Medical Negligence and the New Criminal Law Codes
By Arunima Rajan
New legal changes: Will doctors experience real relief or is it just a rehash of existing rules?
Last month,Home Minister Amit Shah dropped a significant policy bombshell in the parliament. Doctors have been handed a lifeline, as they're now off the hook for criminal prosecution in cases of death due to negligence. But wait, there's a twist in the tale. According to the Bharatiya Nyaya (Second) Sanhita (BNSS), the ambitious successor to the Indian Penal Code, the story isn't all rosy for the medical fraternity. If they err, they still face the prospect of up to two years in prison or a fine. That's milder than the five-year term recommended for other negligence-induced fatalities. It has stirred up a hornet's nest, raising critical questions about where to draw the line between professional error and criminal negligence. In this legal and ethical quagmire, the debate is just beginning.
Negligence has been defined by Oxford dictionary as lack of proper care and attention; careless behaviour. Malpractice has been defined as the careless, illegal or unacceptable behaviour by somebody in a professional or official position.
The Supreme Court of India, in Jacob Mathew v. State of Punjab and Another, defined negligence as: “Actionable Negligence consists in the neglect of the use of ordinary care or skill towards a person to whom the defendant owes the duty of observing ordinary care and skill by which neglect the plaintiff has suffered injury to his person or property.
Thus medical negligence is the commission or omission of an act by a medical professional or healthcare provider which deviates from the accepted standards or practice of the medical community, leading to an injury of the patient.
Laws that Govern Medical Negligence
According to Professor(Dr) SV Joga Rao, an advocate and healthcare law consultant at Legalexcel Attorneys, the major medical negligence laws can be classified in to three distinct categories:
a) Civil or Consumer Laws:
Under this category the aggrieved patient or any family member/s are entitled to institute a case or a Complaint before the Civil Court or Consumer Commission respectively. As per the Law, the Complainant is entitled to seek monetary compensation subject to the proof of alleged medical negligence. A complaint can be filed against the Hospital or Doctors or other personnel or all of them.
b) Criminal liability:
Criminal liability in cases of medical negligence is primarily governed by the provisions of the Indian Penal Code, 1860 (IPC). While the IPC does not explicitly define “medical negligence,” it provides a legal basis for holding healthcare professionals criminally liable for their actions or omissions. Notably, Section 304A of the IPC deals with cases involving the death of a person due to a rash or negligent act. This provision is frequently invoked in cases of medical negligence leading to a patient’s demise and can result in imprisonment for up to two years. Additionally, other general provisions of the IPC, such as Section 337 (causing hurt) and Section 338 (causing grievous hurt), are also utilised in the context of medical negligence cases. The distinction between civil and criminal liability hinges on the degree of negligence, with criminal liability typically requiring a higher threshold of recklessness or gross negligence.
c) Code of medical ethics, 2002:
Disciplinary action against medical practitioners is governed by the Indian Medical Council (IMC) (Professional Conduct, Etiquette, and Ethics) Regulations, 2002, formulated under the IMC Act, 1956. The IMC and State Medical Councils have the authority to take disciplinary measures against healthcare professionals for professional misconduct. Such misconduct can encompass a range of actions, including medical negligence. Disciplinary actions may include suspension or the permanent removal of a medical practitioner’s name from the medical register, thereby barring them from practising medicine. It’s important to note that professional misconduct is a broader concept that may encompass medical negligence, and the specifics of each case determine the disciplinary measures taken.
Consumer Protection Act and How it Complicated the Situation
The Legal advisor of Gleneagles Hospitals, Bengaluru explains that the consumer protection act has an impact on medical negligence. The Consumer Protection Act, 1986 has been replaced by Consumer Protection Act, 2019. The medical negligence cases come under the purview of 2019 as well. Owing to the fact that when compared to Civil Courts the Court fee to be paid for consumer cases is far less, hence it is the most sought-after remedy for aggrieved patients.
“Depending upon the consideration that is paid to the Hospital for medical negligence services the Complaint needs to be filed before the designated consumer commission. For instance, if the consideration paid is below Rs. 50 lakhs, the complaint needs to be filed before the District Commission. If it is above Rs. 50 lakhs and below two crores then the complaint needs to be filed before the State Commission. If the consideration paid is more than the above amount the complaint requires to be filed before the National Commission.
Ordinarily, the limitation period to file a complaint is two years. However, depending upon the nature and duration of injury or damage, the limitation period may get extended subject to “Discovery Rule”.
Expert opinion evidence is not mandatory. However, if the parties make out the consumer commission may permit furnishing of the same,” he elaborates.
But, what is the impact of medical negligence cases on doctors?
(a). Under criminal liability, the Doctor or the Hospital may be subjected to punishment in the form of imprisonment or fine or both.
(b). Under civil or consumer liability the Doctor or the Hospital may be subjected to monetary compensation.
(c). Under code of medical ethics, the Doctor may be given warning or either temporarily or permanently restricted from practice.
“Despite contrary statements appearing in the media about the bill with regard to Section 106 (dealing with rash or negligent homicide) of Bhartiya Nyaya (second) Sanhitha, 2023, only the punishment has been reduced from 5 years to 2 years along with fine, concludes Professor Rao.
According to a report in The Hindu, in September 2023 the IMA made a submission to the Parliamentary Standing Committee on the BNSS. “According to the submission, the IMA reported around 98,000 deaths per year due to medical negligence in contrast with 52 lakh medical negligence cases filed against doctors. Further, the IMA also asked that a law criminalising violence against doctors be included in the BNSS since “75% of doctors and paramedics face violence as per IMA,” states the report.
Dr RV Ashokan, President of IMA points out that decriminalisation of medical negligence and restricting it to Law of Torts is an important step to free the medical profession from the fear of criminal prosecution. “Crucial decisions in critical moments get influenced by a defensive medical approach. This freedom of medical profession is for the larger good of the patients and the society. Doctors are accountable on Torts,” he adds. A tort is considered as a civil wrong, a private wrong.
Long Standing Wish of Doctors Fulfilled?
Dr. Sonal Dixit, Regional Head- Medical Services, Manipal Hospital, Baner, Pune adds that the death of a patient under a doctor’s care is classified as criminal negligence under Section 304 A of the Indian Penal Code (IPC). However, much to the relief of practising doctors and the IMA, the government has proposed an amendment to the Criminal Law Bill to exempt doctors from criminal prosecution in cases of deaths due to medical negligence.
“Earlier if there was any unexpected outcome of treatment due to an oversight or an act of omission by the doctor it was categorised as a non-culpable homicide with up to 5 years of imprisonment. This was very harsh as doctors are not criminals and no doctor ever wants to harm his/her patients. Treating them as murderers was doing great injustice to them. Many times this was misused for extracting compensation as the actual mishap was a known complication of the disease and its treatment.
With the proposed amendment, such an offence has been made “cognizable” and “bailable”. Also the central government has introduced an official amendment that says “If such an act is done by a registered medical practitioner while performing a 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.” With this a long-standing wish of doctors to decriminalise them has been fulfilled,” she concludes.