Bombay High Court
MURAD HASAN MULLAversusDR. JAYDEEP ARUN DATE
- Decided
- Disposal
- Allowed
Holding
The Court quashed the MCI’s order, finding it violative of natural justice and contrary to the settled law on medical negligence.
Summary
The petitioners, Dr. Jaydeep Date and Dr. Munir Sufi Mhaskar, were ordered by the Medical Council of India (MCI) to be removed from the Indian Medical Register for six months and three years respectively after an appeal by complainant Murad Hasan Mulla alleging medical negligence. The Maharashtra Medical Council (MMC) had earlier cleared the doctors, but the MCI Ethics Committee, without proper notice, specialist input, or detailed reasons, reversed that finding. The petitioners challenged the order via writ petitions, arguing violation of natural justice and that the findings conflicted with established Supreme Court jurisprudence on medical negligence (Bolam test, Jacob Mathew). The High Court held that the MCI’s procedure was fundamentally flawed, the adverse findings were contrary to settled law, and therefore quashed the impugned order, making the rule absolute.
Issues considered
- The MCI Ethics Committee complied with principles of natural justice in the proceedings against the doctors.
- Whether the doctors’ conduct amounted to medical negligence under the Bolam test and related Supreme Court precedents.
- Whether the lack of a urology specialist on the Ethics Committee rendered the decision invalid.
- Effect of the National Medical Commission Act, 2019 on the appellate jurisdiction over the MCI order.
- Whether the impugned order can be set aside despite the repeal of the Indian Medical Council Act, 1956.
Legislation cited
Subjects
- medical negligence
- natural justice
- Medical Council of India
- National Medical Commission Act
- Bolam test
- informed consent
- urology
- ethics committee
- writ petition
- removal from medical register
Judgment
WP_8830_13 & 87_14.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 8830 OF 2013
Dr. Jaydeep Arun Date … Petitioner
vs.
Medical Council of India and others … Respondents
WITH
CIVIL APPLICATION NO. 306 OF 2020
IN
WRIT PETITION NO. 8830 OF 2013
AND
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO. 87 OF 2014
Dr. Munir Sufi Mhaskar … Petitioner
vs.
Medical Council of India and others … Respondents
WITH
NOTICE OF MOTION NO. 291 OF 2019
WITH
NOTICE OF MOTION NO. 96 OF 2015
IN
WRIT PETITION NO. 87 OF 2014
---
Mr. Girish Godbole, Senior Advocate, a/w. Mr. Ishwar Nankani, Mr. Huzefa
Khokhawala and Mr. Kartik Gupta, i/b. M/s. Nankani & Associates for
petitioner in WP/8830/2013.
Mr. Mihir Desai, Senior Advocate, a/w. Mr. Rui Rodrigues and
Mr. Jainendra Sheth, i/b. Ms. Yogita Ramhulas Singh for petitioner in
WP/87/2014.
Mr. Ganesh Gole a/w. Mr. Viraj Shelatkar, Mr. Kunjan Makwana and
Mr. Ateet Shirodkar for respondent No.1 – MCI in both petitions.
Ms. Amruta Nerlekar, i/b. Mr. Rahul Nerlekar for respondent No.2 – MMC
in both petitions.
Mr. Mayuresh Modgi for respondent No.3 - complainant in both petitions.
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CORAM : MANISH PITALE &
SHREERAM V. SHIRSAT, JJ
Reserved on : 29th JULY, 2026
Pronounced on : 22nd SEPTEMBER, 2026
JUDGEMENT: (Per Manish Pitale, J):
. The petitioners are doctors aggrieved by an order dated
24.08.2013 passed by the respondent No.1 – Medical Council of
India (hereinafter referred to as MCI), whereby an appeal filed by
the respondent (complainant) was allowed, order of the respondent
No.2 – Maharashtra Medical Council (hereinafter referred to as
MMC) was effectively set aside and name of Dr. Jaydeep Date
(petitioner in Writ Petition No.8830 of 2013) was directed to be
removed from Indian Medical Register / State Medical Register for a
period of six months and registration of Dr. Munir Sufi Mhaskar
(petitioner in Writ Petition No.87 of 2014) was directed to be
removed from the said register for a period of three years. The
petitioners are hereinafter being referred to by their respective
names.
2. Rule was granted in both the petitions and by way of interim
relief, the effect of the impugned order remained stayed during the
pendency of these petitions. The petitions were taken up for final
hearing.
3. Complainant – Murad Hasan Mulla, who is respondent No.3 in
both the petitions, submitted a complaint before the respondent –
MMC, alleging medical negligence on the part of the petitioners –
doctors, resulting in suffering for the said complainant. The
complainant appears to have suffered from narrowing of urinary
tract for some time and he was facing persistent problem with
urination and in that context, he had consulted a number of doctors.
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4. The petitioner – Dr. Mhaskar claims that the complainant had
been consulting him and other doctors intermittently since the year
1991, with history of stone and urine related problems. On the basis
of documents placed on record, the petitioner – Dr. Mhaskar has
asserted that the complainant approached him in March 2005,
complaining of pain and intermittent urination. He had approached
with an ultrasonography report, showing a calculus in the left ureter
for which he was admitted in the said petitioner’s hospital.
Complainant underwent procedure for removal of left ureteric stone.
The petitioner – Dr. Mhaskar decided to remove the stone and in the
process, found that the complainant had a defect of urinary bladder
neck obstruction.
5. The said petitioner claims that upon orally informing
complainant’s family, consent was obtained for bladder neck incision
and catheter was placed, which was later removed on the fifth day
after procedure. It was found that after removal of catheter, the
complainant was unable to pass urine and therefore, the catheter
was reintroduced and another ultrasonography was conducted to
confirm whether the ureteric stone had passed off.
6. According to the petitioner – Dr. Mhaskar, by way of abundant
precaution, a cystoscopy was performed 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 on 03.04.2005. Eventually, the catheter was removed
on 08.04.2005 and according to the petitioner – Dr. Mhaskar, the
complainant had good urine stream thereafter.
7. In October 2005, the complainant approached the said
petitioner – Dr. Mhaskar, again complaining of decreased stream of
urine and ultrasonography revealed that a new small stone had
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developed in the prostatic urethra. On 09.11.2005, the complainant
again consulted the petitioner – Dr. Mhaskar, complaining of acute
urinary retention, due to which the petitioner performed emergency
urethrocystoscopy, which revealed a stricture in bulbus urethra.
8. According to the petitioner – Dr. Mhaskar, the said stricture
was opened and dilated by using an appropriate medical technique,
as stated in the petition. It is claimed that the calculus was retrieved
and a catheter was inserted for discharge of urine. According to the
petitioner – Dr. Mhaskar, these were the procedures he performed on
the complainant, for which according to him, he was medically
qualified and trained. The complainant seriously disputes the said
assertion. The petitioner – Dr. Mhaskar has stated that he was
shocked to receive a notice dated 14.01.2010, regarding complaint
dated 16.12.2009 submitted by the complainant before the
respondent – MMC regarding alleged medical negligence on his part.
9. As regards petitioner – Dr. Date, it is asserted by him in his
petition that after the complainant had undergone medical surgeries
in the year 2005 in Ratnagiri, he visited the said petitioner – Dr. Date
in the year 2006. It is stated that the complainant was admitted in a
hospital at Pune for surgery on 06.02.2006. A consent form was
signed by the complainant. According to the petitioner – Dr. Date, the
complainant had high bulbomembranous stricture. The said
petitioner – Dr. Date claims that considering the location of the said
stricture, he took the decision that the appropriate treatment would
be to put a graft/flap intraoperational to enlarge the blocked urinary
passage by using midline scrotal skin flap. The petitioner – Dr. Date
claims that this was an established surgical procedure for such
condition of the complainant.
