Are doctors criminally liable for acts of medical negligence? Can a patient simultaneously proceed against the doctor under criminal law and Consumer Protection Act?
Abhay Datar, Girgaon
Under Section 304A of the Indian Penal Code (IPC), whoever causes the death of any person by doing rash or negligent act not amounting to culpable homicide is punishable with imprisonment of either description for a term that may extend up to two years or with fine or with both. Such an act is considered a cognisable offence. The Bharatiya Nyaya Sanhita (BNS) Bill, which replaces the IPC, had proposed to enhance the punishment for causing death by negligence from two to five years’ imprisonment.
However, while passing the Bill, Parliament made some concession for doctors. Accordingly, Section 106 (1) of the BNS Act, among other things, says that if the death of any person is caused by the registered medical practitioner (RMP) doing rash and negligent act not amounting to culpable homicide, s/he shall be punished with imprisonment of either description for a term which may extend to two years and shall also be liable to a fine.
It further explains that 'registered medical practitioner' means a medical practitioner who possesses any medical qualification recognised under the National Medical Commission Act, 2019.
Thus, with the enactment of BNS Act, 2023, the legal liability of doctors for causing death due to rash and negligent service remains as it stands today under the IPC. The BNS Act, 2023, will come into effect from July 1.
If a doctor has caused the death of a patient due to rash and negligent acts, depending on facts and circumstances of each case, the legal heirs can simultaneously pursue complaints in criminal court as well as in civil or consumer court. The remedies under criminal law and civil / consumer laws are different. Under criminal law, if the doctor is found guilty of medical negligence that caused the death of a patient, s/he will suffer imprisonment up to two years or / and fine. If the civil court or consumer court finds a doctor guilty of medical negligence, the legal heirs of the patient are entitled to monetary compensation.
It is also possible that the doctor who is not found guilty of rash and negligent acts in a criminal court may be found guilty of medical negligence in civil or consumer court. This is because the criminal courts require strict evidence to prove rash and negligent act whereas in civil / consumer court even a preponderance of probability is enough to prove an act of medical negligence of a doctor or a hospital.
Our society is planning to go for re-development. Can we select one builder and keep the other one on a waiting list?
D'Souza, Santa Cruz (West)
The selection of developer for re-development is governed by guidelines issued by the Government of Maharashtra under Section 79A of the Maharashtra Cooperative Societies Act. These guidelines do not provide for any such waiting list. In recent past there have been many instances where the selected builders / developers are found delaying the re-development projects from the beginning itself so much so that the societies are forced to terminate them because of such long delays. In such circumstances, your suggestion of getting a developer from the waiting list appears sensible. However, if such a possibility of keeping the second best developer in waiting is to be accepted, it would mean change of the entire voting method for selection of a developer.
Currently, the society members only vote for the developer offering the best offer. The winner must get at least 51% of the total strength of the members of the society. If your suggestion has to be accepted, there will have to be what is called as preferential voting system. In such a system, each member will be required to select first and second-choice developers. It will also have to be decided as to how long will the society keep such second-best developer in waiting.
Although Section 79A does not provide for such preferential voting for selection of a developer for re-development, societies can surely take some precautions to avoid possible delays by the developer. The society can stipulate strict timelines while giving the developer a letter of intent or letter of appointment. Each timeline must be accompanied by a penalty per day for a period of say one or two months and thereafter the society should reserve the right to terminate the developer. Such strict penalties coupled with the right of termination would surely deter a developer from delaying the re-development project for their own ulterior motives.
(Advocate Shirish V Deshpande, Chairman, Mumbai Grahak Panchayat)
Email: shirish50@yahoo.com
