The newly-formed Indian Judicial Code (BNC), which replaced the 164-year-old ‘colonial’ Indian Penal Code (IPC) from July 1, is bad news for the doctor fraternity.
Their occupational hazards – broadly referred to as ‘medical negligence’ – have been criminalised under the BNS, which considers deaths caused by ‘negligent acts’ by doctors as criminal offences, punishable by a maximum jail term of two years and a fine.
During the IPC era, no direct criminal charges were brought against doctors, although they were not completely free from consequences such as removal or suspension from practice. Cases of ‘negligence’ were tort cases and involved prosecution for compensation or referral to the state or national medical councils.
Section 304A of the Indian Penal Code was a broad section applicable to any person who by his rash and negligent act endangers the life of others.
Its counterpart in the BNS, Section 106(1), first retains the same phrase — “any person in any rash or negligent manner does any act which does not amount to culpable homicide not amounting to murder” — and then brings doctors under it, saying: “If such act is done by a registered medical practitioner while performing any 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.”
S Prabhakaran, senior advocate and president of the Tamil Nadu Advocates’ Association, says Section 106(1) will insulate surgeons and anaesthetists from risks. “If surgeons delay risky procedures by even a few seconds, it will be detrimental to patient care in emergencies,” he says. “It is not right to associate words like ‘haste and negligence’ with the medical profession.”
Experts say the new law will lead to a rise in defensive medicine. “Doctors will start ordering unnecessary tests or treatments to protect themselves from lawsuits, which may not necessarily be to the patient’s benefit,” says Vellore-based Dr. George Thomas, former editor of the Journal of Indian Medical Ethics. “This may put patients at risk and increase costs. Some doctors may even avoid high-risk patients altogether. It’s a fear-driven practice, which is actually not the best for the patient’s health.”
Dr K Senthil, president of the Tamil Nadu Government Doctors Association, says the law should distinguish between negligence and criminal negligence. “Or even delay in administering medication will be treated as criminal negligence by doctors,” he says. “Small hospitals will no longer take the risk of stabilising a patient or performing a C-section. There will be a large number of referrals to higher centres of care, including medical college hospitals.”
He said the association would also advise its members about the consequences of high-risk surgeries.
“Doctors in private and corporate hospitals may still take risks, but the biggest losers will be patients going to government hospitals, where doctors will think twice before performing risky procedures. Section 106(1) will hang over their heads like a sword of Damocles,” says advocate VS Suresh.
M Mohammed Riyaz, former additional public prosecutor of the Madras High Court, says that in its 2004 judgment (Dr Suresh Gupta vs Government of NCT of Delhi case), a Supreme Court bench of then Chief Justice RC Lahoti, Justice GP Mathur and Justice PK Balasubramanian had recorded that utmost care and caution should be exercised while initiating criminal proceedings against physicians for alleged medical negligence. “The Supreme Court felt that genuine physicians should not be unnecessarily harassed. The court said that if physicians keep trembling in fear of facing criminal prosecution, they will not be able to save lives.”
He said once introduced, the criminal procedure would cause grave embarrassment and harassment to medical professionals. He said statutory rules or executive directions incorporating certain guidelines should be framed and issued by the government in consultation with the National Medical Council.
V Kannadasan, member of the State Human Rights Commission (SHRC), says that even now when they receive a complaint, they send it through a board of qualified medical professionals or doctors before taking cognizance of the complaint for investigation. “We do not call doctors on a whim, especially when we ourselves do not have medical knowledge. Similar difficulties will be faced by police personnel, who will now be forced to register FIRs against doctors citing Section 106 (1) of the BNS,” he says.
Kannadasan said the existing district-level medical board could be involved in the process and an FIR would be lodged only after getting their opinion.
Riyaz says that although it is a bailable, cognizable offence, FIRs also carry penal consequences attached to them, and a busy surgeon may face multiple FIRs throughout his career.
Most hospitals and doctors admit that mistakes happen. “We talk about mistakes, investigate poor outcomes and near misses,” says Dr Thomas. “Medical training in the country is not uniform, many colleges still do not have adequate clinical material (patients), and doctors are forced to practice independently as soon as they leave medical college. Most patients opt for small private hospitals because of lower treatment costs, and mistakes can happen. Mechanisms must be introduced to build trust between doctors and patients, not break it.”
RGGH dean Dr E Theranirajan says medical college hospitals should have reserved beds for complex surgeries. “Most of our patients are poor and won’t even have the option of going to private hospitals. It would be a disaster if doctors at our hospital refuse to perform high-risk surgeries,” he says.
Dr R.V. Ashokan, president of the Indian Medical Association, has urged the government to abolish the section. “When we spoke to the government after the draft was released, they considered our request. The punishment was reduced from five years to two years, but we still consider it inadequate,” he said.
The association is creating awareness about Section 26 of the BNS which provides marginal protection for an act done in good faith with consent for the benefit of a person, which is not intended to cause death. “It has been clarified in the example that if a doctor performs surgery with the consent of the patient for his benefit, it will not be considered a crime on the part of the doctor if the patient dies,” says Ashokan.
Now that the law has come into force, the medical fraternity must wake up and take legal safeguards. As the Latin proverb goes, Vigilantibus non dormantibus iura subvenient – the law helps the vigilant, not the lazy.
