Breaking News- Death due to Medical Negligence Remains a Criminal Offence, to Attract up to 2 Years Imprisonment: DGHS notification

New Delhi: Death due to Medical Negligence, done by a Registered Medical practitioner (RMP) (doctors registered under the National Medical Commission Act), may attract imprisonment which may extend up to two years and a fine, the recent explanation issued by Dr. Atul Goel, the Director General of Health Services (DGHS) has clarified.

The move would bring disappointment to many in the medical fraternity who were hopeful that medical negligence would be decriminalized after the last Lok Sabha session, where Union Minister Amit Shah had stated that deaths due to medical negligence by doctors would be decriminalized.

Medical Dialogues had earlier reported that addressing the winter session of Lok Sabha, the Home Minister had said, "Currently, if there is a death due to negligence of a doctor, it is also treated as criminal negligence, almost akin to murder. Hence, I will bring an official amendment now to free the doctors from this criminal negligence."

What is the current status?

A new notification issued by the DGHS ( a copy of which is with Medical Dialogues team), explains the three new criminal laws which are applicable now as well as their treatment of medical negligence. As per the new notification, it is clear that death due to medical negligence may attract a punishment that is inclusive of imprisonment up to two years and a fine.

What is different in the Act is that the law now treats differently the death caused by medical negligence of a doctor as well as death caused by negligence of other people which attracts a higher fine or imprisonment up to 5 years.

Writing to the Health Officials in all the States/UTs, the DGHS Dr Atul Goel informed that the three newly introduced Criminal Laws included in the Bharatiya Nayaya Sanhita, 2023, the Bharatiya Nagarik Sanhita, 2023 and the Bharatiya Sakshya Adhiniyam, 2023 will come into force on July 1st, 2024.

"As you are aware that the three new Criminal Laws have been included in the Bharatiya Nyaya Sanhita, 2023, the Bharatiya Nagarik Sanhita, 2023 and the Bharatiya Sakshya Adhiniyam, 2023, have been passed by the Parliament and after the assent of Hon'ble President of India, have been notified in the Gazette of India on 25th December, 2023," DGHS mentioned in the communication.

"The Central Government has appointed the 1st day of July, 2024 as the date on which the provisions of the three criminal laws shall come into force. The earlier Indian Penal Code, 1860 will now be replaced by Bharatiya Nyaya Sanhita, 2023. The medical practitioners must be made aware about provisions of the new Acts so that mistakes are not committed when medicolegal come before them," it further added.

The DGHS has asked the State/UT health officials to generate awareness in the respective States/UTs regarding the relevant provisions of the new criminal laws. "In this regard you are requested to undertake awareness generation in your State/UT to Disseminate the relevant provisions of new three criminal laws for medicolegal cases to all medical practitioners in all the clinical establishments of the State/UT. As a facilitatory step the matter medical negligence under the criminal law is attached in the annexure for your reference," it stated, urging for "supervision", "active engagement" and "commitment" of the concerned officials in the endeavour.

Also Read: Criminality of Medical Negligence Explained: Where doctors stand and what lies in future

Medical Negligence under Criminal Law: 

What did the Previous Law say? 

Earlier, under the Indian Penal Code (IPC), the medical negligence could be specified under various sections such as IPC 304A, 336, 337 and 338. As per IPC 304A, medical negligence was a cognisable officence and doctors could be "punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both" for causing the death of any person "by doing any rash or negligent act not amounting to culpable homicide."

IPC Section 336 stated that "Whoever does any act so rashly or negligently as to endanger human life or the personal safety others, shall be punished with imprisonment of either description for a term which may extend to three months or with fine which may extend to two hundred and fifty rupees, or with both. (Non-Cognisable)"

As per IPC Section 337, whoever causes hurt to any person by doing any act so rashly or negligently as to endanger human life, or the personal safety of others, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to five hundred rupees, or with both. Charges under this Section are also cognisable and trial is held by JMFC.

Negligence could also be specified under IPC Section 338, which stated that whoever causes grievous hurt to any person by doing any act so rashly or negligently as to endanger human life, or the personal safety of others, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine which may extend to one thousand rupees, or with both.

What did Draft Bharatiya Nyay Sanhita Say? 

Addressing the issue of medical negligence, the Section 106 of the Draft Bharatiya Nyay Sanhita proposed enhancing the maximum punishment for causing death by negligence from 2 years of imprisonment to 5 years of imprisonment for all (including doctors).

This was strongly opposed by the medical fraternity which stated that the upcoming law was putting even harsher penalties on doctors for negligence or a mistake on their part.

What does the Current Act State? 

Section 106 of the final Act, which will come into force on July 1st, 2024, states that "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."

To elaborate, the amended (Second Sanhita bill) Section 106(1) differentiates between negligence by any person and a Registered Medical Practitioner. If there is death due to negligence by a doctor, the amended (Second Sanhita bill) Section 106(1) specifies that "a registered medical practitioner (RMP) shall be punished with imprisonment up to two years and a fine."

However, if it is done by any other person- not a doctor, then it is punishable with imprisonment for a term that may extend to 5 years and a fine.

Hence, if we compare the previous IPC with the current Bhartiya Nyay Sanhita, the quantum of punishment remains the same. Effectively, the punishment for doctors as specified under Section 304(A) of the IPC has been retained for doctors, while for others it has been made 5 years, explained the DGHS.