MEDICAL NEGLIGENCE AND LIABILITY OF DOCTORS IN INDIA

Authored By: Charmy Jain

Marwadi University

Introduction-

The medical profession is regarded as a reputable, dignified and powerful profession as it saves the lives of people. The medical professionals in this profession are believed to be the saviours of life after the Almighty. Therefore, as well said, with great power comes great responsibility, so even the patients expect these professionals to exercise a reasonable duty of care while they are undergoing the medical treatment to cure and save their lives. It is believed that though these professionals might not save all the lives of the patients who come to them but they are expected to use their specialised and skilled knowledge with proper and reasonable care. Therefore, to hold medical professionals accountable for their negligence act, the term “Medical Negligence” was coined.

The term Medical Negligence comes from two words- Medical & Negligence. The term “Medical” refers to the person or thing connected with the treatment or medicine while the term “Negligence” means failure to take a reasonable duty of care or simple words, it can be said carelessness while performing the duty of care. Therefore, Medical Negligence can be defined as the breach of duty on the part of medical professionals who were supposed to exercise a duty of reasonable care. It refers to the failure of duty which is to be fulfilled by medical professionals. As a result of medical negligence, the patient suffers injury or harm. It should also be noted that not all medical errors can be termed as medical negligence but only those conduct that falls below the accepted standards. For instance, when a doctor prescribes a medicine to the patient after the proper medical treatment, however suffered unpredicted allergic reaction and his health worsens. This cannot be termed as medical negligence but just a medical error as the doctor followed proper medical standards. However, if a patient clearly mentions that he is allergic to a particular drug but the doctor still prescribes the same drug without listening to it and consequently the patient suffers serious harm. Another example of medical negligence could be the medical professional operating the patient while he is drunk.

Medical negligence can involve civil as well as criminal liability depending upon the seriousness of the act. In the cases where the patient does not suffer huge harm and patient sues the doctor for compensation. While in the case where the patient suffers serious injuries or death due to the gross negligence of a doctor leads to the imposition of criminal charges. The main difference between the two liabilities is that the civil liability of medical negligence focuses on compensating the victim while the criminal liability gives stricter punishment and fines. This research article discusses the legal provisions relating to medical negligence with a comparison and changes in earlier criminal law i.e. IPC of 1860 and the new criminal law i.e. BNS of 2023. The article further discusses the major judgments and case laws relating to medical negligence, the contemporary issues involved along with the critical analysis of the topic.

Legal Provisions-

In India, earlier medical negligence was governed by the Indian Penal Code of 1860, these criminal laws in India were undergone through transformation which was restructured to the Bhartiya Nyaya Sanhita of 2023. The new criminal law i.e. Bhartiya Nyaya Sanhita came into force on 1st July 2024. Back then, the Medical Negligence was defined under Section 304A of the Indian Penal Code which does not explicitly mentions about the medical practitioner. It prescribed the same punishment for every person who causes the death of another person through a rash or negligent act and did not distinguish medical professionals from others.

However, Section 106 under Bharatiya Nyaya Sanhita deals with the offence of causing death by negligence. The said provision states that “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.” Further, the explanation clarifies about the term registered medical practitioner. Therefore, in the cases where the death of a person is caused negligently by a registered medical practitioner while discharging his medical duties, the punishment is limited to that of the imprisonment for a term extended to 2 years with a fine.

Therefore, though medical negligence is now recognized offence under BNS, 2023 but it is not mentioned as a separate offence, rather it is covered within the provision of rash and negligent act. This change of including and recognising the negligent act of a registered medical practitioner with the lesser punishment within the same head of offence of causing death by negligence shows the intent of the legislature to protect the medical professionals from numerous criminal proceedings while performing their duty of medical treatment. However, it does not complete absolves their liability but still holds them accountable with some level of punishment which though is not the same as of other normal citizens of the country who would act in a negligent manner.

In addition to this provision, there are other offences under the Bhartiya Nyaya Sanhita, 2023 which impose more criminal liability on the medical practitioners for their negligent acts. Section 125 of the Bhartiya Nyaya Sanhita of 2023 punishes the person for endangering human life or the personal safety of others while acting rashly or negligently. The punishment for such an act extends to 3 months of imprisonment or fine of up to 2500 or both. The new criminal law i.e. BNS does not state the separate provisions relating to hurt or grievous hurt caused by negligence which the earlier criminal law, the Indian Penal Code of 1860 had under Section 337 and Section 338. However, the new criminal law mentions the separate provisions for negligence relating to specific situations such as handling poisonous substances or handling machinery or handling animals, etc.

III. Case Laws-

There have been several judicial pronouncements through which criminal liability in medical negligence arises. All these pronouncements together tell the requirement of a higher degree of negligence for arising criminal liability in medical negligence. The case must establish that the act of a medical practitioner is an amount of gross negligence or recklessness. This principle was upheld in the case of Jacob Mathew v. State of Punjab where the Supreme Court established that negligence must be gross i.e. relating to a high degree of due care and not merely a lack of just due care. The case must show complete disregard for life and safety which would be more than just an error. This principle was evolved to protect the doctors from unnecessary criminal proceedings which may arise from a small-small mistake. The doctors have to deal with a number of patients in their profession while dealing with life and death situations, therefore, to protect their work, the courts drew a line of gross negligence. The Supreme Court in this case adopted the Bolam test which was earlier established in the case of Bolam v. Friern Hospital Management Committee. The Bolam test protects the acts of doctors from falling under the ambit of negligence if their conduct was proper in accordance with the practice accepted by a responsible body of medical practitioners. Therefore, only serious negligence attracts the criminal liability of medical negligence.