10. Thereafter, the complainant approached the petitioner –
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Dr.Date in March 2007 with various complaints. According to the
said petitioner, one of the known complications of the said condition
is that the urethral stricture recurs. The grievance of the complainant
continued and he complained of complete urethral narrowing due to
which the petitioner – Dr. Date had to operate upon him on
02.10.2007 using ‘Buccal Mucosa dorsal onlay urethroplasty’. The
complainant had signed the consent form for undergoing the said
surgical treatment. But, when he persisted with his complaints, the
petitioner – Dr. Date claims that he had referred the complainant to
one Dr. Sanjay Kulkarni, said to be a world renowned expert in
stricture urethra surgery, for further advice, who even offered to give
consultation and perform surgery pro bono, if needed. But, for
reasons best known to the complainant, he did not take any
treatment from the said Dr. Kulkarni.
11. It is in this backdrop that the complainant filed the aforesaid
complaint dated 16.12.2009 before the respondent – MMC against
both the petitioners – doctors, alleging medical negligence. Upon
receiving notice from the respondent – MMC, the petitioners
appeared and placed their versions on record.
12. On 29.10.2012, the respondent – MMC passed its order,
rendering findings in favour of the petitioners. It was recorded that
complainant’s problem regarding narrowing of urethra, was chronic
for which the petitioners – doctors gave the appropriate treatment
and they never assured the complainant about 100% success rate. On
this basis, it was held that the petitioners – doctors did not violate
the code of medical ethics and hence, the respondent – MMC
exonerated the petitioners – doctors from the allegations made by
the complainant.
13. Aggrieved by the aforesaid order of the respondent – MMC, the
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respondent – complainant filed an appeal before the respondent –
MCI. The Ethics Committee of the respondent – MCI issued notice to
the petitioners – doctors on the appeal filed by the complainant. The
petitioners – doctors claimed that they received only the notice,
without copy of appeal and the documents filed therewith.
Nonetheless, they responded to the notice by placing their replies on
record, in order to demonstrate that the allegations of medical
negligence made by the complainant, were not justified. The
petitioner – Dr. Date even annexed a letter from the said Dr.Kulkarni
addressed to the respondent – MMC, when the matter was pending
before the said authority, stating that upon reviewing the records of
the treatment given by Dr. Date to the complainant, it was found that
the case was investigated and managed as per current practice
guidelines and Dr. Kulkarni also offered that he could give his
opinion in person, if required.
14. The aforesaid notice called upon the petitioners – doctors to
remain present for hearing on 23.03.2013. Accordingly, it appears
that the petitioners were present on the said date before the
respondent – MCI. Subsequently, the petitioners were communicated
the impugned order dated 24.08.2013 passed by the respondent –
MCI, allowing complainant’s appeal and inflicting the aforesaid
punishment of removal of name of petitioner – Dr. Date from the
Indian Medical Register / State Medical Register for a period of six
months from the date of the order and removal of name of petitioner
– Dr. Mhaskar from the said register for a period of three years.
15. The said order communicated that the Board of Governors of
the respondent – MCI, in the meetings held on 06.08.2013 and
07.08.2013, had approved the recommendations of the Ethics
Committee, based on the meetings of the Ethics Committee held on
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23.03.2013, 24.05.2013 and 25.05.2013. The petitioners – doctors
claimed that the said order suffers from violation of principles of
natural justice, as they were not heard, except for their presence on
23.03.2013 before the Ethics Committee and that therefore, the
findings rendered against them were behind their back.
16. Aggrieved by the said impugned order dated 24.08.2013
passed by the respondent – MCI, the petitioner – Dr. Date filed Writ
Petition No.8830 of 2013. On 25.09.2013, a learned Single Judge of
this Court granted Rule in the writ petition and after recording
reasons and finding that a prima facie case was made out by the said
petitioner, granted interim stay to the said impugned order.
17. The petitioner – Dr. Mhaskar filed Writ Petition No.87 of 2014,
wherein on 24.09.2013, a Division Bench of this Court granted stay
to the impugned order, pending admission of the petition. Thereafter,
notice was issued and interim order was continued. On 19.01.2015,
a Division Bench of this Court granted Rule in the petition and
interim relief was continued. The said writ petition was directed to
be tagged with Writ Petition No.8830 of 2013. The interim relief has
continued to operate during the pendency of these petitions.
18. Mr. Godbole, learned senior counsel appearing for the
petitioner – Dr. Date in Writ Petition No.8830 of 2013, submitted that
the impugned order passed by the respondent – MCI suffers from
violation of principles of natural justice, for the reason that the
petitioner was served only with the notice, and the copy of appeal
and documents filed with the appeal were never served upon the said
petitioner. It was further submitted that the petitioner could remain
present before the Ethics Committee of the respondent – MCI only on
23.03.2013. No notice was given with regard to the meetings held on
24.05.2013 and 25.05.2013, although the impugned order refers to
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the meetings of the Ethics Committee held on the said two dates
also, which culminated in the recommendations against the
petitioner.
19. It was further submitted that the Board of Governors of the
respondent – MCI, in its meetings held on 06.08.2013 and
07.08.2013, deliberated upon and approved the recommendations of
the Ethics Committee. At this stage also, no hearing was afforded to
the petitioner and the drastic order of removing his name from the
register for a period of six months, was passed against him. It was
specifically submitted that in the writ petition, a ground was raised
that the Ethics Committee did not have a member/doctor,
specializing in the field of urology. It was necessary that a specialist
in the said field was in the Ethics Committee for reaching the
conclusion as to whether the treatment given by the said petitioner,
was as per the current medical practice or not.
20. On this basis, it was submitted that there was flagrant violation
of the principles of natural justice. The procedure followed by the
Ethics Committee and the Board of Governors of the respondent –
MCI, deprived the said petitioner of a fair opportunity to defend
himself and on this ground alone, the impugned order deserved to be
set aside.
21. It was submitted that the respondent – MCI is now replaced by
the National Medical Commission (NMC), upon enactment of
National Medical Commission Act, 2019 (hereinafter referred to as
the NMC Act, 2019). It was submitted that upon enactment of the
NMC Act, 2019, the Indian Medical Council Act, 1956 (hereinafter
referred to as the IMC Act, 1956), under which the respondent – MCI
was established, was repealed and therefore now, the matter cannot
be remanded to the Ethics Committee of respondent – MCI for
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reconsideration.
22. It was further submitted that the entire regime of seeking
redressal and for disciplinary action against medical practitioners,
has undergone change as per NMC Act, 2019. Under Section 30
thereof, only a medical practitioner or professional, aggrieved by
action taken by the State Medical Council, can prefer an appeal
before the Ethics Committee and Medical Registration Board,
constituted under the NMC Act, 2019, with a further appeal before
the National Medical Council itself. There is no provision for an
aggrieved complainant to file appeal against an order of the State
Medical Council. Therefore, the option of remanding the matter back
for reconsideration, is not available with passage of time.
23. On this basis, the learned senior counsel appearing for the the
petitioner – Dr. Date submitted that in the light of the law clarified by
the Supreme Court in the context of medical negligence, this Court
itself, while exercising writ jurisdiction, can consider as to whether
the impugned order passed by the respondent – MCI can be
sustained or not.
24. In this context, he placed reliance on the judgement of the
Supreme Court in the case of Jacob Mathew vs. State of Punjab and
another, (2005) 6 SCC 1. Reliance was placed on various paragraphs
of the said judgement and it was submitted that so long as the
aforesaid petitioner had given one of the recognized treatments for
the ailment of the complainant, merely because he chose one line of
treatment in preference over the other, could not be a ground to hold
that the said petitioner was guilty of negligence. It was submitted
that the said petitioner had taken a considered decision as a
professional and therefore, he could not be held guilty of negligence.
