Doctors worry about prison time in cases of medical negligence under new criminal law

Sections of doctors have long argued that allegations of medical negligence often emerge from poor understanding of the practice of medicine while some complaints against doctors appear intended to intimidate them into providing financial compensation to complainants for the alleged negligence

G.S. Mudur New Delhi Published 02.07.24 : The criminal law that came into effect from Monday is “harsher” on doctors in cases of alleged medical negligence than the Indian Penal Code (IPC) and could in certain situations jeopardise patients’ wellbeing, sections of doctors have cautioned.

They have expressed concern that a change in a conjunction — an “or” replaced by an “and” — in the relevant section of the new law could mean an unavoidable term in prison for doctors in cases of medical negligence.

Section 106 of the Bharatiya Nyaya Sanhita (BNS) specifies that death from any rash or negligent act done by a registered medical practitioner while performing a medical procedure shall be punished by imprisonment up to two years “and shall also be liable to fine”.

This provision in the BNS has replaced Section 304A of the IPC that had specified imprisonment for up to two years “or with fine or with both” as punishment for causing death from any rash or negligent act.

“The insertion of ‘and’ in the new version of the law appears to imply a mandatory jail term for doctors,” said K.V. Babu, an ophthalmologist in Kannur, Kerala, and founding member of the Alliance of Doctors for Ethics in Healthcare, a nationwide network of doctors

Babu and other doctors have also expressed concern that the provision in Section 106 of the BNS might push some doctors into practicing defensive medicine and even avoid managing critically ill patients and refer them to other medical facilities.

The Indian Medical Association (IMA), the country’s largest body of doctors with a membership of more than 400,000 physicians, has also expressed concern about the new law, calling it a “Damocles’ sword”.

“In cases of medical negligence, there is never any intent to cause harm. We are hoping the authorities will acknowledge this aspect,” said R.V. Asokan, president of the IMA.

Asokan said given that the law has already come into effect, any effort by the medical community to seek special exemptions for doctors will be difficult and long-drawn. He said the IMA is not asking for exemption but is seeking the establishment of district medical panels that can advise investigating officers in cases of medical negligence.

“These district medical committees could be established through executive orders,” Asokan said. “They could look into allegations of medical negligence and determine whether there has been reckless or gross negligence.”

The IMA, in a letter sent to Prime Minister Narendra Modi on June 29, has urged a memorandum that would put in place the district-level panels and “remove the Damocles’ sword hanging over doctors”.

Sections of doctors have long argued that allegations of medical negligence often emerge from poor understanding of the practice of medicine while some complaints against doctors appear intended to intimidate them into providing financial compensation to complainants for the alleged negligence. .

Under Article 361 of the Constitution, no criminal proceedings can be instituted against a governor during his/her term in office.