New Delhi: A week after Lok Sabha passed a bill with reduced punishment for doctors in cases of medical negligence, a prominent patient rights group — People for Better Treatment — has written to Union health minister Mansukh Mandaviya protesting the move and to seek his intervention.
“The government was prompted to pass this unprecedented and extraordinary Bill (amendment) for shielding the errant doctors at the behest of the powerful medical lobby of the Indian Medical Association (IMA),” a letter by PBT president Kunal Saha to Mandaviya said Saturday.
ThePrint has accessed the letter.
The Bhartiya Nyay Samhita, 2023 (BNS 2023), passed by the Lok Sabha on 20 December, proposes a jail term of a maximum of two years for medical negligence leading to death. This is a significant departure from what a previous iteration of the Bill had proposed — 10 years of jail for all acts of negligence, including medical, for culpable homicide not amounting to murder.
Currently, acts of medical negligence are covered under Section 304A of the Indian Penal Code (IPC) — the law the BNS bill seeks to replace. The provision for ‘Causing death by negligence’ prescribes jail for two years.
The Narendra Modi government’s move to reduce the jail term in cases of medical negligence was made through an amendment to the proposed BNS and came after the Indian Medical Association (IMA) pressed for it to be treated only as a civil or tortious wrong rather than a criminal offence.
The IMA later called the government’s move a “step forward”.
In the letter, Saha, whose wife Anuradha — a US-based psychologist — died in 1998 due to an overdose of steroids with which she was being treated during one of her visits to India, said that the proposed law (amendment) provides “unparalleled ammunition for the most reckless members of the medical profession”.
The letter also urges Mandaviya to step forward and take appropriate measures to stop this bill from becoming a law because this would “cause further erosion in the standard of medical practice resulting in loss of more lives of the innocent patients and devastate countless families”.
“We, the countless victims of medical negligence as well as the ordinary people of India are profoundly shocked with the news that (the) government has crafted this new provision of law only to protect grossly negligent doctors who are liable for criminal prosecution,” it says, making a mention of Anuradha’s case.
In 2014, the Supreme Court overturned a consumer court’s decision of holding two Kolkata doctors guilty for her death under the Consumer Protection Act (CPA), 1986, and awarding her family the highest-ever compensation of Rs 11.5 crore.
In a letter to the Parliamentary Standing Committee on Home Affairs earlier this year, the IMA suggested that since there are 98,000 deaths “due to medical negligence” and nearly 52 lakh such cases every year, the terms “medical accident” and “gross medical negligence” be defined by statute. The letter also pushed for total decriminalisation of the profession.
ThePrint reached the Union health ministry via email, and IMA president Dr Sharad Kumar Agarwal via phone calls and texts for his comments on PBT’s letter to the Health Minister. This report will be updated if and when responses are received.
‘Bill flawed in many ways’
Section 304A of the IPC reads: “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 its letter, People for Better Treatment said that the amended bill is flawed in more ways than one as there was no mention of doctors or other professionals anywhere in the IPC section.
“(But) providing a special immunity only for the members of the medical fraternity protecting them from criminal prosecution under IPC Section 304A for alleged ‘rash or negligent act’ is clearly discriminatory and in violation of Article 14 of the Constitution of India that guarantees equal protection under law for all citizens,” the letter says.
It adds that protecting negligent doctors from criminal prosecution even when they may be guilty of causing the death of a patient through “rash, negligent, and reckless acts” also violates the fundamental right to life guaranteed under Article 21 of the Indian Constitution.
The “notion of enacting a new provision of law solely for the protection of the negligent medicos from criminal prosecution is also misconceived on the face of the undeniable fact that hardly any registered medical practitioners are found guilty under IPC Section 304A,” the PBT letter says.
‘No doctor ever convicted by apex court for medical negligence’
According to Kunal Saha’s letter, the only doctor whose conviction under IPC Section 304A had been upheld by the Supreme Court of India was more than 58 years ago. Even in that case, the accused was an Ayurvedic doctor and not a registered allopathic medical practitioner, the letter said.
It also claimed that in fact, not a single conviction involving a registered allopathic medical practitioner has been upheld under the section for causing the death of a patient due to rash or negligent treatment.
Making a mention of the Anuradha Saha case, the letter goes on to say that “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.
PBT also underlined that unlike in developed countries, there are hardly any meaningful checks and balances on doctors in India.
“Widespread corruption in the healthcare and medical education system has become a common knowledge today,” it said and added that “medical negligence and unethical practice by devious doctors are rampant across India”.
Kunal Saha told ThePrint that the PBT will file a Public Interest Litigation (PIL) in the Supreme Court if the BNS bill with its “contentious provision” becomes a law.
But Dr Rajeev Jayadevan, a senior member of the IMA in Kerala, believes that doctors shouldn’t face criminal proceedings for doing their job because “unlike criminals who harm people for personal gain in cold blood, healthcare professionals don’t have any personal interest in causing harm to the individual”.
“In fact, any harm could sabotage his or her professional future,” he said. “Thus, any serious harm following treatment is either by accident, professional incompetence, or inherent unpredictability of underlying condition. (The) human body is not man-made and has no instruction manual. No treatment is therefore perfect,” he said, adding that in other words, no doctor will cause an accident by intent.
(Edited by Uttara Ramaswamy)
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