Medical Negligence and the Bharatiya Nyaya Sanhita Act, 2023

Описание: Medical Negligence and the Bharatiya Nyaya Sanhita Act, 2023

Are doctors protected from criminal prosecution for medical negligence under the Bharatiya Nyaya Sanhita (BNS)?

Doctors will not be exempt from imprisonment if their negligent actions lead to the death of their patient. The new Bharatiya Nyaya Sanhita (BNS) — passed by both Houses of the Parliament this session and meant to replace the Indian Penal Code — still maintains a prison term of up to two years for death due to medical negligence.

When it comes to deaths caused by medical negligence, BNS does not change much. Cases of gross medical negligence, so far, were being registered under section 304A of the Indian Penal Code that stipulated up to two years of imprisonment, or fine, or both for the doctor responsible. While BNS increased the term of imprisonment up to five years for other categories of deaths caused by negligence such as traffic accidents.

As per the BNS Act 2023, Sec 106. (1) 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.

Doctors have a higher protection than normal citizens when it comes to death by negligence. Consider the case of ‘Dr Suresh Gupta Vs Govt of NCT of Delhi,’ where the patient died during surgery to correct a nasal deformity and the allegations were that the doctor did not use a proper ET tube to prevent bleeding. The Supreme Court had then said that the complaint against the doctor must show negligence or rashness of such a higher degree as to indicate mental state, which can be described as totally apathetic towards the patient. This decision was reiterated in the case of Dr Jacob Mathews where the court concluded that the negligence had to be of a very high order to condemn medical practitioners and must be addressed in consultation with expert opinion.

Regarding Rash and Negligent act leading to simple injury (hurt) and grievous injury ...

125. Whoever does 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 three months or with fine which may extend to two thousand five hundred rupees, or with both, but—

(a) where hurt is caused, 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 thousand rupees, or with both;

(b) where grievous hurt is caused, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine which may extend to ten thousand rupees, or with both