Operating Surgeon Is The Best Judge: Supreme Court Quashes Criminal Proceedings Against Surgeon Over Alleged Lack of Specific Consent For Orchidectomy
The Court noted that Orchidectomy mentioned in the consent form was a standard medical response to the cystic and dysplastic nature of the patient’s undescended testis.
Justice P.S. Narasimha, Justice Manoj Misra, Supreme Court
The Supreme Court while quashing criminal proceedings against a Surgeon, has held that the High Court erred in maintaining the proceedings, as the "Orchidectomy" mentioned in the consent form was a standard medical response to the cystic and dysplastic nature of the patient’s undescended testis, which posed a future risk of malignancy. It noted that the operating surgeon is the "best judge" of which procedure to adopt once a surgery has commenced and the internal medical condition is visible.
The Court, further noted that the criminal proceedings for forgery and negligence against a medical professional cannot be sustained when the surgical procedure performed, "Orchidectomy" in the present case, is medically recognised as an appropriate alternative and supported by a general consent form.
A Division Bench comprising Justice Pamidigantam Sri Narasimha and Justice Manoj Misra observed, “Taking a conspectus of all the facts and circumstances as also that there is no material on record that alternative surgery, namely, Orchidectomy, was entered by a different ink or in a different handwriting, and having regard to the Medical Board’s opinion that in such medical situations Orchidectomy is a normal alternative, we are of the view 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… Moreover, the operating surgeon is the best judge of which one of the two procedures is to be adopted.”.
T. R. B. Sivakumar, AOR appeared for the appellant and D. Kumanan, AOR appeared-in-person.
The case originated from a August 24, 2005 surgery on a one-and-a-half-year-old child admitted for a bilateral Orchidopexy to correct undescended testicles. During the procedure, the appellant, Dr. S. Balagopal, performed a left Orchidectomy, the removal of the testis, after discovering it was small, cystic, and dysplastic.
The child’s father, the de facto complainant, alleged that he had only consented to Orchidopexy and that the term "Orchidectomy" was forged into the consent form after the surgery to cover up a negligent act. Conversely, the doctor maintained that the parents were informed of the risks, including potential malignancy if the deformed tissue was retained, and that the consent form naturally included both options.
Thereafter, the police initially filed a charge-sheet under various IPC sections, including Section 336 (rash or negligent act) and Section 465 (forgery).
The Madras High Court had previously directed the constitution of a Medical Board, which later opined that Orchidectomy was the "appropriate surgical procedure" given the pathological findings of focal fibrosis and the risk of cancer. Despite this favorable medical report and a subsequent clarification from the Director of Medical and Rural Health Services stating that the doctor followed medical ethics, the High Court refused to quash the proceedings in 2023.
Now, the Court noted that while the "Bolam Test" for negligence was not strictly at issue, the Medical Board’s report was central to determining the surgeon's intent.
The Bench, thus, observed, “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. 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”.
“Ordinarily, an issue of tampering/ interpolation in a document being a question of fact is to be determined in a trial based on evidence led therein and, therefore, courts must be loath to examine such issues in a summary proceeding, like the one under Section 482 Cr.P.C. However, there can be no absolute bar on High Court’s power to consider questions of fact in exercise of jurisdiction under Section 482 Cr.P.C., particularly when such consideration is necessary to prevent the abuse of the process of the court or to secure the ends of justice”, it further noted.
Accordingly, the Court allowed the appeal, set aside the High Court’s judgment, and quashed the proceedings pending before the Judicial Magistrate No. 1, Poonamallee.
Cause Title: Dr. S. Balagopal v. State of Tamil Nadu & Anr. [Neutral Citation: 2026 INSC 319]
Appearances:
Appellant: T. R. B. Sivakumar, AOR.
Respondents: D. Kumanan, AOR Respondent-in-person.