Medical Negligence under Bharatiya Nyaya Sanhita (BNS)

Medical Negligence under Bharatiya Nyaya Sanhita (BNS)

Medical negligence occurs when a healthcare professional fails to provide the expected standard of care, leading to harm to the patient. With the introduction of the Bharatiya Nyaya Sanhita (BNS), the legal landscape surrounding medical negligence in India has undergone significant changes. This article delves into the definition of medical negligence, its legal essentials, relevant case laws, and the impact of the new BNS provisions.

WHAT IS MEDICAL NEGLIGENCE?

The Oxford Dictionary defines negligence as a Lack of proper care or inadequate attention. Negligence is characterised as the irresponsible, unlawful, or inappropriate actions of an individual holding a professional or official status. [i]

In legal terms, medical negligence is defined as a duty of care that is violated and causes harm. The patient may suffer financial losses, health consequences, worsening of their condition, trauma, irreversible impairment that lasts the rest of their life, etc.

In general terms, medical negligence is defined as when a healthcare practitioner or medical professional does or does not behave in a way that differs from the established norms or standards of the medical community and causes harm to the patient.

Essentials:

  1. Duty of Care: The healthcare provider owes a legal duty to care for the patient.
  2. Breach of Duty: The healthcare provider fails to meet the required standard of care, disregarding the patient’s needs.
  3. Injury: The patient suffers injury or harm due to the breach of duty.
  4. Causation: A clear link must exist between the breach of duty and the injury sustained by the patient.

Medical negligence is established only if all these essentials are proven in a court of law.

Relevant Case Laws:

  •   In the Landmark case Jacob Mathew v. State of Punjab and Another[ii], The Supreme Court of India defined negligence as: “Negligence is defined as when a defendant fails to use ordinary care or skill towards a person to whom he/she owes a duty, resulting in the plaintiff suffering damage to his person or property”. The Court also distinguished between medical negligence and criminal negligence, noting that not all unfavourable outcomes constitute criminal negligence.
  •   In the case of Bolam v. Friern Hospital Management Committee [iii], The court held that negligence occurs when a competent professional fails to meet the standard expected of them. However, if a mistake could be made by a reasonable person exercising ordinary caution, it may not constitute negligence.
  •   The SC of India, in the case of Kusum Sharma v. Batra Hospital and Medical Research[iv], held that being negligent means either failing to do something that a reasonable man would do or doing something that a prudent & reasonable man would not do, guided by those considerations that commonly direct the conduct of human affairs.

BACKGROUND:

On National Doctor’s Day, July 1st, 2024, healthcare professionals across India protested against a specific section of the newly introduced Bharatiya Nyaya Sanhita (BNS), which replaced the colonial Indian Penal Code (IPC). The medical community expressed concerns about the criminalization of medical negligence under the new law, fearing it could lead to increased litigation and deter medical practice.

Doctor’s occupational threat, which is commonly referred to as “medical negligence,” has been made illegal under the BNS, which considers deaths caused by the “negligent act” of medical professionals to be offences.

Laws that Governed Medical Negligence: 

1. Indian Penal Code, 1860 (IPC)

Section 304A: Causing death by negligence

Whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide, shall be punished with imprisonment which may extend to 2 years, or with a fine, or both.

2. Law of Torts

Under tort law, patients can claim compensation for harm caused by negligence. This encompasses civil wrongs. Civil negligence is a form of negligence in which a patient brings an action for damages in a Civil Court against a medical attendant, who owed a duty of care if the patient had suffered injury in consequence of negligence or unskilled treatment.

3. Consumer Protection Act, 1986

Medical services fall under the Consumer Protection Act, enabling patients to seek redress for deficiencies in service through the National Consumer Disputes Redressal Commission (NCDRC).

4. Code of Medical Ethics, 2002:

The Indian Medical Council (IMC) Regulations, 2002, originated in accordance with the IMC Act, 1956, regulate disciplinary action taken against medical practitioners. Healthcare professionals who engage in improper conduct may face disciplinary action from the IMC and State Medical Councils. Such misbehaviour might include a variety of behaviours, such as medical negligence.

New law related to medical negligence under Bhartiya Nyaya Sanhita (BNS) 2023:

The Bharatiya Nyaya Sanhita (BNS) aims to enhance healthcare standards by imposing stricter penalties for medical negligence and emphasizing preventive measures. 

Section 106(1) of BNS retains the earlier phrasing of ‘any person by doing any rash or negligent act not amounting to culpable homicide’ and explicitly includes registered medical practitioners. If a medical professional commits a negligent act while performing a medical procedure, they may be punished with imprisonment of up to two years and a fine.

Comparison of Old Law (IPC) and New Law (BNS):

The previous law provides a general framework for dealing with medical negligence, but they were not very precise or strictly enforced. To increase responsibility and patient safety, the new BNS laws include more stringent fines, a strong emphasis on preventative measures, thorough documentation, and regular audits. Section 304 A of the IPC is replaced with Section 106 (1) in the BNS.

