This article has been written by Suruchi Kumari, a second -year student pursuing LL.B. from the Campus Law Centre, Faculty of Law, University of Delhi.
Abstract
Doctors’ Indignation and the Changed Definition of
Medical Negligence Covered under
Bharatiya Nyaya Sanhita, 2023
This article’s main objective is to thoroughly examine how the Indian penal code’s replacement, the Bharatiya Nyay Sanhita, redefines medical negligence in light of physicians’ indignation. The article begins by outlining medical negligence and highlighting the several legal frameworks that it falls under, including the consumer protection act, civil law, and criminal law. It continues by citing BNS Act’s Section 106. The article is finished by highlighting the worries that doctors have regarding the new BNS statute and with a conclusion.
Keywords – Doctors; medical; negligence; registered
Introduction
The three criminal laws—Bharatiya Nagarik Suraksha Sanhita, Bharatiya Nyay Sanhita, and Bharatiya Sakshya Adhiniyam—were passed with a few revisions and modifications in 2023, were published on December 25, 2023, in the Official Gazette. It has been enforced on July 1, 2024. There have been claims of a rise in unresolved cases, low conviction rates, and inadequate use of technology. As the Indian criminal justice system has struggled to keep up with technological advancements, according to lawmakers, it is important to modernise the criminal system. These three pieces of legislation purport to “decolonize” British criminal laws. To support this legal reform initiative, the Union Government has frequently cited the language of decolonization, justice, and citizen-centric legislation. Union Home Minister Amit Shah stated during the winter session of parliament that if someone opposes the government, he shouldn’t be punished as it’s his freedom of speech. If anyone works against the country, he or she must not be spared and must be given the strictest punishment,[1] highlighting the fact that criminal law bills will guarantee victim-centric justice. The act has received praise and criticism in the same magnitude. The Indian Medical Association (IMA) has announced a month-long campaign that will take place in July and August, 2024. Doctors have been against the adoption of Bharatiya Nyaya Sanhita, which involves redefining medical negligence. It is essential to comprehend the concept behind it in order to comprehend the worries expressed by doctors.
Medical Negligence
The test was established in the 1957 ruling in Bolam v. Friern Hospital Management Committee. [2]. The bolam test requires the claimant to demonstrate that the clinician’s actions deviate from the accepted norm of care established by other medical professionals in the claimant’s field in order to establish negligence. It is not applicable to any of the subsequent:
- Letting a patient know about the suitable treatment alternatives that are accessible
- Letting the patient know about the procedure’s possible dangers
- Simple diagnosis choices
- Guidance that is considered to be non-medical
When making clinical judgements requiring clinical ability, such as diagnosing an illness, the bolam test is applicable. In Jacob Mathew v. State of Punjab, it was stated that the test laid down in the ruling in Bolam v. Friern Hospital Management Committee is generally acknowledged to be the determining factor for the quality of care expected of professionals in general and medical professionals in particular. It has consistently been approved by Indian courts and used as a yardstick for evaluating claims of medical negligence. In a tort case, the defendant only needs to demonstrate that the level of care and expertise obtained was comparable to that of a regular, competent medical professional using a regular level of professional ability. To be exonerated of a negligence allegation, a defendant must only have behaved in conformity with accepted standards of behavior.[3]
Simply put, negligence is the inability to use reasonable caution. It happens when a medical professional doesn’t perform up to the standards expected of them. The following are the three components of negligence:
- The plaintiff is entitled to a duty of care from the defendant.
- This duty of care has been violated by the defendant.
- This breach has caused harm to the plaintiff.
