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Medicolegal Corner

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Dr KK Aggarwal and Ms Ira Gupta    30 April 2018

In an action for negligence/battery for performance of an unauthorized surgical procedure, can the doctor defend himself by stating that consent was given for a particular operative procedure which implied consent for any additional or further operative procedures performed in the interests of the patient?

Certain international case laws explain the situation.

The Supreme Court of Canada (Murray v. McMurchy 1949 (2) DLR 442) was considering a claim for battery by a patient who underwent a cesarean section. During the course of cesarean section, the doctor found fibroid tumors in the patient’s uterus. Being of the view that such tumors would be a danger in case of future pregnancy, he performed a sterilization operation. The court granted the claim for damages for battery to the complaining patient. It was 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 consent. The fact that the doctor found it convenient to perform the sterilization operation without consent as the patient was already under general anesthetic was held to be not a valid defense.

A somewhat similar view was expressed by Courts in England in Re: F. (supra). It was held that the additional or further treatment which can be given (outside the 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. The court observed: “….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 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…..”

The decision of Supreme Court of Canada, in the case referred to above, 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 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 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 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.

In case of failure to obtain proper consent a doctor would be exposed to charge of battery (which is a criminal charge), besides being liable for civil action for monetary compensation by way of damages for performing a procedure or investigation without consent of the individual concerned.

A leading case where for want of proper consent the Court held that the action of the doctor amounted to battery and awarded damages in favor of the patient and against the doctor was Bailey vs. Belinfante summarized below:

A patient was referred by his dentist to an oral surgeon. While waiting in the waiting room, and before even seeing the surgeon, he was given a surgical consent form to sign which gave the surgeon authority to do whatever procedure he thought best. When he saw the surgeon it was agreed that 11 teeth would be pulled. He went to the hospital, signed another general consent, and while he was under general anesthesia, the surgeon pulled 27 teeth. The court upheld his action for battery as to the 16 teeth for which no consent had been obtained.

Where there is no emergency condition, before the surgeon proceeds to extend surgery he should attempt to get the consent of someone in the patient’s family. If this is not possible, he should probably decide not to extend the scope of the surgery unduly. An extension of a minor operation into a major one is usually considered assault and battery in the absence of an emergency. However, want of consent would not impede a doctor from extending the operation if the said extension was demanded in exercise of sound professional judgment and was required to remedy any abnormal or diseased condition of the patient. The Courts have upheld, in another case (Kennedy vs. Parrott), surgery which was extended beyond the consent taken and observed as under:

During an appendectomy the surgeon discovered that his patient had several large ovarian cysts, which he punctured. The patient sued him for assault and battery but did not allege negligence. The Court dismissed the action and stated that it was “unreasonable to hold a physician to the exact operation that the preliminary examination indicates is necessary. A complete diagnosis may not be possible until the incision is made. The surgeon may extend the operation to remedy any abnormal or diseased condition in the area of the original incision whenever he, in the exercise of sound professional judgment, determines that correct surgical procedure demands it.

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