Under Section 304A of IPC, if reckless or careless behaviour results in another person’s death, but the act does not amount to culpable homicide, the person responsible can be imprisoned for up to two years, fined, or both.

However, under Section 106 of the BNS, the general punishment is up to five years of imprisonment and a fine. But if the negligent act is committed by a “registered medical practitioner” while performing a medical procedure, the punishment is comparatively less, with imprisonment of up to two years and shall also be liable to a fine.

Thus, under BNS, if found guilty, imprisonment could be mandatory.  

DIFFERENT PERSPECTIVES:

Many doctors express concerns about the stringent nature of the new laws, fearing increased litigation and penal consequences which might deter medical practice and innovation.

  • “Union Home Minister Amit Shah stated in Parliament that death occurring during medical treatment does not constitute murder. The new BNS legislation introduced by the government addresses this aspect in Section 26.” [v]
  • Dr. R.V. Asokan, the President of IMA, highlighted that Section 26 of the BNS explicitly states that doctors are outside the scope of criminal law. He called for the deletion of the provision under Section 106(1) to exempt doctors from criminal prosecution because they don’t have criminal intent as there is no crime involved.
  • Dr. Arun Gupta expressed concerns, stating, “Doctors are apprehensive. This will significantly deter doctors from treating critically ill patients. What kind of protection will they have now? Now, imprisonment is mandatory in cases of medical negligence. Think carefully before taking on a seriously ill patient.” [vi]
  • Dr. Rajeev Jayadevan, former President of IMA Cochin, explained that modern medical practice often involves high-risk treatments for severely ill patients, which can lead to side effects despite the best intentions and informed consent. He noted that fear of punishment is deterring doctors from performing their duties, leading many to choose less risky specialities. This trend could ultimately harm critically ill patients who might otherwise be saved.

IMPACTS:

The implementation of BNS is expected to significantly impact medical practice in India. These new laws aim to reduce incidents of negligence. They promise better patient protection and trust in the healthcare system.

However, balancing regulations with practical realities remains a challenge. Continuous debates between healthcare providers, regulators, and patients are crucial to refine these laws and ensure they achieve the intended outcomes without hampering medical practice.

Both patients & healthcare providers face distinct challenges within the legal framework:

Patients: often bear the burden of proof in legal cases and a lack of awareness about their legal rights can discourage them from pursuing compensation.

Doctors: The risk of litigation leads to a defensive approach to practice, which can affect their decisions.

WAY FORWARD:

Addressing medical negligence effectively requires a diverse approach, such as:

  • A thorough review of the BNS provisions, particularly Section 106(1), to address concerns raised by the medical community. Amendments could be considered to provide a clearer distinction between negligence and criminal acts.
  • Implementing legal safeguards to protect healthcare professionals from unjust prosecution and ensuring that laws are applied fairly and with consideration of medical intent.
  • Providing comprehensive education for healthcare professionals on the legal aspects of their practice, including risk management and patient communication, to help mitigate legal risks.

ANALYSIS: 

BNS is a positive step towards improving healthcare standards and patient safety in India. However, their implementation must be balanced with practical considerations for healthcare providers. Ongoing education, support systems, and clear guidelines are essential to help medical professionals adapt to these changes.

The Bharatiya Nyaya Sanhita (BNS) changes medical negligence laws in significant ways that improve patient safety and responsibility. These improvements provide difficulties for healthcare professionals. Clear guidelines and continuous education are necessary to enable the unexpected finding of a balance between regulation and practical realities in order to ensure effective implementation. To create a fair and efficient system that serves patients and medical professionals the same, it will be essential to address issues and improve the laws.  

CONCLUSION:

The Bharatiya Nyaya Sanhita (BNS) introduces significant changes to medical negligence laws aimed at improving patient safety and accountability. While these changes present challenges for healthcare professionals, clear guidelines, continuous education, and ongoing dialogue are necessary to strike a balance between regulation and practical realities. Addressing these concerns will be essential to creating a fair and effective system that serves both patients and healthcare providers. 

____________________________________________________________________________
 [i] Oxford University Press. (n.d.). Negligence. In Oxford Learner’s Dictionaries. https://www.oxfordlearnersdictionaries.com/definition/american_english/negligence
 [ii] (2005) 6 SCC 1, Appeal (crl.) 144-145 of 2004
 [iii] [1957] 1 WLR 582
 [iv] (2010) 3 SCC 480
 [v] Section 26 of BNS: Act not intended to cause death, done by consent in good faith for person’s benefit.
 [vi] The New Indian Express. (2024, July 2). Doctor up in arms as laws dealing with negligence suggest jail term, fine. The New Indian Express. 

_________________________________________________________________________________________________________

This article was written and submitted by Ettakshi Nirvan during her course of internship at B&B Associates LLP. Ettakshi is a 4th Year BB.A. LL.B (taxation) student at the UPES Dehradun.