Negligence in Criminal and Civil Law
In Jacob Mathew v. State of Punjab[4], it was held that there are differences between the criminal and civil legal interpretations of negligence. In criminal law, carelessness may not always equate to negligence, as it does in civil law. Mens rea must be proven in order for negligence to be considered a crime. In order for an act to qualify as criminal carelessness, the level of negligence must be much higher—that is, gross or extremely high. In civil law, negligence that is neither egregious nor of a higher degree may give rise to a lawsuit, but it cannot be the basis for one. Although Sec. 304-A, I.P.C.( replaced with BNS act), does not include the word “gross,” it is well established that in criminal law, carelessness or negligence must meet certain high standards in order to qualify as such. It is necessary to interpret the phrase “rash or negligent act” as occurring in Sec. 304-A, I.P.C., as qualified by the word “grossly.” It must be demonstrated that the accused did something or failed to do something that, under the circumstances, no medical professional in his reasonable senses and caution would have done or failed to do in order to prosecute a medical professional for negligence under criminal law. The doctor who is accused should have taken a risk that would have made the damage that was most likely imminent. Res ipsa loquitur is only an evidentiary rule that applies to civil law, particularly in tort proceedings, and it assists in establishing who bears the burden of proof in negligence-related lawsuits. It cannot be used to establish negligence culpability in the context of criminal law in and of itself. The application of res ipsa loquitur in a criminal negligence trial is restricted, if it applies at all.
Medical Professionals under the Consumer Protection Act
In Indian Medical Association v. V.P. Shantha [5], the Supreme Court expanded the definition of “service” to encompass the medical field in accordance with the Consumer Protection Act. They maintained that the following factors would classify someone seeking medical care as a “consumer”:
- The service was not offered for free or in exchange for a small registration charge; if the service was provided for free, the costs were waived due to the patient’s incapacity to pay;
- The hospital is private.
- The service was paid for by an insurance company.
Patients can register complaints with the District, State, and National Consumer Redressal Commissions regarding medical providers’ lack of quality care.
Bharatiya Nyaya Sanhita’s Definition of Negligence
The Indian Penal Code (IPC) previously dealt with the provision of death by reckless and careless act under Section 304A; however, now Section 106 of the Bharatiya Nyaya Sanhita (BNS) deals with negligence.
According to Section 106[6],
(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 the death of any person by rash and negligent driving of a 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 a fine.
Previously, negligence was covered under 304A of the Indian penal code. The role of registered medical practitioners was not specifically addressed in IPC Section 304A. BNS Section 106(1) identifies situations in which a licensed healthcare professional, acting negligently, results in a patient’s death. The sentence of jail in these situations is different from that of other negligent behaviours. Criminal intent is a prerequisite for the existence of a crime (mens rhea). Only under civil law (the Law of Tort) may doctors be held accountable in the absence of criminal intent.
Issues Pertaining to Medical Negligence Covered under the BNS Act
Stricter punishment
The new law imposes a five-year jail sentence and a fine on doctors found guilty of negligence that does not constitute culpable homicide. Previously, there was either a fine or a two-year jail sentence under the Indian Penal Code.
Misuse of the law
The problem is that “medical negligence” is hard to properly investigate, and a lot of doctors have lost money and their licenses as a result of unfounded allegations. Families of many patients attempt to blame hospitals and physicians for carelessness in order to avoid paying bills, to express denial, etc.
One such example is the case of Dr. Archana Sharma’s suicide. Not every death is the consequence of a medical error, as we all know. Postpartum haemorrhage was the cause of the patient’s death in this instance. However, the hospital was accused of medical negligence by the family. A police file was lodged against Dr. Archana Sharma, a gynaecologist in Jaipur. And that too falls under the 302 IPC section which deals with murder. Dr. Archana took the drastic decision to end her life because she could no longer bear the abuse and damage to her reputation. [7]
Same sentence length, but for certified practitioners
The two-year sentence outlined in the IPC has been increased. However, situations involving registered medical practitioners are subject to a unique BNS clause. In these situations, an obligatory fine and a reduced sentence of up to two years of either description are applied. Therefore, in contrast to Section 304A of the Indian Penal Code, doctors still face a term of jail, and they are also required to pay a fine. RMP refers to individuals whose medical qualifications are recognised under the National Medical Commission Act of 2019, according to the explanation attached to Section 106. This indicates that other medical practitioners, such as those practicing dentistry or homoeopathy, are not covered by the reduced sentence; it solely pertains to allopathic doctors.[8]
Targeting registered medical practitioners
Another concern for doctors is that there is lack of questioning of real culprits such as quacks who are involved in negligence and do not conform to the standards. Instead of taking cognizance against them, and shutting down their shops, the government is targeting qualified doctors.
