Government of Bharat is mulling over to overhaul the British era IPC, CrPC & Indian Evidence Act and reorganize them as BNS, BNSS & BSS. Public objections and suggestions being heard and considered by the standing committee, many doctors and  medical associations have submitted concerns of doctors and have urged the govt for prudent and equitable outlook. A revelation from media reports that exacerbation and acerbity in punitive provisions of clause 304-A are in the pipeline and it may turn harsher from the existing 2 years incarceration to 5 years, is a cause of concern in the medical fraternity. 

Dr Vijay Batra ,veteran surgeon from Sawai Madhopur ,Rajasthan and member of the State Advisory Committee of United Private Clinics &Hospitals Association of Rajasthan (UPCHAR) elaborated concerns of doctors in detail.The cases of negligence have increased exponentially after the inclusion of healthcare in the ambit of CPA. With the evolution of its more stringent version, CPA-2019, and the prevalent pro-consumer sentiment, the trend is bound to boost further,says Dr Batra.

Dr Batra furher says that,”In a recent study, half of the consumer cases were found to be absolved by the NCDRC. Out of the remaining chunk, some more may be exculpated by the Honorable Apex Court. In other words, quite a big flock of more than half was unnecessarily forced to suffer the agony of frivolous and vexatious litigation for no sin of theirs not realizing that facing a trial is in itself a penalty.  The troubling trend of upsurge in criminal incrimination of medical professionals by affronting attendants after any mishap to extract more than what could be available as a civil remedy should be a cause for concern not only to healthcare professionals for protecting their fundamental constitutional right of being shielded against fake and frivolous prosecutions but to all involved in the delivery of justice including social ideologues as a dutiful endeavor to prevent the disruption of the delicate social fabric. Any oblivion may backlash and ultimately detriment the society, recuperation from where may be difficult well nigh impossible.” 

In the letter sent to Chairperson of standing Committee by UPCHAR, it has been categorically mentioned  that medical professionals, as any other segment, are equally a part of society and are prone to all ills and evils prevailing therein. Accordingly, it can never be averred that they should be assigned an unending impunity and never be prosecuted. But, since, they are always engaged in working with humanitarian issues that invariably entail dealing with moribund, debilitated, enfeebled, sapped, and strained segments of society wherein despite advancing technologies, algorithms, and updates unpleasant outcomes are bound to come about. It should, hence, be an unswerving imperative for all the segments of society to reciprocate them equitably and protect them from unjust and ludicrous litigation that are ultimately counterproductive distracting them from their mandatory professional obligations. 

Dr Gaurav Aggarwal, Medico-legal expert and Lawyer from New Delhi says that, despite clear guidelines fortified with illustrations by the Hon'ble Apex Court in context to criminal culpability in medical negligence cases rampant violations are widely acknowledged across the country on one or the other pretext because of the dearth of accountability and retributive penalty against violators. When mechanisms to handle the question of negligence, by the medical councils, are already well placed under the Indian judicial system, then why is the humble doctor, who topped all school examinations to be in the medical field, is subjected to double-jeopardy under consumer law, civil law, criminal law and regulatory law,asks Dr Aggarwal.

 Examples are not lacking wherein fake prosecutions have led medics to suffer protracted and painful trials before earning absolution from the highest temple of justice which invariably involves the whole of the working span of their career under undue apprehension, anxiety, and tension of the unforeseen,says Dr Aggarwal.

It's interesting to note that when the IPC was first drafted by the first law commission in the British era chaired by Thomas Babington Macaulay, the word Medical Negligence was conspicuous by its absence in society. 

In the following years, more so in  the gone by past quarter of the century, the term 'negligence' has evolved as the most endeared one and master explanation for all medical complications and mishaps. The cases of alleged criminal medical negligence are being registered by fitting them under the available provisions of the IPC scripted long back, and most probably not for the ordained accomplishment.  

Dr Suresh Vashitha, Senior Surgeon from Gurugram and former National President of Association of Surgeons of India says that ,as per trends currently in vogue, the cases of medical negligence are lodged in IPC clauses 336, 337, 338, and 304-A sometimes suffixed with clauses 259 and 269.  

