Fixing lives: Surgeons perform an operation in a city hospital

When 35-year-old Reshma Khan went for surgery for a pancreatic tumour in June this year, little did she know that she would return without a vital organ. Operated at a leading Mumbai hospital, Khan claims that doctors removed one of her kidneys without her consent.

Khan has found a friend in the Supreme Court. Earlier this year, the apex court defined “informed consent” in the context of a doctor-patient relationship. In a verdict delivered on the Samira Kohli versus Dr Prabha Manchanda case, it ruled that a doctor had to secure the consent of a patient before commencing a treatment, including surgery. The patient should have the competence to give his or her consent and should be given adequate information concerning the nature of the treatment procedure, it added.

“In India, little importance is given to a patient’s right to information,” says Dr Suganthi Iyer, assistant medical director, Hinduja Hospital, Mumbai. “Now we know what rules to follow regarding consent.”

A doctor is bound to give adequate information to the patient regarding the nature and procedure of treatment, its purpose, benefits and effects, alternatives available, substantial risks and adverse consequences. But all too often such information is simply not given. For instance, when Anupreeti Tripathi’s mother was operated for a coronary artery bypass graft in Bhopal recently, the cardiologist did not inform her about the high risk factors involved. Tripathi’s mother subsequently died of medical and surgical complications.

“Informed consent means that a patient agrees to the procedure after understanding the nature of treatment and adverse consequences, if any. The only exception to this rule is a life-threatening situation where the doctor is allowed to act in good faith,” says Supreme Court lawyer Prashant Bhushan.

Under Section 13 of the Indian Contract Act, 1872, two or more persons are in consent when they agree upon the same thing at the same time. As per Section 90 of the Indian Penal Code (IPC), 12 years is the age for giving valid consent to any medical procedure. On the other hand, the Indian Majority Act, 1875, says that a person is an adult when he or she is 18 years old.

“Most doctors consider the consent of a person between 12 and 18 years valid for medical examination. For medical procedure, they prefer to take the consent of parents,” says Dr Iyer.

The informed consent form is not just duly signed by the patient or the guardian. Ratna Ghosh from Calcutta was a victim of an invalid consent form when her sister went in for surgery. “I was asked to sign a form which didn’t mention the date of the surgery, carry a doctor’s signature or any details,” says Ghosh. Her sister was operated for a sebaceous cyst while she had high blood sugar (doctors had not controlled her blood sugar level prior to the operation) and eventually died from complications.

A legitimate informed consent form should carry a title, a short description of the surgery/treatment to be done, risks involved, benefits of the treatment, complications, high risks concerned, mode of anaesthesia, right of refusal, specific remarks, if any, and the signature. “The patient, doctor and an impartial witness have to sign the form. Only then does it become a legal document,” points out Dr Iyer.

Also, consent given only for a diagnostic procedure cannot be considered consent for therapeutic treatment. The apex court has ruled that consent given for a specific treatment will not be valid for conducting some other treatment procedure. “Usually, hospitals take a blanket consent when a patient is admitted. This form of consent is legally invalid and patients are unaware of this fact,” says Dr Anil Kohli, reader, University College of Medical Sciences, Delhi.

The legal redress for violating the rule of informed consent is the same as with any other incidence of medical negligence. The victim can file a formal complaint with the state medical council or Medical Council of India (MCI), as the case may be, seeking cancellation of the registration of the errant doctor. The victim can also file a civil case for financial compensation in the district/state/national consumers’ forum within two years of the incident of negligence.

“The doctor would be liable under Section 350 of the IPC for causing criminal force to the patient,” says advocate Prathibha S of Lawyer’s Collective, Delhi. If the procedure (without consent) has resulted in gross negligence leading to death or serious injury, a criminal case under Section 304-A of IPC can be filed through an FIR or through a private criminal complaint case in the court. Section 304-A states that whoever commits culpable homicide not amounting to murder can face imprisonment for a term of up to 10 years and a fine. In some circumstances, the person can be sentenced to life imprisonment.

Advocate Mahendra Bajpai, honorary director, Institute of Medicine and Law, Mumbai, points out that doctors can also be booked under Section(s) 336, 337 and 338 of the IPC that deal with hurt caused by an act endangering the life or personal safety of others. Moreover, an errant doctor can be booked under Section 313 for causing miscarriage without consent.

“Doctors routinely abuse a patient’s ignorance of medical rules. On many occasions, a patient or relative is asked to sign a form after the procedure is over. So it is easy for the doctor to put things the way they want to if any trouble erupts later,” says Dr Kunal Saha, People for Better Treatment (PBT), a Calcutta-based organisation that works to make doctors accountable for negligence.

But the law also provides doctors with some protection from charges of negligence. “Sections 76, 81, 88, 92, 93 of the IPC provide ample scope to protect the actions of doctors,” says Prathibha. These sections cover acts that are likely to cause harm but are done without criminal intent, to prevent other harm, or are done in good faith for the benefit of a person.

But patients or their relatives who have been shortchanged by doctors, often with fatal consequences, are in no mood to forgive or forget.

Reshma Khan, who has filed a complaint with the Maharashtra Medical Council, is awaiting a hearing. Anupreeti Tripathi believes if she had been better informed, her mother would still be alive. And Ratna Ghosh has filed a complaint with the West Bengal Medical Council. Clearly, there are many more cases of criminal neglect that are waiting to be redressed.