Inciting fear
Operations and other therapies for critically ill patients are common in today’s medical practice. Many of these have an unintentional inherent risk of adverse consequences, harm, or death. This distinguishes it from homicide, particularly because the action is carried out with informed consent and in the patient’s best interest. According to them, bad things do happen, even with the best of intentions; that’s just the nature of the work. This will affect the treatment. Doctors would be deterred from performing their duties by an overwhelming fear of punishment, and many would choose to specialise in less dangerous fields as a result. Patients who are critically ill and whose lives may be saved will eventually suffer from this. In such a situation, it will be society that suffers as fewer doctors opt to take bold decisions.
Impact on Productivity
Before treating a sick patient, doctors in critical care units already have to worry about what might happen if they try to save the patient’s life using a critical approach. In that case, the doctor would be responsible for any consequences and would suffer the consequences. Given the delicate nature of our line of work, the doctors ought to be released from these activities. Furthermore, doctors are questioning the treatment in emergency cases.
Need for a preliminary inquiry
There are two types of medical negligence. One is that does not require the application of the mind such as leaving a scissor in a body , but in another type of medical negligence, there is a need for careful investigation of the merits and demerits of the decisions of doctors. [9]
In Lalita Kumari vs. Government of UP, the court stated that for the latter type of medical negligence, a preliminary inquiry may be required. However, as a matter of fact, BNS does away with the requirements of a preliminary inquiry, which is one of the concerns.[10]
Conclusion
A unique situation has been granted to doctors under Section 106 of the Bharatiya Nyaya Sanhita. While the period of imprisonment has been raised, it has stayed at two years for registered doctors. But the definition of medical negligence under BNS act is a little unclear. The SC stated that police need approval of prime facie from an appropriate medical organisation before they can file a case against a physician in Jacob Mathew vs. State of Punjab. However, there is no clarity regarding this now. To bring about clarity, it is necessary to close the gaps. Doctors are the subject of anxieties that the government needs to address.
The Union Home Minister, Amit Shah, declared that medical professionals would not face criminal charges. That implementation, though, is nonexistent. Doctors must have built-in protections so they may perform more productively and with less difficulty. Investigating officers tasked with investigating cases must evaluate the pros and cons of each case without making any unfavourable decisions; thus, there is a need for clarification.
[1] From ’Tareekh pe tareekh’ to victim-centric justice: Top 10 quotes by Amit Shah on new criminal laws passed in Lok Sabha, Mint ( Dec. 20 , 2023) https://www.livemint.com/news/india/tareekh-pe-tareekh-top-10-quotes-by-amit-shah-on-new-criminal-laws-passed-in-lok-sabha-11703072307379.html
[2] Bolam v. Friern Hospital Management Committee (1957) 1 WLR 582.
[3] Jacob Mathew v. State of Punjab (2005), 6 SCC 1 (Ind.)
[4] Id.
[5] Indian Medical Association v. V.P. Shantha (1995) SCC (6) 651(Ind.).
[6] Bharatiya Nyaya Sanhita ,No. 45 of 2023, §106 (Ind.)
[7] Dev Ankur Wadhawan, Booked for murder, Rajasthan doctor dies by suicide, leaves note: ‘Stop harassing doctors, India Today (Mar. 31, 2022) https://www.indiatoday.in/india/story/booked-murder-rajasthan-doctor-dies-suicide-leaves-note-stop-harassing-doctors-1931681-2022-03-31
[8] Nandimath O V et al. , The criminal liability of doctors under new code, Deccan Herald ( Jan. 05, 2024)
https://www.deccanherald.com/opinion/the-criminal-liability-of-doctors-under-new-code-2836097
[9] Mirror now, New Criminal Law Sparks Outrage Among Doctors, Why Medical Professionals Against BNS? , YouTube ( July 05,2024) https://www.youtube.com/watch?v=5LQUIy60H4I .
[10] Lalita Kumari v. Government of Uttar Pradesh, (2014) 2 SCC 1 (Ind.)