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25. The Supreme Court, in the aforesaid judgement, had gone to
the extent of holding that an error of judgement would not constitute
medical negligence. Reliance was placed on the Bolam test applied
by the Supreme Court in the said judgement, to contend that the said
petitioner could not be charged with medical negligence.
26. Reliance was also placed on the judgement of the Supreme
Court in the case of Martin F. D’souza vs. Mohd. Ishfaq, (2009) 3
SCC 1, on the ground that since the said petitioner had shown
reasonable degree of skill and knowledge, he could not be charged
with medical negligence, merely because another professional having
greater skill and knowledge, would have prescribed different
treatment or would have operated in a different way.
27. The learned senior counsel for the said petitioner then relied
upon a series of judgements of the Supreme Court on the same lines,
including judgements in the cases of Kusum Sharma and others vs.
Batra Hospital and Medical Research Centre and others, (2010) 3
SCC 480, Arun Kumar Manglik vs. Chirayu Healthcare and Medicare
Private Limited and another, (2019) 7 SCC 401, Bombay Hospital
and Medical Research Centre vs. Asha Jaiswal and others , (2021) 19
SCC 1 and Dr. Neeraj Sud and another vs. Jaswinder Singh and
another, 2024 SCC OnLine SC 3069.
28. On the basis of the aforesaid submissions, it was contended
that the writ petition deserved to be allowed and the impugned order
passed by the respondent – MCI ought to be set aside.
29. Mr. Desai, learned senior counsel appearing for the petitioner –
Dr. Mhaskar submitted that he was adopting the contentions raised
on behalf of the petitioner – Dr. Date, as regards violation of
principles of natural justice, as the petitioner – Dr. Mhaskar also
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received only notice from the respondent – MCI for hearing on
23.03.2013. The said petitioner was also not provided with copies of
appeal and documents filed therewith by the complainant. Yet, the
said petitioner appeared before the said authority and tried to defend
himself as best as he could. The other grounds raised on behalf of
petitioner – Dr. Date were adopted for demonstrating the violation of
principles of natural justice. In this regard, reliance was also placed
on the Medical Council of India Regulations, 2000 and Indian
Medical Council (Professional Conduct, Etiquette and Ethics)
Regulations, 2002.
30. At the outset, the learned senior counsel appearing for
petitioner – Dr. Mhaskar, submitted that the complainant wrongly
alleged that the said petitioner had conducted surgery, which only a
qualified urologist could have conducted. It was emphasized that the
said petitioner, as a general surgeon, had performed the procedure of
cystoscopy with the complainant’s consent, as there was thickening
of urinary bladder of the complainant for which orifices was required
to be widened.
31. For the said purpose, the said petitioner had used a
ureteroscope, which he was qualified to use. This had helped the
complainant avoid urine retention and after the said investigative
techniques were applied by the said petitioner, the complainant did
have relief with normal urine flow. It was submitted that the
condition that the complainant suffered from i.e. urethral strictures,
was a condition known to have recurrence. After the condition had
recurred and the complainant was treated by the said petitioner on
the second occasion, he was advised to go to a specialist.
32. In this context, the learned senior counsel for the said
petitioner referred to a number of documents on record, showing the
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curriculum of Master of Surgery (General Surgery) at the time when
the said petitioner had acquired the qualification. By referring to
various documents on record, it was submitted that the said
petitioner had his postings in the Department of Uroloy, where he
had undergone training for various urological disorders. It was
emphasized that during the said posting, he had been trained in the
technique of urethral dilatation. He relied upon information received
under Right to Information Act, 2005, from the institution where he
had undergone training, which stated that during the period when
the said petitioner trained for the qualification of MS (General
Surgery), general surgeons also conducted urological procedures.
33. Reliance was placed on the information supplied under the
said Act by the District Government Hospital, Ratnagiri, wherein it
was stated that the doctors having qualification of MS (General
Surgery) indeed treated patients for urinary ailments like urinary
stones, bladder neck obstructions, urethral strictures, etc. On this
basis, it was submitted that the actual techniques and procedures
performed by the said petitioner on the complainant, were well
within his qualification and training. It was further submitted that
therefore, the respondent – MCI, in the impugned order, was not
justified in imposing the drastic punishment of removal from the
Register for a period of three years, on the ground that the said
petitioner was not qualified for the treatment that he gave to the
complainant.
34. It was emphasized that even in the appeal filed by the
complainant, no such ground was taken and yet, the said authority,
in its impugned order, in a cryptic manner and without any reasons,
imposed the drastic punishment upon the said petitioner. On this
basis, it was submitted that the impugned order deserved to be set
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aside.
35. The learned senior counsel appearing for the petitioner
Dr.Mhaskar further referred to a diagram of the urinary system
tendered for the purpose of explaining the procedure performed by
the said petitioner on the respondent complainant. It was
emphasized that a cystoscope or ureteroscope was used for diagnosis
to enter into the urinary bladder and for dilating the bladder neck
and to further explore the ureteric stone observed in the bladder. It
was submitted that the said procedure was well within the training
and competence of the aforesaid petitioner and it was not the act of
performing a surgery as claimed by the complainant. By referring to
the copies of documents placed on record with the petition, it was
emphasized that such cystoscopy was performed on patients in the
hospital of the said petitioner Dr. Mhaskar for a considerable period
of time before the said procedure was performed on the complainant.
As a general surgeon, the petitioner was qualified to perform such a
procedure and that he had sufficient experience to do so in the cases
of similarly situated patients. Reliance was also placed on other
documents showing the fact that the said petitioner had been an
observer in various hospitals and institutes undertaking urological
procedures such as ureteroscopy and other such procedures. On this
basis, it was submitted that the respondent – MCI, in the impugned
order, committed a grave error in reaching the conclusion that the
said petitioner did not possess necessary skills for performing the
said procedure. The said conclusion was reached in a cryptic manner
without assigning any reasons, while setting aside the order of the
respondent – MMC.
36. The learned senior counsel for the petitioner Dr. Mhaskar
relied upon judgement of the Supreme Court in the case of Vinod
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Jain Vs. Santokba Durlabhji Memorial Hospital, (2019) 12 SCC 229,
wherein the Court quoted with approval the observation in the case
of Hucks Vs. Cole, (1968) 118 New LJ 469, stating that a medical
practitioner is not to be held liable because things go wrong from
mischance or misadventure or through an error of judgement in
choosing one reasonable course of treatment in preference of
another. The Supreme Court also affirmed the test in such cases of
medical negligence to the effect that an adverse conclusion could be
drawn against the professional only if he adopted a course which no
professional person of ordinary skill would have adopted, had such a
person acted with ordinary care. It was submitted that applying the
said test, it would be evident that the impugned order is
unsustainable and that it deserves to be set aside.
37. On the other hand, Mr. Modgi, learned counsel appearing for
respondent complainant in both the writ petitions vehemently
opposed the submissions made on behalf of the petitioners. It was
submitted that the petitioner Dr. Mhaskar was obviously guilty of
medical negligence, for the reason that when he undertook the
procedure of cystoscopy, the complainant had given consent only for
removal of ureteric stone and there was no written consent
authorizing him to give a bladder neck incision or to treat bladder
neck obstruction. By doing so without the consent of the
complainant, the petitioner Dr. Mhaskar was guilty of negligence and
therefore, the impugned order was justified. It was submitted that
informed consent of the complainant ought to have been taken
before proceeding to perform such a procedure. Therefore, the
impugned order correctly recorded that even the diagnosis by the
petitioner Dr. Mhaskar was wrong, which led to unnecessary
complications and suffering for the complainant. The learned counsel
for the respondent complainant placed reliance on judgement of the
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Supreme Court in the case of Samira Kohli Vs. Dr. Prabha
Manchanda, (2008) 2 SCC 1.
