There are relatively few reported cases at the level of the
Supreme Court on the question of obtaining a
patient’s consent. The Supreme Court’s
decision in Samaira Kohli vs Dr D Manchanda
provides useful guidance to E&O Insurers of medical
professionals in particular.
The Plaintiff, an unmarried woman of 44 years of age,
visited the Defendant’s clinic complaining of
prolonged menstrual bleeding. D carried out an examination and
advised an ultrasound test be undertaken the same day. After
examining the ultrasound, D asked P to return the next day to
undergo a laparoscopy under general anaesthesia, in order that
D could arrive at a firm diagnosis.
When P arrived for the laparoscopy she was made to sign
various forms giving D and the clinic the right to carry out
the procedure. The admission card recorded that P had been
admitted 'for diagnostic and operative
laparoscopy'. The consent form described the procedure
as ‘diagnostic and operative laparoscopy. Laparotomy
may be needed’. P was put under general anaesthesia
and subjected to a laparoscopic examination. While P was
unconscious, D’s assistant met with P’s
mother, who had accompanied her to the clinic. The assistant
sought the consent of P’s mother to perform a
hysterectomy on P. P’s mother agreed, and
P’s uterus was removed.
P sought damages for the loss of her reproductive organs,
for irreversible permanent damage, for pain, suffering
emotional stress and trauma.
The Supreme Court held:
Where a patient’s consent is taken for a
diagnostic procedure or surgery, such consent cannot be
categorised as permission to perform therapeutic surgery,
whether conservative or radical, except in life threatening
Where a patient’s consent is taken for a
particular procedure, that consent cannot be used for an
In this case, P had her uterus removed on the ground that
D considered it would be beneficial to her and was likely to
avert future problems. As there was no imminent danger to the
life or health of P, D should not have proceeded without her
consent. D should have explained the benefits and risks of
the procedure to P, the available alternatives to the
recommended course of action, if any, and then taken
P’s informed consent.
A medical practitioner would only be permitted to withhold
information in 2 situations:
A genuine emergency where the patient is temporarily
incompetent or unconscious, and
Where the information would be harmful to the
The Supreme Court ruled in favour of P and awarded her
In addition to providing useful guidance, the case also
illustrates 2 other matters for E&O Insurers to bear in
mind. First, the events in question occurred in 1995. The
Supreme Court’s decision was handed down in 2008, so
13 years between the event and judgment. The time taken for
final judgment to be handed down is longer than one would
normally expect for a case of this nature, but not by much.
Second, in many circumstances it would not be considered
unusual or unorthodox for parental consent to be regarded as
The content of this article is intended to provide a
general guide to the subject matter. Specialist advice should
be sought about your specific circumstances.
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The insurance statutory and regulatory framework has,
historically, strictly restricted the amount of commission or
remuneration that can be paid to insurance agents and insurance
intermediaries (such as insurance brokers, corporate agents, web
aggregators and insurance marketing firms) for the solicitation and
procurement of insurance business.
Until very recently, the IRDAI's Guidelines on "File and Use" Requirements for General Insurance Products of 28th September 2006 governed the procedures and processes for introducing, modifying and withdrawing general insurance products.
The Insurance Regulatory and Development Authority of India has on December 15, 2015 issued the IRDA (Issuance of Capital by Indian Insurance Companies transacting other than Life Insurance Business) Regulations, 2015.
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