANR. 777
[RAVEENDRAN, J.]

hysterectomy was medically correct. The complainant wanted A
t- 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. She explained that if the uterus
· and ovaries had not been removed there was a likelihood of
lesion extending to the intestines causing bleedings, fibrosis B
and narrowing of the gut; the lesion could also go to the surface
of the bladder penetrating the wall and causing haematuria and
. ~ • the ureter could be damaged due to fibrosis leading to damage
-" of the kidney; there was also a chance of development of cancer
also. She also pointed out that the complainant being 44 years c
of age, was in the precmenopausal 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
D
the state of bodily health did not depend upon the existence of
uterus and ovaries.
___..
51. The respondent also examined Dr. Sudha Salhan,
Professor and Head of Department (Obstetrics and
Gynaecology) and President of the Association of Obstetricians E
and Gynaecologists of Delhi. 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 correct and appropriate to appellant's medical
condition. She stated that the treatment is determined by severity F
~ of the disease and hysterectomy was not an unreasonable
option as there was no scope left for fecundability in a woman
aged 44 years suffering from endometriosis. She also stated
that the histopathology report dated 15.5.1995 confirmed the
diagnosis of endometriosis made by respondent. She also
G
stated that she saw video-tape of the laparoscopic examination
and concurred that the opinion of respondent that the lesion being
"' -+
extensive conservation surgery was not possible and the
problem could effectively be addressed only by more extensive
surgery that is removal of the uterus and ovaries. She also stated
H
778 SUPREME COURT REPORTS [2008] 1 S.C.R.

A that the presence of chocolate cyst was indicative of
endometriosis. She also stated that medication ·merely
suppresses endometriosis and the definitive treatment was
surgical removal of the uterus and both the ovaries. She also
stated that hysterectomy is done when uterus comes out from a
B prolapse and the woman is elderly, or when there is a cancer of
the uterus, or when there are massive fibroids or when a severe
grade of endometriosis along with ovaries or in cases of
malignancy or the cancer of the ovaries.
52. The evidence therefore demonstrates that on
C laparoscopic examination, respondent was satisfied that
appellant was suffering from endometriosis. The evidence also
demonstrates that there is more than one way of treating
endometriosis. While one view favours conservative treatment
with hysterectomy as a last resort, the other favours
D hysterectomy as a complete and immediate cure. The age of
the patient, the stage of endometriosis among others will be
determining factors for choosing the method of treatment. The
very suggestion made by appellant's counsel to the expert
witness Dr. Sudha Salhan that worldwide studies show that
E most hysterectomies are conducted unnecessarily by
Gynecologists demonstrates that it is considered as a favoured
treatment procedure among medical fraternity, offering a
permanent cure. Therefore respondent cannot be held to be
negligent, merely because she chose to perform radical surgery
F in preference to conservative treatment. This finding however
has no bearing on the issue of consent which has been held
against the respondent. The correctness or appropriateness of
the treatment procedure, does not make the treatment legal, in
the absence of consent for the treatment.
G 53. It is true that the appellant has disputed the respondent's
finding that she was suffering from endometriosis. The
histopathology report also does not diagnose any
endometriosis. The expert witness examined on behalf of the
appellant has also stated that there was no evidence that the
H appellant was suffering from endometriosis. On the other hand
SAMIRA KOHLI v. DR. PRABHA MANCHANDA & ANR. 779
[RAVEENDRAN, J.]

the respondent has relied on some observations of the A
"-•
~.

-r histopathology report and on her own observations which has
been recorded in the case summary to conclude that the
appellant was suffering from endometriosis. The evidence shows
that the respondent having found evidence of endometriosis,
proceeded on the basis that removal of uterus and ovaries was B
beneficial to the health of the appellant having regard to the age
of the appellant and condition of the appellant to provide a
• permanent cure to her ailment, though not authorized to do so .
~ On a overall consideration of the evidence, we are not prepared
to accept the claim of appellant that the respondent falsely c
invented a case that the appellant was suffering from
endometriosis to cover up some negligence on her part in
......
conducting the diagnostic/operative laparoscopy or to explain
the unauthorized and unwarranted removal of uterus and ovaries.
Re : Question No.(vi) : D

54. In view of our finding that there was no consent by the
~ appellant for performing hysterectomy and salpingo-
oopherectomy, performance of such surgery was an unauthorized
,
i invasion and interference with appellant's body which amounted
to a tortious act of assault and battery and therefore a deficiency E
in service. But as noticed above, there are several mitigating
circumstances. The respondent did it in the interest of the
,
appellant. 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 F
permanent relief. It is also possible that the respondent thought
that the appellant may approve the additional surgical procedure
when she regained consciousness and the consent by
appellant's mother gave her authority. This is a case of
respondent acting in excess of consent but in good faith and for G
the benefit of the appellant. Though the appellant has alleged
+ -t that she had to undergo Hormone Therapy, no other serious
repercussions is made out as a result of the removal. The
appellant was already fast approaching the age of menopause
and in all probability required such Hormone Therapy. Even H
780 SUPREME COURT REPORTS [2008] 1 S.C.R.

A assuming that AH-BSO surgery was not immediately required,
there was a reasonable certainty that she would have ultimately
required the said treatment for a complete cure. On the facts
and circumstances, we consider that interests of justice wpuld
be served if the respondent is denied the entire fee charged for
B the surgery and in addition, directed to pay Rs.25,000 as
compensation for the unauthorized AH-BSO surgery to the
appellant.
55. We accordingly allow this appeal and set aside the
order of the Commission and allow the appellant's claim in part.
C If the respondent has already received the bill amount or any
part thereof from the appellant (either by executing the decree
said to have been obtained by her or otherwise), the respondent
shall refund the same to the appellant with interest at the rate of
10% per annum from the date of payment till the date of re-
D payment. The Respondent shall pay to the appellant a sum of
Rs.25,000/- as compensation with interest thereon at the rate
of 10% per annum from 19.11.2003 (the date of the order of
Commission) till date of payment. The appellant will also be
entitled to costs of Rs.5,000 from the respondent.
E S.K.S. Appeal allowed.

-t •