New Criminal Code and Medical Negligence

Medical malpractice is different from medical negligence. Medical negligence arises when a medical professional’s act or omission falls below the accepted standard of care, causing harm to the patient. It is reckless disregard/carelessness or unintentional lapse. This can encompass many situations whose implications can be severe, ranging from minor injuries to permanent disability or even death. No specific law in India exclusively defines medical negligence. However, the concept derives from broader principles of tort, contract, criminal, and judicial precedents. In the article by Megha Kaveri on the News Minute platform, Justice Denied: Why medical negligence goes unpunished in India, what can be done (1), the title itself is self-explanatory about the status of law. The introduction of section 106 in The Bharatiya Nyaya (Second) Sanhita (New Criminal Code),  2023 (BNS), marked a significant change in the legal landscape surrounding medical negligence in India.  A registered medical practitioner who causes death by negligence while performing a medical procedure can be imprisoned for up to two years and fined. This section of the BNS covers medical negligence, previously covered under Section 304A of the Indian Penal Code, 1860. The new law imposes a stricter punishment than the previous law, allowing only a fine or a two-year jail sentence. The Indian Medical Association (IMA), a leading body representing doctors in India, expressed strong reservations about the criminalization of medical negligence under Section 106. The article explores existing and new law along with the gravity of the medical malpractice issue.

Laws related to Medical Negligence

A registered medical practitioner has a medical qualification recognized by the National Medical Commission Act of 2019 under the new law. The Supreme Court of India, in cases such as Jacob Mathew v. State of Punjab (2005) and Kusum Sharma v. Batra Hospital (2010) defined three elements to qualify for medical negligence as:

1. Duty of Care: A doctor or medical professional owes a duty of care to the patient.
2. Breach of Duty: There must be a breach of this duty, failing to meet the standard of reasonable skill and care expected of a medical professional.
3. Causation: The breach must directly result in harm or injury to the patient.

While no law defines it explicitly, medical negligence is handled under:

• Consumer Protection Act: Treats negligence as a deficiency in service.
• Indian Penal Code (IPC): Criminalizes gross negligence under Section 304A (causing death by negligence).
• The Law of Torts: Handles civil liability for failure to exercise reasonable care.

In India, medical negligence is primarily governed by the following legal frameworks:

1. The Consumer Protection Act, 2019

Medical services are included in this Act’s definition of “service.” If a healthcare provider is negligent in delivering services, patients can file complaints in consumer courts for deficiency in service and seek compensation for harm caused by negligence, such as incorrect diagnosis, delayed treatment, or surgical errors.

2. The Law of Torts

Common law principles of negligence are applicable under the Law of Torts. Medical Practitioners have a duty of care toward their patients. Breach of this duty, resulting in harm, can lead to claims for compensation.

3. The Indian Contract Act, 1872

Medical negligence can also be interpreted as a breach of contract in cases where there is a contract (implied or explicit) between the patient and the healthcare provider.

4. Indian Penal Code (IPC), 1860

Section 304A: Punishes those who cause death by a rash or negligent act, including medical negligence.

Section 337 and 338: Address injuries caused by rash or negligent acts.

5. The Clinical Establishments (Registration and Regulation) Act, 2010

This Act mandates standards for clinical establishments. Non-compliance with these standards, leading to harm, may constitute negligence.

6. Relevant Guidelines and Judicial Precedents

The Supreme Court of India has issued several judgments defining medical negligence, including the Bolam Test (imported from English law), to determine whether a doctor acted by a practice accepted as proper by a responsible body of medical professionals.

These laws collectively create the legal framework for addressing medical negligence in India.

Problem with Complaints of Medical Negligence

The burden of proof for medical negligence in India lies with the plaintiff, who must prove that the medical professional breached their duty of care and caused harm to the patient. Medical negligence complaints in India are usually received by the State Medical Councils, where the accused doctors are registered. A complaint may also be filed with the police.  The State Medical Councils conduct inquiries and investigate the case with the help of a panel of expert doctors. The order of the State Medical Councils can be appealed to the MCI by the patient or the doctors. The punishment awarded by the MCI ranges from warning the doctor found guilty to removing the doctor’s name from the Indian Medical Register/State Medical Register for a specified period. The MCI order can also be appealed in a court of law by the aggrieved party. A Parliamentary report on the Indian Medical Council (Amendment) Bill 2013 highlighted the possibility of a conflict of interest between the inquiry team and the accused doctors in medical negligence cases. (2). However, experts have often emphasized the need for a panel with members from various walks of society to investigate medical negligence cases.

New Criminal Law Criminalizes Medical Negligence

Section 106 of the New Criminal Code focuses on criminalizing medical negligence that results in death. The section says “Whoever causes death of any person by doing any rash or negligent act not amounting to culpable homicide, shall be punished with imprisonment of either description for a term which may extend to five years, and shall also be liable to fine; and if such act is done by a registered medical practitioner while performing medical procedure, he shall be punished with imprisonment of either description for a term which may extend to two years, and shall also be liable to fine”

This section separately deals with cases of death caused by medical negligence and prescribes a prison sentence of up to two years and a fine. Under the new law, the imposition of a fine is mandatory. The latter part of the section applies only to registered medical practitioners if such death is caused while performing medical procedures.

