In a case of orthopedics surgery, known complication of shortening occurred. Unfortunately due to careless conduct of Hospital/Doctors consent form was left blank for known complications, which considered negligence by the NCDRC.

NCDRC observed that on a pointed query from the Bench with respect to the informed consent, Complainant drew our attention to the Consent Form, which shows that all the six risks that can occur are left blank. Therefore, the contention of the Ld. Counsel for the Respondents that all risks were explained and informed consent was taken, is unsustainable. We find the Respondents negligent only with respect to not having obtained informed consent and explaining the known complications to the Complainant.  At the cost of repetition admittedly, as deposed by the Treating Doctors themselves, shortening of leg is a known complication. If that may be so it ought to have been explained to the Complainant prior to the surgery. Even otherwise in the informed consent all risks are left ‘BLANK’, which is contrary to the ratio laid down by the Hon’ble Supreme Court in Samira Kohli (supra).  

NCDRC concluded that therefore, we are of the considered view that there is negligence on the part of the Hospital and the Treating Doctor only to the extent indicated above i.e. not having explained the known complications to the Complainant and, therefore, the Revision Petition is partly allowed and the order of the State Commission is set aside. [Para 17]

Questions for Consideration:

• Whether the Complainant was explained about the risks and complications prior to the surgery?
• Whether there was negligence on the part of the Treating Doctor in not taking informed consent and in not explaining the risks and complications to the patient?

We are of the considered view that the Treating Doctors (Respondents No. 2, 3 and 4) cannot be held to be liable for any ‘blanks’ which have been left in the Consent Form as we have held that there was no negligence per se  in the very conduction of the surgery. 

At the cost of repetition only negligence is with respect to not explaining the known complications of the Complainant, for which Act, we held Hospital alone liable. [Para 18]

Bolam Test a nuanced doctrine pertaining to the standard of care. A doctor has a legal duty to take care of his patient. Whenever a patient visits a doctor for treatment there is a contract by implication that the doctor will take reasonable care to treat him. If there is a breach of that duty and if it results in injury or damage, the doctor will be held liable. The doctor must exercise a reasonable degree of care and skill in his treatment; but at the same time he does not and cannot guarantee cure.