38. While relying upon the said judgement, it was emphasized that
when the procedure was undertaken by the petitioner Dr. Mhaskar, it
was not an emergency situation and that an elective procedure was
being performed, thereby further demonstrating that the said
petitioner was guilty of medical negligence and that, he did not have
the skill to perform the procedure on the complainant.
39. On the question of violation of principles of natural justice, it
was submitted that the said petitioner was granted opportunity of
hearing and after considering the response to the appeal filed by the
complainant, the Ethics Committee of respondent – MCI deliberated
upon the same to render adverse findings against the said petitioner.
It was submitted that the said petitioner failed to demonstrate actual
prejudice caused to him due to alleged non-supply of the appeal
memorandum. The said petitioner had sufficient opportunity to
produce material in his defence, which he did produce, thereby
indicating that the ground pertaining to violation of principles of
natural justice is without any substance. There is no question of
remanding the matter for re-consideration, as such a step would be
an empty formality. In this context, reliance was placed on
judgement of the Supreme Court in the case of State Bank of Patiala
and others Vs. S. K. Sharma, (1996) 3 SCC 364.
40. As regards the contentions raised on behalf of the petitioner
Dr. Date, it was submitted that the said petitioner was clearly guilty
of medical negligence as he chose to use scrotal skin to bypass
urethral stricture and subsequently, used mucosal graft. Therefore,
the said petitioner used the last option first and when complications
occurred, he chose to use the first choice procedure. This in itself
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amounts to gross negligence on the part of the petitioner Dr. Date
and he cannot escape liability. It was submitted that due to the
aforesaid procedure performed negligently, the complainant had
suffered continuously, thereby indicating that no interference is
warranted in the impugned order.
41. As regards the allegations pertaining to the violation of
principles of natural justice, the contentions recorded hereinabove in
the context of the petitioner Dr. Mhaskar, were repeated and
reiterated. It was submitted that no prejudice was suffered by the
petitioner Dr. Date, considering the manner in which personal
hearing was granted by the respondent – MCI before passing the
impugned order. On this basis, it was submitted that both the writ
petitions deserve to be dismissed.
42. Mr. Gole, learned counsel appearing for the respondent – MCI
submitted that if the statute presently holding the field i.e. NMC Act,
2019 is taken into consideration, it is evident that the whole regime
of challenge to orders passed in disciplinary proceedings by State
Medical Councils has undergone change. As on today, under Section
30 of the NMC Act, 2019 a patient or a complainant does not have
the option of filing an appeal against an order of the State Medical
Council. Only an aggrieved medical practitioner or professional has
the opportunity of filing such an appeal. Therefore, even if this Court
were to hold that principles of natural justice were violated when the
impugned order was passed, under the NMC Act, 2019, no forum
would be available to the respondent complainant to pursue his
appeal.
43. In this context, attention of this Court was invited to Section
60 of the NMC Act, 2019 pertaining to repeal and savings. It was
submitted that on a proper application of the said provision, the
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remedy of appeal before the Ethics Committee of the then MCI could
be made available. It was indicated that certain pending and old
cases that were initiated and remained pending when the IMC Act,
1956 was repealed and NMC Act, 2019 came into force, are still
continuing. Therefore, this could be one option if the Court is of the
opinion that the proceedings need to be remanded in the light of
violation of principles of natural justice. It was submitted that the
petitioners would first have to make out the case of violation of
principles of natural justice as the record indicates that the Ethics
Committee of respondent – MCI did grant personal hearing to the
petitioners and they had sufficient opportunity to place their version
along with documents on record. The petitioners were certainly
aware about the issues raised by the respondent complainant against
them.
44. Mr. Nerlekar, learned counsel appearing for the respondent –
MMC submitted that this Court may pass appropriate orders in the
petitions. He informed this Court that the respondent complainant
had also filed a complaint before the National Consumer Disputes
Redressal Commission (NCDRC) bearing Consumer Case No.161 of
2014. Copy of an order dated 12.03.2019 was tendered wherein the
NCDRC, on the complainant agreeing, directed that the proceedings
in the said consumer complaint before the NCDRC would remain
stayed till disposal of these writ petitions. The proceedings were
adjourned sine die till disposal of the instant writ petitions.
45. In this backdrop, we have considered the rival submissions. In
the light of the said submissions, two aspects arise for consideration.
Firstly, the allegations pertaining to violation of principles of natural
justice raised on behalf of the petitioners and secondly, the specific
contention raised on behalf of the petitioners that the settled position
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of law with regard to medical negligence laid down by the Supreme
Court in numerous judgements was ignored by the respondent – MCI
while passing the impugned order. It was submitted that ignoring
such settled position of law and passing an order in the teeth of the
same is sufficient ground for setting aside the impugned order while
exercising writ jurisdiction.
46. In order to appreciate the rival submissions in the context of
the question of violation of principles of natural justice, this Court
finds that the procedure adopted by the respondent - MCI while
hearing and disposing of the appeals filed by the complainant needs
to be considered.
47. The petitioners have specifically asserted that they received
only the notice pertaining to hearing scheduled on 23.03.2013 before
the Ethics Committee of MCI on the appeals filed by the complainant.
It is specifically asserted on their behalf that the memorandum of
appeals and documents filed therewith were never served upon
them. This has not been denied by the respondents. The respondent
– MCI has not produced any material on record to show that copies
of the appeals and documents filed therewith were ever served upon
the petitioners. Instead a contention is raised on behalf of the
respondent complainant that even if that was the position on facts,
no prejudice was caused to the petitioners. We find that in the
absence of service of the copies of the appeals and documents filed
therewith, the petitioners were certainly handicapped in responding
to the same. It is a different matter that since the petitioners had
contested the issues raised by the respondent complainant before the
MMC, they were broadly aware about the issues that could be raised
by the complainant. It also appears that the petitioners did produce
their own material before the respondent – MCI on 23.03.2013 when
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they were called for personal hearing. But, it cannot be denied that
the petitioners were certainly handicapped in effectively responding
to the contentions that were raised in the appeals filed by the
complainant against them.
48. The petitioner Dr. Date specifically raised a ground in the writ
petition that none of the members of the Ethics Committee, which
heard the appeals, had any specialist from the field of Urology. This is
also not denied by the respondents. Therefore, we find that not a
single member of the doctors in the Ethics Committee was a urologist
and this is a significant aspect of the matter. If allegations pertaining
to procedures performed by the petitioners in the backdrop of
medical negligence were to be analyzed and decided, at least one
member of the Ethics Committee ought to have been an Urologist in
consonance with the principles of natural justice. Doctors not having
special knowledge of the field of Urology were perhaps not equipped
to consider the allegations and defences raised by the rival parties.
This position on facts also indicates violation of principles of natural
justice.
49. Apart from this, we find that the impugned order dated
24.08.2013 shows that the Ethics Committee conducted meetings on
23.03.2013, 24.05.2013 and 25.05.2013, followed by
recommendations placed for approval before the Board of Governors
of the respondent – MCI. The petitioners were put to notice with
regard to the meeting or hearing conducted only on 23.03.2013 and
the meetings dated 24.05.2013 and 25.05.2013 were held behind the
back of the petitioners. This situation is sought to be explained by the
respondents by contending that since number of appeals were placed
for consideration before the Ethics Committee of the MCI, the
appeals pertaining to the petitioners were taken up only on
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23.03.2013 and that other appeals were taken up for consideration
in the meetings held on 24.05.2013 and 25.05.2013.