The explanation of the section describes a registered medical practitioner as medical practitioner who possesses any medical qualification recognised under the National Medical Commission Act, 2019 and whose name has been entered in the National Medical Register or a State Medical Register under that Act.[1] The explanation is only the doctors registered with medical councils; in other words, the privilege is not available to medical students, interns, dentists, or AYUSH practitioners, and they will face imprisonment for up to five years (3).

The defense of a “bonafide act done with the consent of a person for his benefit” in case of death contained under section 88 of IPC Is retained as it is under section 26 of the new law.

IMA Concerns over Criminalization of Offence

The IMA argued that criminal prosecution would have a chilling effect on medical practice, discouraging doctors from taking risks or performing complex procedures for fear of unwarranted criminal charges. This could lead to a need for more qualified doctors willing to practice in high-risk specialties, ultimately reducing the quality of healthcare available to patients. The IMA requested the home ministry to explain sections 26 and 106 of the Act.  The body suggested that for a Registered Medical Practitioner to be held guilty of criminal medical negligence, it must be of such a high degree as to be ‘gross,’ supported by expert opinion. Otherwise, it may be presumed a medical accident, the reason for which cannot be conclusively determined. The organization also proposed a draft amendment Bill to consolidate and amend the New Criminal laws.

In Singapore, medical negligence is treated primarily as a civil matter rather than a criminal offense. It is categorized as a tort, where a healthcare professional may be liable for damages if they fail to meet the required standard of care, leading to harm or injury. Patients can seek compensation for negligence by satisfying the law. In the United States, medical malpractice cases are treated as civil claims and fall under tort law. They are addressed through lawsuits rather than as criminal offenses. The punishments or consequences for medical negligence vary based on the state and the case’s specifics. The World Health Organization (WHO) does not directly classify medical negligence as a criminal offense. Instead, the WHO focuses on improving patient safety by addressing systemic issues that lead to errors in healthcare delivery. Its primary goal is to prevent harm through training, robust health systems, and promoting a safety culture rather than criminalizing errors.

The stand point taken by MCI based on practices across globe is not out of place.

Medical Negligence so far has gone unpunished in India.

The MCI, while theoretically empowered to address medical malpractice, was often criticized for its inefficiency and lack of stringent enforcement. The establishment of the NMC is intended to address these shortcomings. However, the effectiveness of these reforms will depend on implementation, monitoring, and public awareness of their rights and the available grievance redressal mechanisms.

Proposed Amendments

IMA proposed following amendments in New Criminal laws:

1. Making the fine under section 106 optional and adding community service as punishment.
2. For making a Registered Medical Practitioner guilty of criminal medical negligence, the negligence must be of such a high degree as to be ‘gross supported by expert opinion. Otherwise, it may be presumed as an error of judgment, and the benefit of section 18 (accident) and section 26 (bonafide act with consent) will be given to the practitioner.
3. An offense under section 106(1) should be a non-cognizable offense.
4. A private complaint may not be entertained unless the complainant has produced prima facie evidence before the court as a credible opinion given by another competent doctor to support the charge of gross medical negligence by the accused Registered Medical Practitioner.
5. No court should take cognizance of an offense against a Registered Medical Practitioner unless a committee of experts constituted as per the guidelines issued by the National Medical Commission has found a case of gross negligence on the practitioner’s part.

Strangely, nowhere has the role of further training been emphasized by the provider. If the body needs to increase accountability- making fines optional could reduce the accountability framework, especially in cases involving victims who seek tangible compensation. Community service may not be a sufficient deterrent in cases of gross medical negligence. There is a risk of inconsistent interpretations of what constitutes “gross negligence” across cases. Victims may perceive this as preferential treatment for medical practitioners, leading to diminished trust in the healthcare system. The process may be perceived as needing more independence, as the NMC is a regulatory body mainly composed of medical professionals, potentially leading to conflicts of interest. Victims may feel alienated if they perceive the system as overly protective of practitioners.

Current Status

As of today, Section 106 of the New Criminal Code remains in effect, with the reduced maximum punishment of two years of imprisonment for medical negligence causing death. The proposed amendments are considered and may be presented as a Bill before the newly constituted parliament in the monsoon session.

The criminalization of medical negligence under Section 106 of the New Criminal Code has ignited a critical debate in India. While the provision aims to uphold accountability and deter negligence among medical professionals, the medical community has expressed valid concerns about its potential to affect healthcare quality and decision-making adversely. The proposed amendments to Section 106 of BNS draws on the Supreme Court’s ruling in Jacob Mathew v. State of Punjab (2005) and principles of medical ethics. However, in its current form, Section 106 risks impeding the balance between ensuring patient safety and fostering an environment conducive to high-quality medical practice. International practices suggest a focus on transparent proceedings to identify deviations from standard care, prioritizing fair compensation for patients, and reserving criminal penalties for only the most egregious cases. Ultimately, enhancing accountability through further training for doctors should remain a central focus to ensure patient safety and professional development.

References:

1. Singh, S. (2024, April 29). Over 5.2 mn medical malpractice cases filed in India annually, shows data. Business Standard.
2. Megha Kaveri, & Megha Kaveri. (2020, January 9). Justice denied: Why medical negligence goes unpunished in India, what can be done. The News Minute.
3. Section 106(1) Bharatiya Nyaya Sanhita, 2023