Email your feedback with name and address to southpole.toi@timesgroup.com
Their occupational hazards – broadly referred to as ‘medical negligence’ – have been criminalised under the BNS, which considers deaths caused by ‘negligent acts’ by doctors as criminal offences, punishable by a maximum jail term of two years and a fine.
During the IPC era, no direct criminal charges were brought against doctors, although they were not completely free from consequences such as removal or suspension from practice. Cases of ‘negligence’ were tort cases and involved prosecution for compensation or referral to the state or national medical councils.
Section 304A of the Indian Penal Code was a broad section applicable to any person who by his rash and negligent act endangers the life of others.
Its counterpart in the BNS, Section 106(1), first retains the same phrase — “any person in any rash or negligent manner does any act which does not amount to culpable homicide not amounting to murder” — and then brings doctors under it, saying: “If such act is done by a registered medical practitioner while performing any 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.”
S Prabhakaran, senior advocate and president of the Tamil Nadu Advocates’ Association, says Section 106(1) will insulate surgeons and anaesthetists from risks. “If surgeons delay risky procedures by even a few seconds, it will be detrimental to patient care in emergencies,” he says. “It is not right to associate words like ‘haste and negligence’ with the medical profession.”
Experts say the new law will lead to a rise in defensive medicine. “Doctors will start ordering unnecessary tests or treatments to protect themselves from lawsuits, which may not necessarily be to the patient’s benefit,” says Vellore-based Dr. George Thomas, former editor of the Journal of Indian Medical Ethics. “This may put patients at risk and increase costs. Some doctors may even avoid high-risk patients altogether. It’s a fear-driven practice, which is actually not the best for the patient’s health.”
Dr K Senthil, president of the Tamil Nadu Government Doctors Association, says the law should distinguish between negligence and criminal negligence. “Or even delay in administering medication will be treated as criminal negligence by doctors,” he says. “Small hospitals will no longer take the risk of stabilising a patient or performing a C-section. There will be a large number of referrals to higher centres of care, including medical college hospitals.”
He said the association would also advise its members about the consequences of high-risk surgeries.
“Doctors in private and corporate hospitals may still take risks, but the biggest losers will be patients going to government hospitals, where doctors will think twice before performing risky procedures. Section 106(1) will hang over their heads like a sword of Damocles,” says advocate VS Suresh.
M Mohammed Riyaz, former additional public prosecutor of the Madras High Court, says that in its 2004 judgment (Dr Suresh Gupta vs Government of NCT of Delhi case), a Supreme Court bench of then Chief Justice RC Lahoti, Justice GP Mathur and Justice PK Balasubramanian had recorded that utmost care and caution should be exercised while initiating criminal proceedings against physicians for alleged medical negligence. “The Supreme Court felt that genuine physicians should not be unnecessarily harassed. The court said that if physicians keep trembling in fear of facing criminal prosecution, they will not be able to save lives.”
He said once introduced, the criminal procedure would cause grave embarrassment and harassment to medical professionals. He said statutory rules or executive directions incorporating certain guidelines should be framed and issued by the government in consultation with the National Medical Council.
V Kannadasan, member of the State Human Rights Commission (SHRC), says that even now when they receive a complaint, they send it through a board of qualified medical professionals or doctors before taking cognizance of the complaint for investigation. “We do not call doctors on a whim, especially when we ourselves do not have medical knowledge. Similar difficulties will be faced by police personnel, who will now be forced to register FIRs against doctors citing Section 106 (1) of the BNS,” he says.
Kannadasan said the existing district-level medical board could be involved in the process and an FIR would be lodged only after getting their opinion.
Riyaz says that although it is a bailable, cognizable offence, FIRs also carry penal consequences attached to them, and a busy surgeon may face multiple FIRs throughout his career.
Most hospitals and doctors admit that mistakes happen. “We talk about mistakes, investigate poor outcomes and near misses,” says Dr Thomas. “Medical training in the country is not uniform, many colleges still do not have adequate clinical material (patients), and doctors are forced to practice independently as soon as they leave medical college. Most patients opt for small private hospitals because of lower treatment costs, and mistakes can happen. Mechanisms must be introduced to build trust between doctors and patients, not break it.”
RGGH dean Dr E Theranirajan says medical college hospitals should have reserved beds for complex surgeries. “Most of our patients are poor and won’t even have the option of going to private hospitals. It would be a disaster if doctors at our hospital refuse to perform high-risk surgeries,” he says.
Dr R.V. Ashokan, president of the Indian Medical Association, has urged the government to abolish the section. “When we spoke to the government after the draft was released, they considered our request. The punishment was reduced from five years to two years, but we still consider it inadequate,” he said.
The association is creating awareness about Section 26 of the BNS which provides marginal protection for an act done in good faith with consent for the benefit of a person, which is not intended to cause death. “It has been clarified in the example that if a doctor performs surgery with the consent of the patient for his benefit, it will not be considered a crime on the part of the doctor if the patient dies,” says Ashokan.
Now that the law has come into force, the medical fraternity must wake up and take legal safeguards. As the Latin proverb goes, Vigilantibus non dormantibus iura subvenient – the law helps the vigilant, not the lazy.
Email your feedback with name and address to southpole.toi@timesgroup.com
