Health workers from ‘Doctors for You’ conduct Covid-19 screening near the Deobar dumping ground.
By Sumit Jha
The IMA is happy that the new Bharatiya Nyaya Sanhita differentiates medical negligence from criminal offence, and offers a less harsh punishment.
On Friday, 22 December, the Indian Medical Association (IMA) – the largest organisation representing doctors in the country – extended its gratitude to Prime Minister Narendra Modi and Union Home Minister Amit Shah via a daily newspaper advertisement for “exempting medical professionals from criminal prosecution under 304(a) of the IPC, now 26 of BNS (death by rash or negligent act).
This gesture followed Minister Amit Shah’s announcement in Parliament, on Wednesday, while the three criminal reform Bills were passed, assuring that the provisions related to death resulting from medical negligence would be excluded from Section 26 of the new Bill – Bharatiya Nyaya Sanhita (BNS).
He pledged an amendment to shield doctors from potential legal repercussions.
Doctors not exempt from punishment
However, after the Bill’s passage in both Houses, it became evident that doctors don’t actually receive outright immunity in cases of death due to negligence under the provisions of the BNS. Instead, the legislation maintains a maximum two-year imprisonment.
The difference, though, is that this is a slightly reduced penalty compared to other death-related offences, the punishments for which have been increased.
Under the BNS, the punishment for causing accidental death (like road traffic death) was increased to a maximum of five years. An additional provision was introduced for situations where the responsible party flees or fails to report the incident, allowing for imprisonment of up to 10 years.
As per the amendment, “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 a fine.”
In essence, criminal cases can still be filed against medical professionals for deaths arising from medical negligence, but the maximum imprisonment is now less severe compared to other death-related scenarios.
So why is the IMA happy about it?
The amendment will maintain the maximum imprisonment for doctors at the same level as specified under Section 304(A) of the Indian Penal Code (IPC), allowing for up to two years of imprisonment and a fine.
“The original draft of the Bill had asked for seven years of punishment for death due to negligence. We made a submission to the parliamentary committee to differentiate medical death by a doctor from death due to negligence. Later, the Ministry of Home Affairs lowered it,” said President-elect of IMA, Dr V Asokan, to South First.
He added that the Home Minister accepted the demand and differentiated medical negligence. “Moreover, the minister went beyond this in the parliamentary proceedings, explicitly stating that deaths during treatment were no longer to be considered as murder. The minister expressed the intention to exempt doctors from such scenarios through an upcoming amendment,” he said.
Dr Asokan added that the parliamentary declaration by the Home Minister signifies a departure from previous norms, affirming that any death during treatment is not to be deemed as murder.
“In essence, the government has declared, in principle, its acceptance of the IMA’s stance that there is no criminality involved in the relationship between a doctor and a patient. The IMA has consistently maintained that there is no criminal intention between a doctor and a patient, emphasising that criminality requires intent to harm, and crime is defined by the presence of criminal intent,” said Dr Asokan.
Medical negligence as per the Jacob Mathew case
Medical negligence is subject to provisions influenced by case laws, particularly relevant Supreme Court judgements like Jacob Mathew vs State of Punjab, dealing with medical negligence and the criminal liability of doctors.
The case was heard by the Supreme Court of India and resulted in the formulation of important guidelines regarding the prosecution of doctors for offences related to medical negligence.
The case involved a doctor, Jacob Mathew, accused of causing a patient’s death due to medical negligence. Dr Mathew challenged criminal proceedings, arguing that a medical professional shouldn’t be held criminally liable for an error of judgement or a bona fide mistake while treating a patient.
The Supreme Court, in its 2005 judgment, acknowledged the need to protect doctors from frivolous criminal prosecutions but emphasised accountability in cases of genuine medical negligence. The court laid down guidelines to differentiate between genuine errors and acts of negligence by medical practitioners.
The key points from the Jacob Mathew case include:
- Gross Negligence Standard: The court held that for a doctor to be held criminally liable, the negligence should be of such a high degree as to amount to gross negligence.
- Intentional Acts or Omissions: The court clarified that criminal liability would arise only if a medical professional’s act or omission is so reckless or negligent that it can be equated with a criminal act.
- Professional Standards: The court emphasised the importance of adhering to high professional standards and medical ethics, and that a breach of these standards could be a ground for criminal liability.
- Expert Opinion: The court highlighted the significance of obtaining expert opinion to establish negligence, and that the opinion should be given by a doctor in the same field as the one being accused.
The Jacob Mathew case has since been cited in various judgements related to medical negligence in India and provided a framework for determining when criminal liability may be imposed on medical practitioners for their actions.
What does it mean for patients?
Dr Asokan added that there is always the possibility of seeking civil compensation in cases of negligence, which aligns with what is referred to as the “law of thoughts”.
“The medical profession falls within the purview of this law and while we adhere to it, our contention lies in distinguishing it from criminal negligence. In the realm of criminal law, intent plays a crucial role, often denoted by the Latin term ‘mens rea’,” said Dr Asokan.
He further explained, “There exists a distinction between a doctor-patient relationship and instances of medical negligence or accidents, such as unpredictable events, like anaesthetic deaths, which are commonly referred to as medical accidents.”
He added that the IMA’s stance emphasised that the medical profession complies with the law of civil compensation and the law of thoughts, but it rejects the notion of criminal negligence.
“This position has found support from the Home Minister and the Government of India. On the floor of the Parliament, the Home Minister expressed intention to amend the law, stating that in the context of treatment, there is no murder involved, and doctors can be exempted. This statement marks a departure from what the government had previously articulated,” said Dr Asokan.
For civil liabilities, the consumer commission is the available platform for patients who find doctors and hospitals liable for negligence.
Most hospitals and doctors are covered under indemnity insurance, a financial arrangement that provides protection against potential losses or damages by compensating doctors for covered liabilities.
For Dr Asokan, the new law is advantageous for both doctors and patients.
“In the event of a loss, patients’ families can pursue civil suits without doctors being perceived as criminals or murderers. This instils confidence in doctors, especially in critical situations, eliminating the fear of imprisonment and allowing them to take calculated risks. The beneficiaries here are both the patient and the doctor, making it a positive development for public health,” Dr Asokan noted.
Courtesy: The Wire