Choosing One Course Of Treatment Over Another Not Medical Negligence: Bombay High Court
The Court found the Ethics Committee's findings "cryptic", and noted that subsequent meetings were conducted "behind the back of the petitioners" in violation of natural justice.
The Bombay High Court quashed an order by the Medical Council of India (MCI) that had removed two doctors, Dr. Jaydeep Arun Date and Dr. Munir Sufi Mhaskar, from the medical register. The Bench held that choosing one recognized medical procedure over another does not constitute professional misconduct or medical negligence. It further noted that the doctors exercised reasonable clinical judgment within their qualifications.
In the matter, the patient underwent a cystoscopy and urethral dilatation, a minor procedure performed under local anesthesia to inspect the bladder and widen a narrowed urethra. During the intervention, a small, non-bleeding mucosal tear occurred, leading to extraperitoneal urinary extravasation (leakage of urine into surrounding tissues). The doctors promptly aborted the procedure, inserted a Foley catheter to drain the urine, and administered antibiotics, successfully managing the complication without permanent injury.
A Division Bench of Justice Manish Pitale and Justice Shreeram V. Shirsat referring to settled principles and precedents, noted, “…a professional Doctor is not negligent merely because his conclusion differs from that of another professional Doctor, or that he honestly believes a particular procedure to have greater chances of success and in any case, such a Doctor cannot be held guilty of negligence merely because he chooses one course of action in preference to another course of action”.
“…the impugned order does not record detailed reasons at all for reaching the findings, which are cryptic in nature. In any case, a perusal of the impugned order shows that the only ground on which the adverse finding is rendered and it is held that petitioner – Dr. Date indulged in professional misconduct, is that he chose the procedure of using scrotal skin to bypass urethral strictures rather than using mucosal graft, which should have been his first choice. We find that the said cryptic reasoning is in the teeth of the settled position of law and this indeed is a good ground to exercise writ jurisdiction to interfere with the impugned order”, it noted further.
Senior Advocates Girish Godbole, Mihir Desai appeared for the petitioners and Advocate Ganesh Gole appeared for the respondent.
The complainant had suffered from a chronic urethral stricture condition since 1997 and was treated successively by Dr. Mhaskar, a general surgeon, in 2005, and later by Dr. Date, in 2006 and 2007. Dr. Mhaskar performed a cystoscopy for removal of a ureteric stone and, upon discovering a bladder-neck obstruction, performed a bladder-neck incision; Dr. Date later performed urethroplasty using a scrotal skin flap and subsequently a mucosal graft when complications recurred. The complainant alleged that both procedures were performed without proper diagnosis, beyond the scope of consent, and beyond the doctors' competence.
The Maharashtra Medical Council exonerated both doctors in October 2012, but the MCI’s Ethics Committee reversed this on August 24, 2013, ordering temporary removal of their registrations. The High Court stayed the decision, keeping the petitions pending for 13 years, during which the NMC Act, 2019 replaced the IMC Act, 1956.
The Court ruled the MCI's order invalid on both procedural and merit grounds:
- Procedural Flaws: The MCI violated natural justice by withholding appeal copies from the doctors, conducting meetings without notice, and lacking a specialist urologist on its committee.
- Lack of Negligence: Applying the Bolam test and Supreme Court precedents (Jacob Mathew, Martin D’Souza, Kusum Sharma), the Court held that selecting one recognized procedure over another is not negligent.
- Valid Clinical Judgment: Dr. Mhaskar’s cystoscopy fell within his training as a general surgeon, and Dr. Date’s surgical technique was a recognized method for treating urethral strictures, distinguishing it from non-consensual procedures like in Samira Kohli.
“In the present case, the thrust of the allegation regarding medical negligence against petitioner – Dr. Date is in respect of his choice of one procedure in preference over another. It is not even the case of the complainant that the procedure first chosen by the said petitioner was not even a recognized procedure for treatment of urethral stricture. The petitioner has produced medical literature recording that the aforesaid procedure that he undertook as the first choice procedure is well recognized and that it has advantages, while the complainant has produced medical literature recording that the said procedure could be said to be the last option. Either way, it cannot be denied that the procedure adopted by the petitioner – Dr. Date, while performing surgery on the complainant as the first choice procedure, is indeed a well recognized surgical procedure for treating urethral strictures. We are of the opinion that in such a situation, in terms of the law laid down by the Supreme Court in the aforementioned cases, the petitioner – Dr. Date cannot be held guilty of medical negligence”, the Bench noted.
The Court allowed both writ petitions, quashed the MCI's order dated August 24, 2013, and made the Rule absolute, disposing of pending applications and notices of motion.
Cause Title: Dr. Jaydeep Arun Date v Medical Council of India and Others (Neutral Citation: 2026:BHC-AS:38675)
Appearances:
Petitioner: Girish Godbole, Senior Advocate, Mihir Desai, Senior Advocate, Ishwar Nankani, Huzefa Khokhawala and Kartik Gupta, instructed by M/s. Nankani & Associates.
Respondent: Ganesh Gole, Viraj Shelatkar, Kunjan Makwana and Ateet Shirodkar, Advocates.