50. We have perused the entire minutes of the meetings of the
Ethics Committee pertaining to all the appeals that were considered
and decided. The minutes of the meeting clearly show that all the
appeals were taken up on 23.03.2013 and findings were rendered in
these appeals on that very date. The entire minutes of meeting
covering all the appeals, including those concerning petitioners,
pertained to 23.03.2013. Therefore, the meetings held on
24.05.2013 and 25.05.2013 were clearly behind the back of the
petitioners, although recommendations were placed by the Ethics
Committee before the Board of Governors of the MCI based on
proceedings in all the three meetings dated 23.03.2013, 24.05.2013
and 25.05.2013. In this backdrop, we are not satisfied with the
explanation given on behalf of the respondents and it can be said
that the subsequent two meetings were held behind the back of the
petitioners, thereby further showing violation of the principles of
natural justice. At this stage, it would be appropriate to reproduce
the entire impugned order dated 24.08.2013 to analyze as to the
manner in which the Ethics Committee of respondent – MCI
rendered findings in the cases of the petitioners and as to how the
Board of Governors of MCI approved the same. The relevant portion
of the impugned order dated 24.08.2013 passed by the respondent –
MCI reads as follows:-
“Subject:- Appeal dated 29.12.2012 filed Mr. Murad Hasan
Mulla against Dr. Muneer Sufi Mhaskar and Dr. Jaydeep
Date.
Sir,
I am directed to inform you that the above matter was
considered by the Ethics Committee, Medical Council of
India, New Delhi at its meetings held on 23.03.2013 & 24 th &
25th May, 2013 and the following recommendation of the
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Ethics Committee was approved by the Board of Governors
at their meeting held on 6th & 7th August, 2013:-
‘The Ethics Committee considered the appeal filed by
Mr. Murad Hasan Mulla against Order dated 29.10.2012
passed by Maharashtra Medical Council. The Appellant Mr.
Murad Hasan Mulla had complained that he was suffering
from urethral narrowing and initially seen by Dr. Munner
Sufi Mhaskar and later on operated by Dr. Jaydeep Date. In
spite of assurance that he will be cured, he has not been
cured and problem has become worse.
The Ethics Committee noted that both the parties i.e.
Mr. Murad Hasan Mulla, Appellant and Dr. Munner Sufi
Mhaskar and Dr. Jaydeep Date, Respondents have appeared
before the Ethics Committee for personal hearing. The Ethics
Committee heard the deposition of both the parties in detail
and after going through all the relevant record/documents,
made following observations:-
1. Dr. Muneer Sufi Mhaskar
(i) Dr. Muneer Sufi Mhaskar had not made proper diagnosis of
the patient prior to the surgery,
(ii) He did the surgery without relevant investigation and skills
required for surgery which resulted in complication of
urethral stricture.
(iii) It was not a case of emergency but was an elective surgery
case which could have referred to urologist.
It constitutes gross professional misconduct on the part of Dr.
Muneer Sufi Mhaskar.
2. Dr. Jaydeep Date
Dr. Jaydeep Date used scrotal skin to bye-pass urethral
stricture without explaining to the patient about the
complications of hair growth, which is a known complication,
Subsequently, he used mucosal graft which should have been his
first choice. This act of commission professional misconduct on
the part of Dr. Jaydeep Date.
Decision
After detailed deliberation, the Ethics Committee was of
the view that treatment provided by both the doctors constituted
gross professional misconduct and medical negligence and,
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therefore, the Ethics Committee decided to remove the name of
Dr. Muneer Sufi Mhaskar for a period of THREE YEARS and the
name of Dr. Jaydeep Date for a period of SIX MONTHS from the
Indian Medical Register/State Medical Register from the date of
issue of the order of punishment by concerned Council.
Accordingly, the appeal is disposed off.’
In compliance to above decision, you are requested to
remove the names of Dr. Muneer Sufi Mhaskar (MMC-Reg. No.
51291) for a period of THREE YEARS and the name of Dr.
Jaydeep Date (MMC-Reg. No. 57282) for a period of SIX
MONTHS from the State Medical Register under intimation to
this Council.”
51. 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
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conducted in a perfunctory and hurried manner, resulting in the
cryptic impugned order, thereby further showing violation of
principles of natural justice.
52. Having reached the aforesaid findings, one option before this
Court was to set aside the impugned order only on the said ground
and to remand the proceedings for re-consideration. But, we find
that during pendency of these writ petitions, for about 13 years
before this Court, the IMC Act, 1956 was repealed under which the
Indian Medical Council (Professional Conduct, Etiquette and Ethics)
Regulations, 2002 were framed and the NMC Act, 2019 came into
force. Section 30 of the NMC Act, 2019 provides for remedy of
appeal only to the aggrieved medical practitioner or professional,
who may be aggrieved by an order of the State Medical Council and
it does not provide for such a remedy for the aggrieved
complainant / patient. Therefore, the proceedings can certainly not
be remanded to the Ethics and Medical Registration Board
constituted under the NMC Act, 2019 as it does not have any
jurisdiction to entertain an appeal at the behest of an aggrieved
complainant / patient. In such a situation, the respondent
complainant may perhaps have to challenge the original order of the
respondent MMC i.e. the State Medical Council in writ jurisdiction
before this Court.
53. It was suggested by the learned counsel appearing for
respondent – MCI that by taking recourse to Section 60 of the NMC
Act, 2019 pertaining to repeal and savings, this Court would perhaps
hold that since the present writ petitions can be treated as
proceedings in continuity with the appeals, that were disposed of by
the Ethics Committee of the then MCI, a direction could be issued for
remanding the matter to the Ethics Committee under Section 60(2)
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(d) of the NMC Act, 2019. The said option could perhaps be
exercised. But, the petitioners as well as the respondent complainant
insisted that the writ petitions be decided on merits.
54. As a matter of fact, the learned counsel for the respondent
complainant submitted that the petitioners had failed to demonstrate
any prejudice caused to them, as mere procedural violations ought
not to justify an order of remand. A reference to the judgement of
the Supreme Court in the case of State Bank of Patiala and others Vs.
S. K. Sharma (supra) upon which the complainant placed reliance,
shows that in some cases, invalidating an order on the basis of
violation of principles of natural justice may amount to negation of
justice. In cases of failure of justice, the impugned order could be set
aside. In the present case, although we have found hereinabove that
the petitioners have indeed raised substantial grounds to
demonstrate violation of principles of natural justice, they themselves
have insisted that this Court in writ jurisdiction may consider the
rival submissions on merits, as a long period of time has passed
during the pendency of these petitions. The petitioners assert that the
findings rendered by the respondent MCI in the impugned order are
wholly unsustainable in the light of the settled law with regard to the
question of medical negligence and therefore, this Court may decide
the writ petitions on merits.
55. In the light of the rival submissions made in this regard, we are
considering the validity of the impugned order on merits. In order to
do so, it would be appropriate to refer to the position of law as
clarified by the Supreme Court on the question of medical
negligence.
56. In the case of Jacob Mathew vs. State of Punjab and another
(supra), the Supreme Court elaborately discussed the law pertaining
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to medical negligence and referred to various aspects of the matter,
including the Bolam test. This test was formulated in the case of
Bolam Vs. Friern Hospital Management Committee, (1957) 1 W.L.R.
