Introduction
The Indian Parliament has recently enacted comprehensive criminal legislations, namely the Bharatiya Nyaya Sanhita, 2023 (replacing the Indian Penal Code, 1860, hereinafter referred to as “IPC”), the Bharatiya Nagarik Suraksha Sanhita, 2023 (replacing the Criminal Procedure Code, 1973), and the Bharatiya Sakshya Adhiniyam, 2023 (replacing the Indian Evidence Act, 1872). These legislative reforms, having received the assent of the President on December 25, 2023, are poised for enforcement pending publication in the official gazette. The legislative intent behind this initiative is a holistic transformation of criminal provisions, aligning them with the “Indian way of thinking” and shedding colonial-era laws. Although the legislations are yet to be enforced, a critical analysis is warranted to discern the forthcoming changes in the Indian legal landscape concerning crimes, the anticipated modifications in criminal procedures, and the envisaged alterations in the methods of evidence collection.
In the world of healthcare and medicine, discussions around medical negligence and its legal implications have always been at the forefront of debates and policy considerations. The new criminal law enactments mark a significant shift in how medical negligence is addressed and penalised, enabling praise as well as criticism from various quarters. When the scope and impact of professional accountability of medical professionals undergo such a re-evaluation, it becomes important to examine the impact of these new penal provisions. This article aims to unpack the revised medical negligence liabilities in the freshly minted criminal legislations, question the reasoning behind these legal changes, and assess how they affect medical practitioners and the broader medicinal landscape. Through this exploration, it shall be examined whether these legal shifts are a prudent step towards improving patient safety and fostering accountability, or whether they pose nuanced challenges which may require thoughtful consideration.
The Old Law
The IPC enabled the punishment of medical practitioners for negligence related deaths under Section 304A, causing death due to negligence which read:
304A. Causing death by negligence.—Whoever causes the 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 two years, or with fine, or with both.
The provision enabled punishment of doctors for medical negligence related deaths for a maximum of two years. In fact, all the other negligence related deaths – inclusive of traffic and industrial accidents not amounting to culpable homicide used to be clubbed under this provision and punished similarly. The law had been further shaped by landmark judgments such as Dr. Suresh Gupta v. Government of NCT of Delhi, (2004) 6 SCC 422, the principles under which were further reiterated, upheld and expanded in Dr. Jacob Mathew v. State of Punjab, (2005) 6 SCC 1. In the latter case, the Apex Court prescribed guidelines for medical negligence cases – that criminality in medical negligence cases need be attributed only in cases of gross negligence, intentional acts or omissions from the part of doctors. The case law also lays down that for attributing criminality, the professional standards of the medical profession and the expert opinions of other doctors in the field should be made a consideration to establish negligence.
Changes in the New Legal Landscape
The proposed new penal code titled the Bharatiya Nyaya Sanhita (“BNS”), 2023 proposes to differentiate medical negligence from other criminal offences of causing death due to negligence. Here, there is a clear distinction made between medical negligence deaths and other negligence based deaths as Section 106 of the BNS reads:
- (1) 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.
Explanation.— For the purposes of this sub-section, “registered medical practitioner” means a 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.
(2) Whoever causes death of any person by rash and negligent driving of vehicle not amounting to culpable homicide, and escapes without reporting it to a police officer or a Magistrate soon after the incident, shall be punished with imprisonment of either description of a term which may extend to ten years, and shall also be liable to fine.
We note that there is a clear distinction made between causing deaths due to negligence with an increased maximum punishment of upto five years of imprisonment, while medical negligence by a registered medical practitioner has been attributed a maximum punishment of maximum two years imprisonment of either description. In fact, the punishment for medical negligence is the same as the maximum punishment for causing death due to negligence given in the IPC, i.e. two years of imprisonment. What the BNS has done, is to clearly demarcate medical negligence cases to which the same punishment is imposed, while raising the maximum punishment for other cases to a maximum of five years. It is also noteworthy that there is a maximum punishment of ten years imprisonment prescribed for causing death by “rash and negligent driving of vehicle not amounting to culpable homicide, and escapes without reporting it to a police officer or a Magistrate soon after the incident”, aimed at deterring hit and run offences, which is also not applicable to medical negligence.
It is also clear that actions taken by a doctor in good faith shall not be an offence, as Section 26 of the BNS reproduces the corresponding section of the IPC, which reads:
- Nothing, which is not intended to cause death, is an offence by reason of any harm which it may cause, or be intended by the doer to cause, or be known by the doer to be likely to cause, to any person for whose benefit it is done in good faith, and who has given a consent, whether express or implied, to suffer that harm, or to take the risk of that harm.
Illustration: A, a surgeon, knowing that a particular operation is likely to cause the death of Z, who suffers under the painful complaint, but not intending to cause Z’s death, and intending, in good faith, Z’s benefit, performs that operation on Z, with Z’s consent. A has committed no offence.
Reasons for the changes
Medical practitioners across the country had been insisting on the need to protect doctors from frivolous prosecutions in medical negligence cases. Additionally, the law restricts application of the lower punitive measure to registered practitioners meeting requisite qualifications under the regulatory framework. This precision ensures standards of care are upheld while avoiding disproportionate hardship to healthcare professionals. The healthcare professionals’ demand for distinguishing their mistakes under medical negligence from that of other negligent based deaths, and clarifying the lack of mens rea in a doctor-patient interaction, has been met, but only to a certain degree. The remedy of civil compensation still applies to medical negligence cases and this is preferable to hospitals and doctors – their operations being covered under indemnity insurance.
Conclusion
In essence, the BNS modifications thoughtfully delineate medical negligence, acknowledging the societally vital role of healthcare providers. The changes endeavor to strike an equilibrium between patient safety and unjustified impedance of the medical community’s work. They signify a nuanced, context-sensitive approach to negligence, harnessing punitive measures to promote accountability while mindful of the complex realities of the healthcare domain.
