Choice of one procedure over another not negligence: Bombay HC quashes medical council order removing 2 doctors from medical register
Mumbai: Reiterating the Supreme Court's observation that a doctor cannot be held guilty of negligence merely because he chooses one course of action in preference to another course of action, the Bombay High Court quashed an order passed by the erstwhile Medical Council of India (MCI) that had removed the names of two doctors from the medical register.
Erstwhile MCI, now the National Medical Commission (NMC), had taken action against those two doctors after holding them negligent during the treatment of a patient who underwent a cystoscopy and urethral dilatation for inspection of the bladder and widening a narrowed urethra. During the procedure, the patient developed urinary extravasation (leakage of urine into the surrounding tissues).
Immediately, the treating doctors aborted the procedure, inserted a Foley catheter for draining the urine, and administered antibiotics.
In its order, the MCI held the doctor guilty for choosing the procedure of using scrotal skin to bypass urethral strictures rather than using a mucosal graft, which should have been his first choice.
However, the HC bench of Justices Manish Pitale and Shreeram V. Shirsat held the reasoning "cryptic". Referring to the settled principles and precedents, including the Supreme Court's rulings, the High Court bench observed, "...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."
"In the case of Martin F. D’souza vs. Mohd. Ishfaq, the Supreme Court went to the extent of holding that a Doctor is not liable to be held negligent, simply because things go wrong from mischance or misadventure or through an error of judgement or that, the Doctor chooses one reasonable course of treatment in preference to another...applying the said settled position of law to the facts of the present case, petitioner – Dr. *** could not be held guilty of medical negligence," held the HC bench.
"...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. *** 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," the High Court bench clarified.
Case Background:
Since 1991, the patient/complainant had been suffering from a chronic urethral stricture condition and was treated successively by a general surgeon in 2005. The surgeon, after examining an ultrasound report brought by the patient, noticed a calculus in the left ureter and decided to remove it by cystoscopy. During the procedure, he found that the patient had a defect of urinary bladder neck obstruction and performed a bladder-neck incision.
A catheter was placed during the process, and when it was removed on the fifth day, the complainant was allegedly unable to pass urine. Therefore, the catheter was reintroduced, and another ultrasonography was conducted to confirm whether the ureteric stone had passed. Following this, the doctor performed a cystoscopy to ensure that the stone was not stuck in the urethra. The cystoscopy revealed that there was no obstructing prostatic urethral stone and therefore, the complainant was discharged. Eventually, the catheter was removed, and the complainant had a good urine stream thereafter.
In October 2005, the complainant approached the petitioner doctor again with complaints of decreased stream of urine, and ultrasonography revealed that a new small stone had developed in the prostatic urethra. Again, when the patient approached the petitioner-doctor with acute urinary retention, the petitioner-doctor performed emergency urethrocystoscopy, which revealed a stricture in the bulbus urethra. The said stricture was opened and dilated using an appropriate medical technique, claimed the petitioner. The doctor submitted that the calculus was retrieved and a catheter was inserted for discharge of urine.
The other doctor submitted in his plea that after undergoing medical surgeries in 2005, the patient visited him in 2006. The patient had a high bulbomembranous stricture, and after considering its location, the doctor decided to perform an intraoperative graft/flap to enlarge the blocked urinary passage using a midline scrotal skin flap. The petitioner claimed that this was an established surgical procedure for such a condition of the complainant.
In March 2007, the patient returned to the second doctor with the continued problems, and he complained of complete urethral narrowing, due to which the petitioner-doctor decided to operate upon him using ‘Buccal Mucosa dorsal onlay urethroplasty’. After the consent forms were signed, the doctor referred him to another expert in stricture urethra surgery for further advice. Even though the expert offered to give consultation and perform surgery pro bono, the complainant did not take treatment from him. In this backdrop, the complainant filed a complaint before the MMC against the petitioner doctors alleging medical negligence. The complaint had alleged that both the doctors had performed the procedures without proper diagnosis, beyond the scope of the consent and beyond the competence of the doctors.
After considering the matter, the Maharashtra Medical Council exonerated both the doctors in October 2012. However, this order was reversed by the Ethics Committee of MCI on August 24, 2013. The erstwhile MCI ordered temporary removal of the doctors' registration. This decision was stayed by the High Court. The plea before the High Court was kept pending for 13 years, during which the NMC Act, 2019 replaced the IMC Act, 1956.
Observations by the High Court:
The HC bench perused the entire minutes of the meetings of the MCI Ethics Committee regarding all the appeals that were considered and decided. It found procedural flaws in the MCI's judgment procedure, noting that the Council violated natural justice by withholding appeal copies from the doctors, and conducting meetings without notice. The Court also took note of the fact that the MCI committee did not have a specialist urologist.
Referring to the MCI order, the HC bench observed, "A bare perusal of the above-quoted impugned order shows the cryptic manner in which the Ethics Committee reached findings against both the petitioners. It is simply recorded that the Ethics Committee heard the deposition of parties and after going through the relevant record, the findings were rendered. Although we are conscious of the fact that the Ethics Committee of the respondent – MCI was not expected to render a judgment or order as if a court or a tribunal was considering an appeal, but the least that was expected from the Ethics Committee was recording of reasons why it reached certain conclusions and findings against the petitioners."