582. It was held in the said case that it would be sufficient if a
professional exercises ordinary skill of an ordinary competent person
exercising that particular art. The aforesaid test and other such tests
formulated in a series of judgements were noted in the aforesaid
judgement of the Supreme Court to lay down the law in respect of
medical negligence. The relevant portion of the said judgement reads
as follows:-
“18. In the law of negligence, professionals such as
lawyers, doctors, architects and others are included in the
category of persons professing some special skill or skilled
persons generally. Any task which is required to be
performed with a special skill would generally be admitted
or undertaken to be performed only if the person possesses
the requisite skill for performing that task. Any reasonable
man entering into a profession which requires a particular
level of learning to be called a professional of that branch,
impliedly assures the person dealing with him that the skill
which he professes to possess shall be exercised with
reasonable degree of care and caution. He does not assure
his client of the result. A lawyer does not tell his client that
the client shall win the case in all circumstances. A physician
would not assure the patient of full recovery in every case. A
surgeon cannot and does not guarantee that the result of
surgery would invariably be beneficial, much less to the
extent of 100% for the person operated on. The only
assurance which such a professional can give or can be
understood to have given by implication is that he is
possessed of the requisite skill in that branch of profession
which he is practising and while undertaking the
performance of the task entrusted to him he would be
exercising his skill with reasonable competence. This is all
what the person approaching the professional can expect.
Judged by this standard, a professional may be held liable
for negligence on one of two findings: either he was not
possessed of the requisite skill which he professed to have
possessed, or, he did not exercise, with reasonable
competence in the given case, the skill which he did possess.
The standard to be applied for judging, whether the person
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charged has been negligent or not, would be that of an
ordinary competent person exercising ordinary skill in that
profession. It is not necessary for every professional to
possess the highest level of expertise in that branch which
he practises. In Michael Hyde and Associates v. J.D. Williams
& Co. Ltd. [2001 PNLR 233 (CA)] Sedley, L.J. said that
where a profession embraces a range of views as to what is
an acceptable standard of conduct, the competence of the
defendant is to be judged by the lowest standard that would
be regarded as acceptable. (Charlesworth & Percy, ibid., para
8.03.)
19. An oftquoted passage defining negligence by
professionals, generally and not necessarily confined to
doctors, is to be found in the opinion of McNair, J. in Bolam
v. Friern Hospital Management Committee [(1957) 1 WLR
582 : (1957) 2 All ER 118 (QBD)] , WLR at p. 586 in the
following words: (All ER p. 121 D-F)
‘[W]here you get a situation which involves
the use of some special skill or competence, then
the test as to whether there has been negligence or
not is not the test of the man on the top of a
Clapham omnibus, because he has not got this
special skill. The test is the standard of the ordinary
skilled man exercising and professing to have that
special skill. A man need not possess the highest
expert skill … It is well-established law that it is
sufficient if he exercises the ordinary skill of an
ordinary competent man exercising that particular
art.’ (Charlesworth & Percy, ibid., para 8.02)
20. The water of Bolam [(1957) 1 WLR 582 : (1957) 2 All
ER 118 (QBD)] test has ever since flown and passed under
several bridges, having been cited and dealt with in several
judicial pronouncements, one after the other and has
continued to be well received by every shore it has touched
as neat, clean and a well-condensed one. After a review of
various authorities Bingham, L.J. in his speech in Eckersley
v. Binnie [(1988) 18 Con LR 1] summarised the Bolam
[(1957) 1 WLR 582 : (1957) 2 All ER 118 (QBD)] test in the
following words: (Con LR p. 79)
‘From these general statements it follows
that a professional man should command the
corpus of knowledge which forms part of the
professional equipment of the ordinary member of
his profession. He should not lag behind other
ordinary assiduous and intelligent members of his
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profession in the knowledge of new advances,
discoveries and developments in his field. He
should have such an awareness as an ordinarily
competent practitioner would have of the
deficiencies in his knowledge and the limitations
on his skill. He should be alert to the hazards and
risks in any professional task he undertakes to the
extent that other ordinarily competent members of
the profession would be alert. He must bring to any
professional task he undertakes no less expertise,
skill and care than other ordinarily competent
members of his profession would bring, but need
bring no more. The standard is that of the
reasonable average. The law does not require of a
professional man that he be a paragon combining
the qualities of polymath and prophet.’
(Charlesworth & Percy, ibid., para 8.04)
21. The degree of skill and care required by a medical
practitioner is so stated in Halsbury's Laws of England (4th
Edn., Vol. 30, para 35):
‘35. The practitioner must bring to his task a
reasonable degree of skill and knowledge, and
must exercise a reasonable degree of care. Neither
the very highest nor a very low degree of care and
competence, judged in the light of the particular
circumstances of each case, is what the law
requires, and a person is not liable in negligence
because someone else of greater skill and
knowledge would have prescribed different
treatment or operated in a different way; nor is he
guilty of negligence if he has acted in accordance
with a practice accepted as proper by a responsible
body of medical men skilled in that particular art,
even though a body of adverse opinion also
existed among medical men.
Deviation from normal practice is not necessarily
evidence of negligence. To establish liability on
that basis it must be shown (1) that there is a
usual and normal practice; (2) that the defendant
has not adopted it; and (3) that the course in fact
adopted is one no professional man of ordinary
skill would have taken had he been acting with
ordinary care.’
The abovesaid three tests have also been stated as
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determinative of negligence in professional practice by
Charlesworth & Percy in their celebrated work on
Negligence (ibid., para 8.110).
22. In the opinion of Lord Denning, as expressed in Hucks
v. Cole [(1968) 118 New LJ 469] a medical practitioner was
not to be held liable simply because things went wrong from
mischance or misadventure or through an error of judgment
in choosing one reasonable course of treatment in
preference of another. A medical practitioner would be liable
only where his conduct fell below that of the standards of a
reasonably competent practitioner in his field.
* * * * *
24. The classical statement of law in Bolam case [(1957)
1 WLR 582 : (1957) 2 All ER 118 (QBD)] has been widely
accepted as decisive of the standard of care required both of
professional men generally and medical practitioners in
particular. It has been invariably cited with approval before
the courts in India and applied as a touchstone to test the
pleas of medical negligence. In tort, it is enough for the
defendant to show that the standard of care and the skill
attained was that of the ordinary competent medical
practitioner exercising an ordinary degree of professional
skill. The fact that a defendant charged with negligence
acted in accord with the general and approved practice is
enough to clear him of the charge. Two things are pertinent
to be noted. Firstly, the standard of care, when assessing the
practice as adopted, is judged in the light of knowledge
available at the time (of the incident), and not at the date of
trial. Secondly, when the charge of negligence arises out of
failure to use some particular equipment, the charge would
fail if the equipment was not generally available at that
point of time on which it is suggested as should have been
used.
25. A mere deviation from normal professional practice is
not necessarily evidence of negligence. Let it also be noted
that a mere accident is not evidence of negligence. So also
an error of judgment on the part of a professional is not
negligence per se. Higher the acuteness in emergency and
higher the complication, more are the chances of error of
judgment. At times, the professional is confronted with
making a choice between the devil and the deep sea and he
has to choose the lesser evil. The medical professional is
often called upon to adopt a procedure which involves
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higher element of risk, but which he honestly believes as
providing greater chances of success for the patient rather
than a procedure involving lesser risk but higher chances of
failure. Which course is more appropriate to follow, would
depend on the facts and circumstances of a given case. The
usual practice prevalent nowadays is to obtain the consent
of the patient or of the person in-charge of the patient if the
patient is not in a position to give consent before adopting a
given procedure. So long as it can be found that the
procedure which was in fact adopted was one which was
acceptable to medical science as on that date, the medical
practitioner cannot be held negligent merely because he
chose to follow one procedure and not another and the
result was a failure.”
