The Surgeon has right to chose the procedure - Hon'ble Supreme Court :. Adv. Rohit Erande ©

 The Surgeon has right to chose the procedure in the interest of the patient - Hon'ble Supreme Court.

The supreme Court observed : The criminal law has invariably placed medical professionals on a pedestal different from ordinary mortals.

The allegations of tampering in consent form by replacing Orchidectomy over Orchidopexy were turned down and it was held that the Surgeon did it in the interest of the child.

Case Details : 

Before the hon'ble Supreme Court of India 

SLP (Crl) No.14803/2023

DR. S. BALAGOPAL V/s. State of Tamilnadu 

Coram : Hon'ble Pamidigantam Sri Narasimha and Hon'ble Manoj Mishra JJ.

Decided on 06/04/2026

Facts of the case in short :

1. The Criminal case was started in the year 2006 against the Pediatric Surgeon - the Appellant and finally rested in the year 2026.

2. The father of a 1.5 yrs child     made a complaint, inter alia, alleging that his son,   was admitted in a hospital for a surgical procedure as one of his testicles had not descended into the scrotal sac. According to him doctors had obtained his consent for Orchidopexy (i.e., the surgical procedure that moves an undescended testicle into the scrotum), but there was no consent for Orchidectomy (i.e., removal of testicle). It was also alleged that prior to the surgery, the operating surgeon had explained that in 99 percent of such cases there is no need to remove the testicle. Therefore, specific consent for Orchidectomy was neither sought for and it was further alleged that Orchidectomy was performed and in the consent form, by interpolation, Orchidectomy was inserted, which amounted to an offence of forgery !!

3. Thus an FIR was lodged against the Doctor under various sections of IPC and the Doctor approached  Hon'ble High Court of Madras for quashing of an FIR and for constituting the expert Medical Board. The Hon'ble high Court refused to quash the FIR, but constituted the Board involving a Pediatric Surgeon, a Pathologist and an Oncologist and in short it was opined that "Undescended testis is a risk factor for development of malignancy and orchidectomy surgery done to the child   is an appropriate surgical procedure as per medical ethics, however   it should have been done with the consent of parents." 

4. Based on this report the Police filed additional charge sheet, but the High Court refused to quash the FIR and hence the Doctor approached hon'ble Supreme Court.   

Arguments :

Of Doctor :

a. It was argued that none of the reports cast any negligence upon the Doctor and the procedure performed by the Doctor was as per the standard medical practice and the Surgeon took the best decision in the interest of the patient. 

b. The consent form was in a printed format and the column regarding the nature of surgery advised indicated “Bilateral Orchidopexy/Orchidectomy.” The allegation is that Orchidectomy was added by interpolation in the consent form to save the doctor from the allegation of conducting surgery without consent.

c. the Director had opined that there was nothing suspicious about the consent form. Besides, there is no forensic report regarding interpolation of ‘Orchidectomy’ made in the consent letter either by a different ink or in a different handwriting.

of State :

Learned counsel appearing for the State submitted that though there may be no negligence on the part of the doctor in performing Orchidectomy, the doctor ought to have obtained a prior consent for the said surgical procedure.

Of the complainant :

a. that during surgery the doctor had asked him on phone whether he should perform Orchidectomy or not. Further, the doctor informed that if Orchidectomy is not performed, possibility of malignancy in future cannot be ruled out.

b. According to  complainant, this question of the doctor was answered in the negative and he had specifically stated that he would later consider whether removal of testis is to be undertaken. Despite that, the doctor proceeded with the surgery and removed the testicle without  s consent

Held : Their Lordships held :

a. Before we proceed to address the rival contentions, we must bear in mind that appellant-accused is a surgeon/doctor whose credentials as a surgeon /doctor are not in issue. The criminal law has invariably placed medical professionals on a pedestal different from ordinary mortals.

b. though enacted in 1860, Section 88 in the Chapter on General Exceptions provides exemption for acts not intended to cause death, done by consent in good faith for person’s benefit. Section 92 provides for exemption for acts done in good faith for the benefit of a person without his consent though the acts cause harm to the person and that person has not consented to suffer such harm.

c. It then relied upon the observations in the landmark judgment of Jacob mathew V/s. State of Punjab (2005) 6 SCC 1 that "to prosecute a medical professional for negligence under criminal law it must be shown that the accused did something or failed to do something which in the given facts and circumstances no medical professional in his ordinary senses and prudence would have done or failed to do. The hazard taken by the accused doctor should be of such a nature that the injury which resulted was most likely imminent.” . 

d. the Court gave due importance to the opinion of Medical Board  which held that the procedure was proper and opined  that Orchidectomy is an alternative procedure which may be undertaken to obviate chances of malignancy in future. It also accepted the contention of the appellant doctor that the consent form had limited space in the column where the nature of surgery had to be mentioned therefore, Orchidectomy was written by putting a slash just below Orchidopexy in the consent form. When this form was sent to Director of the Medical and Rural Health Services for his opinion, he  had not found any fault in the consent form.

e. The only issue is of whether the consent form was tampered or not and their lordships observed that  In the instant case, no malice is attributed to the doctor and there is no dispute that the consent form was executed for undertaking a medical procedure. 

f. Further, the medical opinion is to the effect that the procedure adopted by the doctor was one of the alternatives recognized to meet such a medical exigency. No doubt, Medical Board’s opinion indicates that such procedure should be carried out after obtaining consent, but there is nothing to indicate that the consent form already obtained was not in order or that no consent was obtained or there was any tampering and thus it was held that   continuance of criminal proceeding against the appellant would be nothing but abuse of the process of the court and, therefore to secure the ends of justice, the same is liable to be quashed.

It is a very important judgment and a sigh of relief for the Doctors, but the Doctors should learn from it and yet again this judgment comes to the basics of Informed Consent. No doubt the Doctor's intention were good to save his patient's life or to avoid future complications, still proper informed consent has no alternative. the Doctor had to spend 20 years in the Court for proving himself not guilty !!

With kind regards

(Adv. Rohit Erande)©