Whenever we fall ill, we run to the Doctor. Due to their skills of healing through medicine, doctors are very much respected and worshipped like God. With such a degree of faith, when you get to know that the loved one you entrusted to an experienced Surgeon succumbed to death due to negligence of that Doctor, will you let the matter slide? A lot of times, Hospitals witness tense situations in similar cases. Since Doctors have a duty of care towards their patients, the New criminal Laws uphold such duty by imposing criminal liability. The elements of medical negligence in Bharatiya Nyaya Sanhita have been embraced under Section 106. Let’s have a look at the current picture of the offence related to medical negligence in criminal laws.
Death by Negligence in IPC
The Indian Penal Code, 1860 did not expressly dealt with death caused by medical negligence. This means that a Doctor could not be held criminally liable for lack of care while treating patients. Through legal interpretation, death of a patient under a doctor’s care was classified as criminal negligence under Section 304A of the Indian Penal Code. General Exceptions, which protect a doctor acting in good faith, mostly shielded Medical Practitioners from being held liable criminally.
Death by Negligence in BNS
While taking up the legal provision for causing death by negligence in IPC to BNS, the Law Makers incorporated Medical Negligence in express manner.
“106. Causing death by negligence – (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.”
Elements of Medical Negligence in BNS 2023
Sub-Section (1) of Section 106 of the Bharatiya Nyaya Sanhita states about causing death by negligence. There are two aspects covered in this provision – death caused by rash or negligent act, and also includes act of a Medical Practitioner. In other words, medical negligence is committed when a rash or negligent act is done by a Doctor (registered medical practitioner) while carrying out a medical procedure. The said Doctor is punishable with imprisonment of up to two years and with fine.
As to the elements of medical negligence in BNS 2023, the following pointers may be taken note of:
- Rash or negligent act – specifies the action;
- While performing Medical Procedure – Further narrows down the circumstances;
- By a Registered Medical Practitioner – delineates whom the provision is applicable to;
In terms of law, negligence can be understood as the failure to do what a reasonable and prudent person would ordinarily have done under the circumstances of the situation. Where there is a duty of care, and such duty is compromised, liability comes up. Given below are the scenarios when negligence may be proved legally:
- When there was a legal duty of care;
- There was a breach of such duty;
- The complainant should have suffered some harm/loss;
- There should be some direct connect between the said duty of care and harm caused.
Punishment for Medical Negligence under BNS
If a Doctor causes death of a person due to rash or negligent act, while performing a medical procedure, the said act is punishable under Section 106 of BNS. The punishment for death by medical negligence is imprisonment for a maximum term of 2 years with fine. With this, it comes upon the discretion of the Court to look at the severity of facts in hand while deciding the punishment for Doctor’s negligence. If it is a minor breach of duty of care, the Court may impose minimal imprisonment, which may be a couple of months as well. However, if there is a major negligence on part of the Medical Practitioner, the Court may order a sentence of imprisonment of nothing less than 2 years.
Medical Negligence in Consumer Protection Act
The Indian Penal Code did not expressly punish medical negligence. Therefore, one could approach the Indian Medical Council or any other authority who issues license to medical practitioners for cancellation of such license as a punishment for medical negligence. However, since medical practice is a service for which a person usually pays hefty amount, the Consumer Protection Act squarely covered the aspect of compensation for the victims of medical negligence. There are no concrete elements of medical negligence for the purpose of proving Consumer rights and deficiency in service. The complainant only needs to prove lack of performing duty of care on part of the Medical Staff (Doctor or Hospital Staff, as the case may be). The Consumer Courts may order compensation in lakhs for the victims, but the Medical Practitioner may carry on with his/her practice.
