On December 25, 2023, the law relating to criminal prosecution of doctors for medical negligence in India was changed significantly when the President of India gave her assent to the “Bhartiya Nyaya Sanhita 2023”. However, both events inside and outside the Parliament during the discussions on the new law have sparked confusion among doctors, leading to a controversy that seems far from settling. This article aims to provide clarity on whether doctors can be punished for criminal medical negligence under the new law.

The implementation of the new laws has now been held back according to a recent government announcement and will be enforced from 10th July 2024. 

Legal Provisions

Let’s examine the relevant provisions under the old and the new law. Under the Bhartiya Nayaya Sanhita 2023, Section 106 deals with causing death by negligence. 

Section 106 deals with causing death by negligence

‘(1) 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 of 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 a medical procedure, he/she 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 subsection, “registered medical practitioner” means a medical practitioner who possesses any medical qualification recognized under the National Medical Commission Act 2019 and whose name has been entered in the national medical register or a state medical register under the act.”

Sub-section 1 specifies that a person causing death by a rash or negligent act not amounting to culpable homicide can be punished with imprisonment for up to five years, along with a fine. If such an act is committed by a registered medical practitioner during a medical procedure, the punishment may extend to two years, along with a fine.

Section 304A of the IPC states:

“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.”

In cases where a person’s death is caused by the negligence of another, however, the negligence does not amount to culpable homicide; the offender may be charged under Section 304A. This is a non-bailable offence; the punishment may include imprisonment, a fine, or both. 

Analysis

Three crucial changes in a new law;

A straightforward analysis reveals that doctors were criminally liable under the old law and remain so under the new law. The punishment, imprisonment for up to two years and/or a fine, remains unchanged. However, there are essential changes in the new law:

Change 1

Special Privilege for Doctors: Doctors are granted a special privilege, limiting the imprisonment to two years, whereas others may face up to five years for a similar offence.

Change 2

Limited to Modern Medicine Practitioners: This privilege is exclusively available to doctors practising modern medicine (allopaths) registered with the National Medical Commission or State Medical Councils. Practitioners of other medical practitioners, including medical students, interns, dentists and AYUSH, may face five years of imprisonment.

Change 3

Mandatory Fine: Unlike the old law, where imposing a fine was optional, the new law makes it mandatory. A negligent allopath must undergo imprisonment and pay a compulsory fine.

Confusion and Future Possibilities

Despite statements by the  Hon’ble  Home Minister suggesting that cases of medical negligence would be decriminalized, no corresponding changes were made in the final Act passed by the Parliament. With the new law now in effect, doctors in India will continue to be held criminally liable for medical negligence.

While the government is not legally, ethically, or morally bound to change the law, the possibility of future amendments always exists. The Parliament can amend or repeal any law when deemed fit. 

Jacob Mathew vs. State of Punjab case in 2005

The Jacob Mathew vs. State of Punjab case is a landmark legal case in India related to medical negligence and the criminal liability of doctors. The case was decided by the Supreme Court of India in 2005. Jacob Mathew, a doctor, was charged with causing the death of a patient due to medical negligence. The case raised questions about the appropriate legal standards to be applied in cases of alleged medical negligence leading to death. The Supreme Court, in its judgment, laid down guidelines to determine the criminal liability of doctors in cases of medical negligence. 

The key points from the judgment include:

Negligence Standard: The Supreme Court emphasized that the standard for judging medical negligence in criminal cases should not be as high as in civil cases. The court stated that negligence in the context of a medical professional should be judged by the standard of a reasonably competent doctor in that field.

Criminal Liability: The court held that not every error or negligence on the part of a medical professional would lead to criminal liability. To establish criminal negligence, the act must be so gross and reckless that it shows a wanton disregard for the lives of others.

Need for Expert Opinion: In criminal proceedings against doctors for medical negligence, the court ruled that a private complaint before a criminal court ought to be accompanied by a credible medical opinion from experts, although this aspect is not mandatory. Similarly, if a patient approaches the police to file an FIR against a doctor, the police must seek a medical expert opinion before proceeding. This aspect is mandatory.

No Routine Arrest: The court provided protection to doctors by stating that in cases of medical negligence, doctors cannot be routinely arrested. The police must follow proper procedures, and the arrest cannot be made routinely.

Conclusion

In conclusion, the changes brought about by “The Bhartiya Nyaya Sanhita 2023” regarding the criminal prosecution of doctors for medical negligence have stirred considerable debate and confusion within the medical community. 

The amended law, with Section 106 at its core, maintains the criminal liability of doctors for causing death by negligence, much like its predecessor, Section 304A of the Indian Penal Code 1860. Despite the apparent continuity in the punishment, imprisonment for up to two years and/or a fine, three significant alterations in the new law have been identified.

First, a special privilege is extended to doctors, limiting their imprisonment to two years, in contrast to potential five-year sentences for others committing a similar offence. Second, this privilege is exclusively available to practitioners of modern medicine, including medical students, interns, dentists, and AYUSH practitioners, who may face up to five years of imprisonment. Third, the imposition of a fine, once optional earlier, is now mandatory, making it compulsory for negligent allopaths to undergo imprisonment and pay a fine.

The confusion among doctors’ stems from statements made by the honourable Home Minister, hinting at the decriminalization of medical negligence. However, no corresponding changes were reflected in the final Act passed by the Parliament. As it stands, doctors in India will continue to bear criminal liability for medical negligence. While the government is not obligated to change the law, the possibility of future amendments remains. The Parliament holds the authority to amend or repeal laws when deemed necessary. 

Nevertheless, the protection given by the Hon’ble Supreme Court in the Jacob Mathews case remains unscathed by the recent change in law. It will continue to protect doctors in criminal cases of medical negligence.

In navigating these legal complexities, it is essential for medical professionals to stay informed and seek legal advice when needed, ensuring a balance between accountability for actions and preventing unwarranted harassment in cases where negligence is not gross or reckless.