Doctors fear new wording in the criminal law on “medical negligence”; IMA threatens strike

New Delhi: While India’s health ministry tried to allay doctors’ fears over the new penal code, a section of medical professionals on Tuesday said the Union government had done nothing to address the core problem: the fear of jail time for “medical negligence” due to the wording used in the law.

A section of the Bharatiya Nyaya Sanhita dealing with deaths due to medical negligence states that doctors shall be punished with imprisonment “and” fine, whereas the older law (Indian Penal Code) provided for imprisonment “or” fine “or” both.

The Union Health Ministry reiterated in a statement on Tuesday: “If licensed doctors are found negligent while performing medical procedures, they will be punished with imprisonment for a term which may extend to two years and a fine.”

Shortly after the three new criminal laws came into force on July 1, some doctors expressed concerns about the language used in the laws, which could result in the new law being harsher on doctors than the one enacted by the British.

“IPC 304 A, adopted from British India, was more lenient towards Indian doctors and provided for imprisonment or fine or both, while BNS 106 (1), enacted by the present government, is more stringent and provides for imprisonment and fine. The ministry’s new statement only confirms our fears,” said KV Babu, an ophthalmologist in Kannur in Kerala who first raised the concerns. DH.

A ministry spokesman did not respond to questions about doctors’ concerns about the language used in the bill.

However, in a statement, the ministry said that BNS had retained penal provisions similar to those under Section 304A of the IPC.

The clarification came after the Indian Medical Association – India’s largest doctors’ association – launched a campaign against the new law, demanding an exemption for doctors from prosecution under Section 106 (1) BNS, which deals with “negligent homicide”.

“Criminal liability in cases of medical negligence is legally controversial. To establish criminal liability, it is important to determine whether there was an intention to cause harm (mens rea). In cases of criminal medical negligence, the intention to cause harm has been replaced by gross negligence. Gross negligence is not defined in the BNS,” the IMA explained in a letter to all its units.

The association explains that, in the absence of intent (mens rea), doctors can only be held liable under civil law (tort law).