57. The aforesaid judgement of the Supreme Court has been
followed subsequently in a number of judgements. In the case of
Martin F. D’souza vs. Mohd. Ishfaq (supra), the Supreme Court was
concerned with a case wherein the doctor, against whom allegation
of medical negligence was made, had chosen a particular line of
treatment in preference over the other. In that context, the Supreme
Court considered a cross-section of judgements on the question of
medical negligence, including the aforesaid judgement in the case of
Jacob Mathew vs. State of Punjab and another (supra). Thereupon, it
was held as follows:-
“32. In Halsbury's Laws of England [Ed. : 4th Edn., Vol. 30,
para 35.], the degree of skill and care required by a medical
practitioner is stated as follows:
“35. Degree of skill and care required.—The
practitioner must bring to his task a reasonable
degree of skill and knowledge, and must exercise a
reasonable degree of care. Neither the very highest
nor a very low degree of care and competence,
judged in the light of the particular circumstances
of each case, is what the law requires, and a
person is not liable in negligence because someone
else of greater skill and knowledge would have
prescribed different treatment or operated in a
different way; nor is he guilty of negligence if he
has acted in accordance with a practice accepted
as proper by a responsible body of medical men
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skilled in that particular art, even though a body of
adverse opinion also existed among medical men.
Deviation from normal practice is not necessarily
evidence of negligence. To establish liability on
that basis it must be shown (1) that there is a
usual and normal practice; (2) that the defendant
has not adopted it; and (3) that the course in fact
adopted is one no professional man of ordinary
skill would have taken had he been acting with
ordinary care.”
(emphasis supplied)
33. Eckersley v. Binnie [(1988) 18 Con LR 1 (CA)]
summarised the Bolam [(1957) 1 WLR 582 : (1957) 2 All
ER 118] test in the following words:
“From these general statements it follows that a
professional man should command the corpus of
knowledge which forms part of the professional
equipment of the ordinary member of his
profession. He should not lag behind other
ordinary assiduous and intelligent members of his
profession in the knowledge of new advances,
discoveries and developments in his field. He
should have such an awareness as an ordinarily
competent practitioner would have of the
deficiencies in his knowledge and the limitations
on his skill. He should be alert to the hazards and
risks in any professional task he undertakes to the
extent that other ordinarily competent members
of the profession would be alert. He must bring to
any professional task he undertakes no less
expertise, skill and care than other ordinarily
competent members of his profession would
bring, but need bring no more. The standard is
that of the reasonable average. The law does not
require of a professional man that he be a
paragon combining the qualities of a polymath
and prophet.”
34. A medical practitioner is not liable to be held
negligent simply because things went wrong from mischance
or misadventure or through an error of judgment in
choosing one reasonable course of treatment in preference
to another. He would be liable only where his conduct fell
below that of the standards of a reasonably competent
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practitioner in his field. For instance, he would be liable if he
leaves a surgical gauze inside the patient after an operation,
vide Achutrao Haribhau Khodwa v. State of Maharashtra
[(1996) 2 SCC 634 : AIR 1996 SC 2377] or operates on the
wrong part of the body, and he would be also criminally
liable if he operates on someone for removing an organ for
illegitimate trade.
35. There is a tendency to confuse a reasonable person
with an error-free person. An error of judgment may or may
not be negligent. It depends on the nature of the error.”
58. Thereafter, in the case of Kusum Sharma and others vs. Batra
Hospital and Medical Research Centre and others (supra), another
Bench of the Supreme Court deliberated upon the question of
medical negligence and its various aspects. In that light, in the said
judgement, it was held as follows:-
“89. On scrutiny of the leading cases of medical negligence both
in our country and other countries specially the United Kingdom,
some basic principles emerge in dealing with the cases of medical
negligence. While deciding whether the medical professional is
guilty of medical negligence following well-known principles
must be kept in view:
I. Negligence is the breach of a duty exercised by
omission to do something which a reasonable man,
guided by those considerations which ordinarily
regulate the conduct of human affairs, would do, or
doing something which a prudent and reasonable man
would not do.
II. Negligence is an essential ingredient of the offence.
The negligence to be established by the prosecution
must be culpable or gross and not the negligence
merely based upon an error of judgment.
III. The medical professional is expected to bring a
reasonable degree of skill and knowledge and must
exercise a reasonable degree of care. Neither the very
highest nor a very low degree of care and competence
judged in the light of the particular circumstances of
each case is what the law requires.
IV. A medical practitioner would be liable only where his
conduct fell below that of the standards of a reasonably
competent practitioner in his field.
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V. In the realm of diagnosis and treatment there is scope
for genuine difference of opinion and one professional
doctor is clearly not negligent merely because his
conclusion differs from that of other professional
doctor.
VI. The medical professional is often called upon to adopt
a procedure which involves higher element of risk, but
which he honestly believes as providing greater
chances of success for the patient rather than a
procedure involving lesser risk but higher chances of
failure. Just because a professional looking to the
gravity of illness has taken higher element of risk to
redeem the patient out of his/her suffering which did
not yield the desired result may not amount to
negligence.
VII. Negligence cannot be attributed to a doctor so long as
he performs his duties with reasonable skill and
competence. Merely because the doctor chooses one
course of action in preference to the other one
available, he would not be liable if the course of action
chosen by him was acceptable to the medical
profession.
VIII. It would not be conducive to the efficiency of the
medical profession if no doctor could administer
medicine without a halter round his neck.
IX. It is our bounden duty and obligation of the civil
society to ensure that the medical professionals are not
unnecessarily harassed or humiliated so that they can
perform their professional duties without fear and
apprehension.
X. The medical practitioners at times also have to be
saved from such a class of complainants who use
criminal process as a tool for pressurising the medical
professionals/hospitals, particularly private hospitals or
clinics for extracting uncalled for compensation. Such
malicious proceedings deserve to be discarded against
the medical practitioners.
XI. The medical professionals are entitled to get protection
so long as they perform their duties with reasonable
skill and competence and in the interest of the patients.
The interest and welfare of the patients have to be
paramount for the medical professionals.”
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59. In the context of the present writ petitions, clause V, VI and VII
of the above-quoted paragraph assume particular significance. It is
relevant to note that the said case also pertained to an allegation that
the concerned surgeon had adopted an ‘anterior’ approach to the
surgery, as opposed to a ‘posterior’ approach for removal of a tumor.
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 in the cases of Arun Kumar Manglik vs.
Chirayu Healthcare and Medicare Private Limited and another
(supra), Bombay Hospital and Medical Research Centre vs. Asha
Jaiswal and others (supra) and Dr. Neeraj Sud and another vs.
Jaswinder Singh and another (supra). The judgement in the case of
Vinod Jain Vs. Santokba Durlabhji Memorial Hospital (supra) is also
on the same lines.
60. As regards judgement in the case of Samira Kohli Vs. Dr.
Prabha Manchanda (supra) relied upon by the learned counsel
appearing for the respondent complainant, we find that in the said
case, the concerned medical professional / surgeon ended up
removing uterus in the guise of removing ovaries / fallopian tubes
due to wrong diagnosis. It was also found that the said act of the
surgeon was well beyond the consent given by the patient and it
amounted to unauthorized surgery. We are of the opinion that the
said judgement would not apply to the facts of the present case in
respect of both the petitioners. The reasons for reaching the said
conclusion are being recorded hereinbelow.
61. As regards the petitioner Dr. Mhaskar, the principal allegation
against him and the findings rendered in the impugned order also
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pertain 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.
62. In order to properly appreciate the rival contentions in this
regard, it would be appropriate to first consider as to what was the
nature of the procedure performed by the petitioner Dr. Mhaskar. The
documents on record show that the said petitioner conducted the
procedure of cystoscopy in the light of the history of stones and urine
related ailments of the complainant. The documents on record show
that the respondent complainant was suffering from such ailments
from the year 1997 onwards and that he was consulting various
doctors and he consulted the petitioner Dr. Mhaskar in that regard. It
is in this backdrop that the complainant was admitted in the hospital
of the said petitioner in March 2005, complaining of pain and
intermittency of urine. The said petitioner proceeded to undertake
the procedure of cystoscopy for removal of ureteric stone. During the
performance of the said procedure, the said petitioner found that
there was a defect of obstruction in the neck of the urinary bladder
and accordingly, he performed a bladder neck incision.
