Introduction 

• Significant changes have been seen with the introduction of Bharatiya Nyaya Sanhita, 2023 (BNS) in Medical Negligence. 
• Medical negligence occurs when the doctor fails to provide due care to the patient which results in harm to the patient. 

What is Medical Negligence? 

• Negligence means when a person breaches his duty and lacks proper care towards the other person which he is obliged to is causing negligence. 
• Medical negligence occurs when a medical practitioner fails to perform his duty with due care and attention, which causes harm to the patient. 
• The patient may suffer financial losses, mental agony, loss of life, trauma. 

What are the Essentials of Medical Negligence? 

• The professional must have a legal duty of taking due care. 
• The legal duty must be breached. 
• There must be an injury or harm to the patient. 
• The injury to the patient must have a direct link with the breach of duty. 

What is the New Law Related to Medical Negligence Under BNS?

• With the aim to enhance healthcare standards, stringent punishments have been imposed for medical negligence under BNS. 
• Earlier the concept of medical negligence was covered under Section 304A of the Indian Penal Code, 1860. 
• The same has been covered under Section 106 of BNS. 
• In the new provisions of BNS the punishment for the act of Medical Negligence has been enhanced to 5 years. 
• A separate punishment has been added to the provisions for the act committed by a registered medical practitioner where the punishment is comparatively less to the general punishment i.e. up to 2 years. 
• Basically, under BNS the act of medical negligence must be mandatorily punished with imprisonment. 

What is Section 106 (1) of BNS? 

• Section 106 of BNS states the provisions for Causing death of a person by Negligence. 
• According to the clause (1) of Section 106 provision related to medical negligence has been stated as: 
  • 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 
  • If such an 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.  
  • The provision is further explained by an explanation as for the purposes of this sub-section, “registered medical practitioner” means a medical practitioner who possesses any medical qualification recognized 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.  

What is the Impact of Introduction of Medical Negligence Under BNS? 

• The main aim of the introduction of stringent punishments is to reduce the acts of negligence. 
• The duty of a medical practitioner is to take care of the patient and to ensure utmost protection. 
• Patients often have the burden of proof of legal cases and lack of awareness amongst the laws discourage the enforcement if legal rights available to the aggrieved patients and victims of medical negligence. 
• Doctors sometimes, due to the fear of legal proceedings, fail to make decisions and may sometimes cause harm to the patients. 

What are the Cases Related to Medical Negligence? 

• Jacob Mathew v. State of Punjab and Another (2006): 
  • In this case the Supreme Court held 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 further stated the difference between medical negligence and criminal negligence. 
• Bolam v. Friern Hospital Mana gement Committee (2005):  
  • The court in this case held that negligence occurs when the expected standards are not followed by the medical practitioner, however if due care has been taken then negligence cannot be constituted. 
• Kusum Sharma v. Batra Hospital and Medical Research (2010):  
  • In this case the Supreme Court held that being negligent means doing or not doing something that a prudent man would do or not do.

Conclusion

The BNS has introduced the medical negligence concept to improve health and safety standards and accountability. For creating a fair and effective legal system the concerns of both the patients and the doctors have to be addressed.