What is meant by Gross Medical Negligence? Doctors ask govt to clarify

New Delhi: Highlighting that medical professionals are constrained to take a calibrated risk often which makes it "difficult to define gross negligence", the Indian Medical Association (IMA) has urged the Union Government to clarify the new criminal laws for prosecuting doctors.

In a letter addressed to the Union Home Minister Shri Amit Shah, IMA urged the Central Government to issue an executive order on criminal prosecution of doctors insisting that such an order "may protect doctors being harassed under criminal law."

Under the Bharatiya Nyaya Sanhita, 2023 Act, which repealed the Indian Penal Code (IPC), doctors are spared from criminal proceedings if the death results from actions done in good faith for the patient's benefit and with their consent.

Regarding this, Section 26 of BNS, 2023, which was published in the official Gazette of India on 25th December 2023, states, "Nothing, which is not intended to cause death, is an offence by reason of any harm which it may cause, or be intended by the doer to cause, or be known by the doer to be likely to cause, to any person for whose benefit it is done in good faith, and who has given a consent, whether express or implied, to suffer that harm, or to take the risk of that harm."

This section illustrates that if "A, a surgeon, knowing that a particular operation is likely to cause the death of Z, who suffers under the painful complaint, but not intending to cause Z’s death, and intending, in good faith, Z’s benefit, performs that operation on Z, with Z’s consent. A has committed no offence."

However, Section 106 (1) mentions 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.

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."

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

Writing to the Union Home Minister, IMA opined that whenever a complaint of criminal negligence is taken up by the investigating officer provisions of section 26 of BNS shall take precedence. The association argued that the provisions of Section 106 should only be considered when the officer is satisfied of the recklessness or gross negligence.

IMA further argued that when the investigating officer is satisfied that section 106 cannot be excluded he may follow the procedures as enunciated by the judgement of the Supreme Court of India Jacob Mathew Vs State of Punjab.

"Medical professionals are constrained to take a calibrated risk many a time in critical situations. Therefore, it becomes difficult to define gross negligence," highlighted the association in its letter.

"Provided that a RMP to be held guilty of criminal medical negligence, it must be of such a high degree as to be ‘gross’, supported by expert opinion, otherwise, it may be presumed a medical accident, the reason of which cannot be conclusively determined.’(2005)6SCC1Jacob Mathew Vs. State of Punjab," the letter further added.

In the letter, signed by IMA President Dr. R.V. Asokan and Secretary General Dr. Anilkumar J Nayak, the association lauded the Government for raising awareness on how doctors are being implicated in criminal cases.

"Medical community is grateful for being exempted from the enhanced punishment for negligence as originally proposed in clause 106 of Bhartiya Nyaya Samhitha. It is also a relief that section 88 of IPC has been retained as Section 26 of Bhartiya Nyaya Samhitha," IMA added in the letter.

Urging the Government to issue an executive order on criminal prosecution of doctors, IMA submitted some relevant documents for perusal and consideration of the Government and opined that the executive order may protect the doctors from being harassed under criminal law. The association has submitted a draft document prepared by NMC Ethics Board in this regard, the circular memorandum issued by Kerala Government and another one issued by the Tamil Nadu Government. "We would be grateful for a favourable directive to the police officers of the country," the association added in its letter directed to the Home Minister.

Criminal Negligence is a very bothersome and painful point for the medical fraternity. Until now, criminal negligence used to be dealt under IPC 304 A, which is causing death due to negligence.

As per IPC 304 A, 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.

However, the problem for doctors in reality did not end there, as many of the doctors were tried in the IPC 304 rather than IPC 304 A. While 304 A dealt with charges of causing death due to negligence, IPC 304 dealt with charges of Culpable homicide not amounting to murder.

Accused, who were charged under IPC 304 were punished with life imprisonment or imprisonment for up to ten years, and sometimes they were also fined, depending on whether the act was done with the intention of causing death or with the knowledge that was likely to cause death. There has been a long-standing demand from the medical fraternity, that death due to to negligence of doctors should not be treated as criminal negligence. 

Also Read: Breaking News: Home Minister Amit Shah Promises to Decriminalize Medical Negligence deaths