"Although the findings are adverse to the petitioners and drastic punishment of removal of names from the Register for different periods has been imposed on them, no reasons have been recorded for the same. This is all the more crucial when the Ethics Committee of the respondent – MCI allowed the appeals and reversed the findings that were rendered in favour of the petitioners by the State Medical Council i.e. the respondent MMC. While passing an order of reversal, the Ethics Committee was all the more required to record reasons for reaching findings. In that light, we find substance in the contentions raised on behalf of the petitioners that the hearing on 23.03.2013 was conducted in a perfunctory and hurried manner, resulting in the cryptic impugned order, thereby further showing violation of principles of natural justice," it noted.
The Court also relied on the principles of medical negligence laid down by the Supreme Court in the case of Jacob Mathew vs State of Punjab. Reliance was also placed on the Apex Court order in the case of Martin F. D’souza vs. Mohd. Ishfaq, and Sharma and others vs. Batra Hospital and Medical Research Centre and others.
"The Supreme Court held that the surgeon / doctor choosing one approach over the other could not be the basis for alleging medical negligence, so long as both the approaches could be said to be recognized approaches. The said position of law was subsequently followed in the judgements...," observed the HC bench.
Regarding the first doctor, the Court noted that the principal allegation against him and the findings rendered in the impugned order also pertained to his lack of qualification and skills to perform the procedure that he did upon the complainant and that he made an improper diagnosis. It was also alleged that the procedure performed by him was beyond the consent given by the complainant.
The complainant had argued that when consent was given only for cystoscopy to remove the stone, the procedure of bladder neck incision could not have been unauthorizedly performed by the petitioner-doctor. It was alleged that the petitioner-doctor performed the surgery even though the same could have been undertaken only by a Urologist/Specialist and not a general surgeon.
On the other hand, the doctor argued that cystoscopy is a procedure performed by general surgeons and that during the training imparted for the Post Graduate Course of Master of Surgery, the posting in the Urology Department facilitates training for undertaking such procedures like cystoscopy. The doctor asserted that to perform such procedures that can be said to be diagnostic and for treatment also, a specialist surgeon or urologist is not required.
The bench took note of the curriculum of the MS General Surgery course of the said institute during the period between 1984 and 1989. "...there is sufficient material on record to indicate that MS General Surgery qualified general surgeons are given training for conducting the procedure of cystoscopy and urethral dilatation," noted the HC bench.
Further, the Court observed that the District Government Hospital of Ratnagiri has further certified that doctors having qualifications of MS General Surgery regularly treat patients of urinary stones, bladder neck obstructions and urethral strictures in the Civil Hospital at Ratnagiri. It also took note of the documents placed on record showing a number of patients treated in the petitioner-doctor's hospital between the years 2000 and 2004, who underwent cystoscopy as part of diagnosis/treatment.
Taking note of these, the HC bench observed, "We are of the opinion that the said petitioner Dr. *** has placed on record sufficient material to indicate that the procedure undertaken by him was well within his qualification, training and skill set as a general surgeon having qualification of MS General Surgery.... during the course of performing the procedure of cystoscopy for the stone in the urinary bladder when the petitioner Dr. *** proceeded to perform bladder neck incision, it was a professional decision taken by him within the parameters of his qualification, training and skill set for the benefit of the patient i.e. the complainant."
In this context, the Court also noted that while MCI does not record any consideration, analysis or reasoning for reaching findings against the petitioner, MMC had categorically held that the petitioner did not violate any of the medical ethics.
Regarding the second petitioner-doctor, the Court noted that the main grievance of the complainant was that the doctor chose to use scrotal skin to bypass the urethral stricture, although the said procedure is the last choice procedure in such cases. Thereafter, the said petitioner chose to use the mucosal graft when complications arose, which is always the first choice procedure. This was the basis for alleging that the doctor was guilty of medical negligence. In its order as well, MCI held the doctor negligent on the said ground.
The HC bench referred to the Judicial precedents set by the Apex Court, which reiterated that a Doctor cannot be held guilty of medical negligence only because he chooses one course of action in preference to another, so long as he performs his duty with reasonable skill and competence.
Accordingly, the HC bench observed,
"In the present case, the thrust of the allegation regarding medical negligence against petitioner – Dr. *** 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. ***, 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. *** cannot be held guilty of medical negligence."
The High Court reiterated the Supreme Court's findings that it is not necessary for every professional to possess the highest level of expertise in the branch that he practices. It was also emphasised by the Apex Court that the question as to which of the available courses of action would be more appropriate in a given set of facts and circumstances has to be left to the judgment of the Doctor and so long as he performs his duty with reasonable competence, the finding of medical negligence cannot be rendered. Accordingly, the HC bench held that the second petitioner-doctor could not be held guilty of medical negligence.
Granting relief to the doctors, the HC bench set aside the MCI order and observed, "It is also a matter of record that both the petitioners i.e. Dr. *** and Dr. ***, while performing procedures on the complainant had taken his consent. The material on record belies the findings rendered by the respondent – MCI in the impugned order. Therefore, we are inclined to exercise writ jurisdiction to interfere with the impugned order...In view of the above, writ petitions are allowed. Consequently, the impugned order dated 24.08.2013 passed by respondent – MCI is quashed and set aside."
To view the order, click on the link below:
https://medicaldialogues.in/pdf_upload/2026/09/24/bombay-hc-dr--vs-mci-476851.pdf