63. Thereafter, the complainant again suffered from decreased
stream of urine and it was found that a further stone had developed
by October 2005. The petitioner Dr. Mhaskar undertook further
procedure in October - November 2005 as the complainant was
suffering from urinary retention and the procedure of
urethrocystoscopy was performed.
64. The respondent complainant has raised a grievance that when
consent was given only for cystoscopy in order to remove the stone,
the procedure of bladder neck incision could not have been
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unauthorizedly performed by the petitioner Dr. Mhaskar. It is alleged
that the said petitioner virtually performed surgery, although the
same could have been undertaken only by a Urologist / Specialist
and not a general surgeon like the petitioner Dr. Mhaskar.
65. In this regard, we have considered the contentions raised on
behalf of the petitioner Dr. Mhaskar 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. It is asserted that in order to perform
such procedures that can be said to be diagnostic and for treatment
also, a specialist surgeon or urologist is not required. We have
perused the documents placed on record on behalf of the petitioner
Dr. Mhaskar in this regard.
66. We find that the concerned medical college has certified that
urology was part of MS General Surgery course during the period
between 1984 and 1989 when the petitioner Dr. Mhaskar had taken
the said course. The curriculum of the same was placed on record,
which stated that during the posting in the Department of Urology,
the students of MS General Surgery course undertook training for
diagnostic cystoscopy, urethral dilatation and other such techniques.
This becomes significant in the light of the fact that the authorities of
the concerned medical college, where the petitioner Dr. Mhaskar
completed his MS General Surgery course, stated that the said
curriculum presently in vogue was the same as the curriculum when
the aforesaid petitioner had completed his MS General Surgery
Course. Thus, 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. It is
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also relevant to note 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.
67. Apart from this, the said petitioner has also placed on record
documents showing a number of patients treated in his hospital
between years 2000 and 2004, underwent cystoscopy as part of
diagnosis / treatment. Documents have been placed on record to
show that in the year 2004, the said petitioner was an observer in a
post-graduate institute in Coimbatore for urological procedures such
as urethrocystoscopy etc. We are of the opinion that the said
petitioner Dr. Mhaskar 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. It is evident that the said
petitioner Dr. Mhaskar did not perform surgery but he undertook the
procedure of cystoscopy and ureteroscopy for the purpose of
treatment of stone. In the process, when the said petitioner came
across the constriction in the bladder of the complainant, he
proceeded to perform bladder neck incision for smooth flow of urine.
We are of the opinion that during the course of performing the
procedure of cystoscopy for the stone in the urinary bladder when
the petitioner Dr. Mhaskar 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.
68. In such a situation, we do not find substance in the grievance
raised on behalf of the complainant that the said petitioner
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unauthorizedly performed the bladder neck incision and that consent
should have been taken again by waiting for the complainant to
come out of the effect of anesthesia. Applying the aforementioned
tests recognized by the Supreme Court in the judgements referred to
hereinabove, we find that adverse findings could not have been
rendered against the petitioner Dr. Mhaskar in the facts and
circumstances of the present case.
69. The impugned order passed by the respondent MCI does not
record any consideration, analysis or reasoning for reaching findings
against the petitioner Dr. Mhaskar. It is simply stated that the said
petitioner did not make a proper diagnosis. He performed ‘surgery’
without relevant investigations / skills and he should have referred
the case of the complainant to a urologist, as this was a case of
elective surgery and not emergency. We are of the opinion that the
petitioner Dr. Mhaskar was not granted sufficient opportunity to
defend himself and in any case, the aforesaid material with regard to
his qualification, competence and skill set was not at all considered
while reaching adverse findings against him.
70. This is to be appreciated in the light of the material placed on
record, which could not be denied by the respondents, that the
aforesaid urinary ailment of the complainant pertaining to urethral
strictures has a high rate of recurrence. Hence, adverse finding could
not have been rendered against the petitioner Dr. Mhaskar, only
because there was a recurrence of the said condition despite the
procedures undertaken by him on the complainant. It is to be noted
that the respondent – MMC had categorically held that the petitioner
Dr. Mhaskar did not violate any of the medical ethics and also
specifically noted the fact that the complainant was a chronic patient
of urethral stricture disease since 1997. In this situation, we find that
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the impugned order passed by the respondent – MCI against the
petitioner Dr. Mhaskar cannot be sustained, as it is in the teeth of the
position of law clarified by the Supreme Court, specifically noted
hereinabove. If the tests recognized and approved by the Supreme
Court are applied, we find that the finding of medical negligence
cannot be rendered against the petitioner Dr. Mhaskar and the
impugned order is in the teeth of the settled position of law. In writ
jurisdiction, this can certainly be a ground to interfere with the
impugned order.
71. As regards petitioner – Dr. Date, we find that the main
grievance of the complainant is that the said petitioner 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 is the basis for
alleging that the petitioner – Dr. Date was guilty of medical
negligence. In the impugned order also the respondent – MCI has
held against the said petitioner, on the said ground.
72. In the above quoted judgments of the Supreme Court, starting
from Jacob Mathew vs. State of Punjab and another (supra), it has
been laid down and reiterated that a Doctor cannot be held guilty of
medical negligence only because he chooses one course of action in
preference over another, so long as he performs his duty with
reasonable skill and competence. 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
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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. It is relevant to
note that in the case of Kusum Sharma and others vs. Batra Hospital
and Medical Research Centre and others (supra) in clauses V, VI and
VII of paragraph 89, it is categorically held that 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.
73. In the case of Martin F. D’souza vs. Mohd. Ishfaq (supra), 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. In the case of Jacob Mathew vs. State of Punjab and
another (supra), the Supreme Court in the above quoted paragraphs
of the said judgment, discussed in detail the tests and standards to be
applied while considering the allegation of medical negligence. It
was held therein that a finding of negligence could be rendered
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against a Doctor only if he either did not possess the requisite skill
which he professed to have possessed or such a Doctor did not
exercise the skill with reasonable competence and while judging so,
the standard to be applied is that of an ordinary competent person
exercising ordinary skill in that profession. It is not necessary for
every professional to possess the highest level of expertise in the
branch that he practices. In the said judgment, it was also
emphasized 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.
74. We are of the opinion that applying the said settled position of
law to the facts of the present case, petitioner – Dr. Date could not be
held guilty of medical negligence. Respondent – MMC being the State
Medical Council had rendered findings in favour fo the said
petitioner. By the impugned order, the respondent – MCI reversed the
findings. As noted hereinabove, 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.
75. It is also a matter of record that both the petitioners i.e. Dr.
Mhaskar and Dr. Date, while performing procedures on the
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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. We are conscious of the fact that in writ
jurisdiction, this Court cannot go into the merits of the findings
rendered by specialized bodies like the Ethics Committee of the
respondent – MCI, which has been approved by the Board of
Governors, but when clear procedural irregularity is demonstrated
and it is also demonstrated before this Court that the cryptic
reasoning adopted in the impugned order violates the settled
position of law, as noted hereinabove, writ jurisdiction can certainly
be exercised in favour of the petitioners to interfere with the
impugned order.
76. 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.
77. Rule is made absolute in these terms.
78. Pending civil applications and notices of motion also stand
disposed of.
(SHREERAM V. SHIRSAT, J.) (MANISH PITALE, J.)
MINAL Digitally signed by
MINAL SANDIP
SANDIP PARAB
PARAB
Date: 2026.09.22
15:20:35 +0530 Priya / Minal / Bipin
Priya / Minal / Bipin
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