The idea of recklessness was not established in Indian courts but it came from the English principle established in the case of R. v. Lawrence and R. v. Caldwell which meant recklessness as ignoring the known risk or which is very well obvious in nature i.e. a person knows about the risk but he is still engaging in the act. Or in other words, recklessness can be said to the situation where an accused has failed to take a risk or consciously ignored it, where a reasonable or prudent person would have foreseen the possible risk of causing serious harm. This depicts that medical negligence is not just carelessness but involves gross negligence.

Even in the case of Martin F. D’Souza v. Mohd. Ishfaq, the court held that the main difference between the civil and criminal negligence is that the civil liability only involves the failure of duty while the criminal liability requires the element of gross negligence or recklessness which will thereby indicate the disregard for the life and safety of the patient.

Therefore, through various judicial pronouncement it can be very well established that where a doctor is held liable for not taking proper due care there civil liability will arise which would fall under tortious act while if the act of doctor involves serious (gross) and reckless negligence which would result in directly causing death or harm to patient then the act will construe under criminal liability of medical negligence.

Contemporary Issues-

In recent years, several issues have highlighted the legal framework governing the criminal liability of doctors under the offence of medical negligence. A significant contemporary case took place in Jharkhand where the High Court of Jharkhand in Feb 2026, orders the FIR over the case involving HIV inflicted blood being transfused to minor thalassemia patients. In this case multiple children were transmitted with contaminated blood in the government hospital and later on testing they were diagnosed with HIV positive. The High noted the incident and took the serious step by directing actions against the medical officers. The High Court directed the state authorities to go on investigation and submit the report as the issue involves gross medical negligence. The issue goes beyond just the simple carelessness and shows reckless disregard of minor patients which is risking their lives. The investigation revealed that the blood bank was operating without a valid license, this depicts that the liability does not lie only with the individual doctor but it extends to hospital authorities, blood bank officials and administrative staff. This issue tells that medical negligence does not involve negligence on part of just a doctor but it can be collective liability also as here the entire institutional was involved in attracting criminal liability under medical negligence. The failure occurred at multiple levels such as testing, storage and supervision.

Another contemporary issue occurred in the state of Maharasthra in Kolhapur Division where a doctor stationed at a rural hospital in Panhala was intoxicated, unable to stand proper when patient was admitted and therefore, was not in a situation to treat the patient. This led to the disciplinary actions against him and got investigation against him. Such conduct also amounts to gross negligence and in serious cases it could attract criminal liability under Section 106 of the Bharatiya Nyaya Sanhita, 2023. Even in Gujarat, disciplinary action was taken against doctors for negligence linked to maternal deaths and improper procedures which included conducting surgery without an anaesthetist. This again reflects that negligence arising from violation of standard medical protocols and consequently the negligence act can cause license suspension and attract criminal punishments.

Critical Analysis-

The law relating to medical negligence and criminal liability in India shows the attempt to balance both the interests i.e. the protection of patients and the protection of medical professionals. This balance has been further refined with the introduction of the Bharatiya Nyaya Sanhita, 2023 by explicitly mentioning the position of doctors and limiting their criminal liability in cases of medical negligence. Section 106 of the BNS, states a lesser punishment for registered medical practitioners which clearly shows legislative intent to prevent over-criminalization of the medical profession. This is a progressive step, especially in view of increasing incidents where doctors while performing their professional duty were subjected to criminal prosecution even for unintentional errors.

However, even after this advancement, the law continues to suffer from ambiguities. One of the most significant issues is the absence of a clear statutory definition of “gross negligence.” Criminal liability is supposed to arise only when negligence is of a very serious degree, yet the determination of what constitutes such seriousness is still left to judicial interpretation. Courts continue to rely on precedents like Jacob Mathew v. State of Punjab, which were developed years back. This creates uncertainty and inconsistency in application, especially at the level of police investigation where legal understanding may be limited.

The issue of liability has also become more complicated in today’s era of healthcare. Earlier times, a single doctor was responsible for treatment, however, the contemporary medical practice involves multiple people and authorities which includes hospitals, technicians, administrators and even staff. The case involving contaminated blood transfusion highlight that negligence is often collective rather than individual. However, the current legal framework does not adequately address this shared or institutional liability which leads to either overburdening individual doctors or absolving the responsibility altogether.

The application of traditional legal principles such as the Bolam Test also needs reconsideration. While it protects doctors by judging their conduct against accepted medical standards, it has been criticized for being overly doctor-centric and insufficiently responsive to patient rights. In an era where patient autonomy and informed consent are gaining importance, reliance solely on professional opinion may not be adequate. There is a need to evolve towards a more balanced standard that incorporates both medical expertise and patient expectations.

Conclusion

In nutshell, The Bharatiya Nyaya Sanhita, 2023 is not a ultimate complete solution, even though it represents a significant changes by recognising the unique space of medical professionals and limiting their criminal liability. The use of old age principles, absence of clear definitions, lack of procedural safeguards and failure to address systemic and technological challenges continue to be problem in effective implementation. There is a need of more comprehensive approach which would involve statutory clarity, institutional accountability and specialized adjudicatory mechanisms to ensure that the law achieves its ultimate objective of delivering justice with protecting the rights of medical profession and its patients.

Reference(S):

Cases

Jacob Mathew v. State of Punjab, (2005) 6 S.C.C. 1 (India)

Bolam v. Friern Hospital Management Committee, [1957] 1 W.L.R. 582 (Q.B.)

R. v. Lawrence, [1982] A.C. 510 (H.L.)

R. v. Caldwell, [1982] A.C. 341 (H.L.)

Martin F. D’Souza v. Mohd. Ishfaq, (2009) 3 S.C.C. 1 (India)

Legislations

Bhartiya Nyaya Sanhita, 2023

Indian Penal Code, 1860

Secondary Sources

SCC Website