New Delhi: A week before Parliament passed the final version of the Bharatiya Nyaya Sanhita (BNS), which prescribes a jail term of two years for doctors convicted of causing death by medical negligence, the Indian Medical Association (IMA) had appealed to Home Minister Amit Shah to treat such cases under the “Law of Torts”, i.e. as civil rather than criminal matters, ThePrint has learnt.
ThePrint has a copy of the letter that IMA president Dr Sharad Kumar Agarwal and general secretary Dr Anilkumar J. Nayak sent to Shah on 13 December.
“IMA has requested the Government of India and the Home Ministry to consider medical negligence only under the Law of Torts and to exempt professional medical practice from criminal prosecution,” says the letter.
While criminal law aims to punish individuals who commit crimes, tort law aims to compensate individuals who suffer harm as a result of the actions of others.
“The prime component of a crime i.e., mens rea (intent to harm) is absent between a doctor and the patient during treatment,” says the letter addressed to Shah.
The IMA was alarmed by the initial iteration of the BNS, which appeared to ignore a representation it had made to a parliamentary committee earlier this year.
Section 304 A of the Indian Penal Code (IPC) prescribed a sentence of two years (or a fine, or both) for causing death by any “rash or negligent act not amounting to culpable homicide”. The BNS, which is due to replace the IPC, had raised this to seven years in its initial form.
The association wrote the letter to the home ministry after learning of this.
Writing, “We humbly put up to you that the medical profession is greatly disturbed on this count,” the medical association urged the government to treat doctors “differently”.
After the IMA’s plea, the government amended Section 106 (1), which deals with “causing death by negligence”, in the final version of the BNS.
The amended law says: “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.”
There’s also more stringent term of 10 years in cases of rash or negligent driving if the culprit runs away or fails to report the incident.
The IMA has welcomed the change but said, “The fight is not over yet.”
Dr S.V. Asokan, a senior IMA member, told ThePrint Friday that the new law is not much different from the previous one under the IPC. However, he did acknowledge that the latest change in the BNS “is a step forward”.
He added that the association will continue to “work with the government” to achieve complete immunity for doctors from criminal liability in cases of death due to medical negligence.
Agarwal also expressed hope based on Shah’s statement in the Parliament that the government is planning to free doctors from criminal liability in cases of death due to negligence.
Speaking in the Lok Sabha Wednesday, Shah had said, “If a patient’s death was caused because of a doctor’s negligence, it also came under the clause of murder committed unintentionally, for which we have increased the punishment in the new law to 10 years… I am bringing an amendment to the law to free doctors from the ambit of this clause… IMA had sent us a memorandum regarding this.”
“Our home minister is a strong leader and will not say something that he does not mean,” Agarwal told ThePrint.
Meanwhile, Dr Ravi Wankhedkar, former IMA president, said that the association was relieved that medical negligence was now separated from cases such as hit and run, but added that the doctors’ fight for “total decriminalisation of the profession will continue”.
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‘Doctors are a harassed lot’
In its representation to the Parliamentary Standing Committee on Home Affairs earlier this year, the IMA said that every year there are 98,000 deaths due to medical negligence, while the number of such cases stood at around 52 lakh.
ThePrint has a copy of the representation.
The association also quoted various Supreme Court judgments, which held that “medical professionals should not be treated as ordinary criminals”.
“In spite of repeated instructions from the SC, no action is still taken towards complying with these judgments. In various judgments, it is also mentioned that there is a possibility of medical accidents, but there is no legislation which defines what it is because of which medical accidents are not covered under insurance, and patients do not get compensation, which people get in motor vehicle, railway or airline accidents,” the association said.
The IMA wrote that, as the government was planning to replace the old criminal justice system with a new one, medical accidents or mishaps, as well as violence (verbal, physical, monetary) against medical professionals by patients or their relatives and friends, and the penalty for violence, should be clearly defined.
Making a case for medical negligence to be treated as a civil offence, the IMA also wrote that “generally speaking, it is the amount of damages incurred which is determinative of the extent of liability in tort; but in criminal law, it is not the amount of damages but the amount and degree of negligence that is determinative of liability.”
The association also said that, since there is no statute that defines medical mishaps or accidents so far, police “all over the country register a case under any section related to murder or culpable homicide against a healthcare provider” and harass them.
According to Asokan, this leads to doctors opting for defensive medicine, especially in critical cases — and the sense of injustice among the common people results in unnecessary violence against healthcare professionals.
“In all this, the biggest sufferers are patients, while doctors are a harassed lot,” he added.
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‘Will greatly disempower patients’
However, not all doctors endorse the IMA position that there should not be criminal liability at all in every case when a patient dies due to medical negligence or wrong or denied treatment.
Dr T. Sundararaman, who is also associated with Jan Swasthya Abhiyan — the Indian chapter of the People’s Health Movement — said that medical negligence and denial of treatment leading to deaths in many cases are a reality, even though some such cases may be mala fide against doctors.
“I agree that medical negligence cases cannot be treated at par with hit-and-run cases, but to fully provide doctors immunity from criminal liability in cases of acute medical negligence will greatly disempower patients,” said Sundararaman, who is a former executive director of the National Health Systems Resource Centre under the Union health ministry.
This, he said, was especially true as the Clinical Establishment (Registration and Regulation) Act, 2010 — a law to regulate private healthcare providers in the country — has remained largely non-functional.
Some others who advocate patient rights also criticised the latest government move, saying they will vehemently protest it.
“This (amendment) is an outrageous, unlawful, unconstitutional and anti-patients attempt by the government under pressure from the powerful medical lobby — IMA,” said Kunal Saha, founder of the People for Better Treatment (PBT), an organisation that works to counter medical corruption.
In a letter written to the health ministry Friday, PBT said that not a single registered allopathic medical practitioner has ever been convicted or imprisoned under IPC Section 304 A by the apex court for causing the death of a patient due to rash or negligent treatment.
“Ironically, despite having a more efficient healthcare system, doctors in developed countries like the US and the UK have been criminally convicted and imprisoned for causing negligent death of patients,” says the letter, a copy of which is with ThePrint.
Unlike in the developed countries, there are hardly any meaningful checks and balances for the doctors in India, it adds.
Calling the provision “undemocratic and unconstitutional”, Saha said his group would move court if the provision was not withdrawn.
“Nowhere in IPC Code 304 A were doctors or any other profession mentioned, it simply said death caused by a ‘rash’ or ‘negligent’ act,” Saha said.
Excluding a specific sector of society, like doctors, would be discriminatory and violate Article 14 of the Constitution, which guarantees equality under the law, he added.
Shishir Chand, who is also with PBT, argued that irrespective of the quantum and duration of the sentence, prosecution of doctors is not easy. “The biggest challenge continues to be obtaining independent expert medical opinion,” he said.
(Edited by Richa Mishra)
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