Citing various illustrations in Jacob Mathew case judgment (viz. Suresh Gupta vs Govt of NCR, Haribhau Khodwa vs State of Maharashtra, Spring Meadow Hospital vs Harjot Ahluwalia, Laxman Joshi vs T Bapu Godbole, John Oni Akerele vs The king) wherein the patients died of negligent omissions, the Honorable Supreme Court, in its various verdicts adjudicated that in absence of recklessness, severity, grossness, intention (mens rea), deliberation and conspiracy the allegations did not withstand the litmus test to be indicted in the clause 304 A, says Dr Vashitha 

Dr Vashitha ,who himself is a law graduate adds that, "Intention and deliberation are never heard to be present during the treatment of the ailing subjects. Accordingly, any accusation of medical professionals in clauses 336, 337, and 338 would be wrongful invariably unless proved otherwise. Therefore, it may be fair, prudent, just, and appropriate to prohibit the indictment of medical professionals in the aforesaid clauses except in rarest of the rare cases wherein all the elements of criminal culpability can be shown to exist beyond any doubt."

 Dr Ajay Jain,Senior Paediatrician from Sikar,Rajasthan says that, doctors always work with honest intent. Results of the medical treatment  course or surgery are not in their hands. The doctrine of good faith must be widely accepted as a standard of judgment. The difference between killing or harming a person and not being able to save must be precisely understood. Some sections of the constitution relevant to the context (viz. 80, 88, 92, and 93) must be respected to end with subjectivity and arbitrariness in decisions. Society has to understand that all the mishaps during the treatment of the sick are not due to negligence.Even Hon’ble SC has said it many times that ordinary lack of care,error of judgment or medical accident should not be interpreted as medical negligence. A fair justification in differentiating natural complications &  sequel of a disease process, medical accidents, negligence of a civil nature, and reckless & deliberate negligence with criminal blameworthiness requires thorough knowledge of the subject and calls for utmost care and precision, he adds.The margin of error in clinical decision making many times is often so thin that even stalwarts fail to make an accurate decision,says Dr Jain. 

What SC says on the subject-

"To punish an innocent person for an offense that he/she may not have committed would be the highest degree of barbarism and absurdity."(The Honorable Supreme Court in Jacob Mathew's verdict). 

Resolving the position of the law, in Jacob Mathew vs State of Punjab, the Honourable Supreme Court categorically laid down the dogmas & doctrines for the right interpretation of IPC clause 304 A stating that the averments made therein shall remain applicable till the government amends the statutes to clarity and lucidity and that the word negligence in the said clause be read as recklessness ingrained in it. 

Dr Vinay Mathur a Senior Pediatric Surgeon from Gwalior says that the time is now ripe to restructure and reorganize the said clauses with precision and in parity with judicial principles of criminal justice. Dr Rajvir Arya,the veteran surgeon and Ex Head, Dept of Gen.Surgery ,SMS Hospital Jaipur has also written a similar letter to the Chairperson of the Standing Committee.Dr Arya has suggested that there should be separate provisions for dealing with cases of medical negligence in the law and medical negligence cases should be treated only as civil cases.He has suggested that criminal liability should not be fastened on qualified medical professionals conducting their professional duty.In the civil and consumer courts opinion of medical experts must always be taken and there should be a capping on compensation,Dr Arya writes in the letter.In past few years consumer courts have imposed heavy penalties on doctors and hospitals which Dr Arya feels are arbitrary and without any rationale.

Dr Ashwini Dalmiya,President of Delhi Medical Association has expressed his anger over arbitrary imposition of section 304-A on doctors in cases of alleged medical negligence.He has  informed members that DMA office bearers plan to meet Delhi CM and LG on this issue very soon and this issue will be taken very seriously by Delhi Medical Association .

Dr Lakshya Mittal,National President of United Doctors Front Association (UDFA) has also urged PMO on twitter to look into the matter and protect medical profession so that it could serve humanity fearlessly.There should be provision of strict penalties against false and frivolous complaints made against medical professionals,he adds.