304A and Medical Negligence

“Negligence is the rust of the soul that corrodes through all her best resolves.”

- Owen Feltham

Over the last few decades, medical negligence has become a critical and contentious issue in the nation. Even though the medical practice is regarded as one of the most noble professions, there are still cases of negligence in the medical field. Unfortunately, this kind of carelessness can have serious repercussions; such as the patient’s death, a permanent or partial disability, or other types of distress that have a negative effect on their well-being. “Out of an estimated 52 lakh medical injuries in India, 98,000 people lose their lives because of medical negligence every year. It is a serious issue for the country that 10 people fall victim to medical negligence every minute and more than 11 people die every hour due to medical error in India.”1 The relationship between doctors and patients has become more commercialised in recent decades, inviting more conflict on the issue of medical negligence.

Defining medical negligence

Unfortunately, no law in effect in India defines medical negligence as anything other than “the improper or unskilled treatment of a patient by a medical practitioner”.2 Criminal negligence would mean gross and culpable neglect and failure to exercise reasonable care and precaution.3 Today, medical negligence means negligence on the part of the doctor to act by medical standards in vogue, being practiced by an ordinarily reasonably competent man practicing the same art.4 Medical malpractice occurs when a patient sustains injuries due to the treatment provided by a doctor or another healthcare provider, a situation commonly referred to as medical negligence.5 Criminal negligence as understood by the Courts is the gross and culpable neglect or failure to exercise reasonable care and precaution to guard against injury, either to the public generally or to an individual in particular.6 The main definition of negligence is an outcome of duty breaches, carelessness, and duty breaches.7 If a medical professional does something that is not in line with the recognised medical standard of care, that professional is deemed medically negligent. When there is a high degree of culpability in a case of medical negligence, medical professionals can be held accountable under 304A of IPC. Section 304A of IPC states that whoever causes the death of another person by reckless or careless conduct that does not amount to culpable homicide shall be punished by imprisonment for up to two years, a fine, or both. It comes into the picture in cases where death is caused due to gross negligence by medical professionals. In this section presence of intention is immaterial. The victim may be able to file a criminal or civil lawsuit against the medical professional, depending on the specifics of the case. Doctors have a higher protection than normal citizens when it comes to death by negligence.8 The standard of proof should be a very high state of recklessness and deliberate wrong, i.e. a higher degree of morally blameworthy conduct, not necessarily located in a desire to cause harm but a total disregard for the possible consequences of his act.9

The guiding principles of medical negligence- Jacob Mathew and Bolam Test

Bolam Test, the guiding principle used to determine medical negligence cases, is based on evaluating the behavior of an ordinarily skilled person who has the requisite knowledge for a particular circumstance. It does not matter if the person demonstrated the abilities of the most accomplished specialist in the field. A professional who possesses the necessary skills cannot be considered negligent if they exercise a reasonable amount of caution and care. The question of a medical professional’s criminal negligence under the IPC was brought before the court in the seminal case of Jacob Mathew v. State of Punjab10. In this case, the Supreme Court restated the idea from the Bolam case11 and held that one of two things that can determine whether a professional is considered negligent is either he/she did not possess the requisite skill, or, in a particular instance, did not exercise the skill he did possess with reasonable competence. The court stated that the standard of an ordinary competent person using ordinary skill in that specific profession is used to determine whether or not the accused was negligent. It is impractical to anticipate that each professional will reach the pinnacle of proficiency in their respective domain. Even though a highly qualified professional might have better attributes, this should not be the only criteria used to evaluate the performance of the professional who is being accused of negligence.

In Jacob Mathew, the Supreme Court set a condition to prosecute a medical professional for medical negligence. The Apex Court held in para 48 observed that “to prosecute a medical professional for negligence under criminal law it must be shown that the accused did something or failed to do something which in the given facts and circumstances no medical professional in his ordinary senses and prudence would have done or failed to do. The hazard taken by the accused doctor should be of such a nature that the injury which resulted was most likely imminent.” The Court in Jacob Mathew sounded a note of caution to ensure that doctors are not subjected to frivolous and unjust prosecutions. The Court laid down guidelines to ensure that medical practitioners are not unjustly harassed by criminal prosecution, till such time guidelines are framed by the government in this regard. The guidelines in brief are as under:

  • A private complaint cannot be considered unless the complainant has provided the court with prima facie evidence, and reliable opinion from another qualified doctor to substantiate the accusation that the accused doctor acted rashly or negligently.
  • The investigating officer should obtain a fair and objective medical opinion before taking any action against a doctor who is suspected of acting carelessly or negligently. This opinion should apply the Bolam test to the facts gathered during the investigation, preferably from a government-employed doctor qualified in the relevant medical practice.
  • A doctor who has been accused of recklessness or carelessness cannot be arbitrarily detained (just because he has been charged). The doctor may not be arrested if it is not required to collect evidence or advance the investigation, or if the investigating officer is confident that the doctor would not cooperate with the prosecution if he were to be arrested.

Despite the caution sounded by the judgment of the Supreme Court in Jacob Mathew case, the number of cases against doctors appears to be on the rise.12

In the case of Dr. Suresh Gupta’s13 case, the full bench of the Supreme Court of India declared that extreme care and caution should be exercised while initiating criminal proceedings against medical practitioners for alleged medical negligence. The court said that doctors would not be able to save lives if they were to tremble with the fear of facing criminal prosecution. There are a few exceptions to the patient's rights outlined above. For doctors accused of criminal culpability, sections 80 and 88 of the Penal Code, 1860, provide defences. Section 80 of the Indian Penal Code states that nothing is done by accident or misfortune, and without any criminal purpose or knowledge, constitutes an offence when it is done lawfully, using lawful methods, and exercising appropriate care and caution. Section 88 of the Indian Penal Code states that an individual cannot be prosecuted for a crime if they act in good faith to benefit another person, do not wish to cause harm to the other person even if there is a risk, and have the patient's express or implicit consent.

Medical negligence and Bharatiya Nyaya Sanhita

The Bharatiya Nyaya Sanhita (BNS) 2023 adds a new clause to the penal code that addresses doctors in particular when it comes to the punishment for causing death through medical negligence. It is important to note that doctors are not specifically covered by Section 304A of the IPC, which punishes for causing death through negligence. While Sanhita increases the penalty for death caused by negligence to a maximum of 10 years of imprisonment in certain circumstances, the punishment for doctors in such cases is limited to a maximum of 2 years of imprisonment. Section 106 of BNS says …if such act is done by a registered medical practitioner while performing a 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. In situations where medical negligence causes a death, doctors may also be fined.


These decisions may be revolutionary in the protection of physicians and the interests of consumers, but they raise some important questions. Firstly, objections have been raised as to the idea of negligence itself being criminal. Jurists have argued that since negligence connotes only a state of carelessness of the mind, it should not be culpable at all, since there is no mens rea involved,14 as doing so would bring it under strict or absolute liability and negate the entire idea of a tort. To tackle this problem of medical negligence, and unnecessary prosecutions and deter a litigious mentality, the Supreme Court has set rules regarding the criminal prosecution of medical practitioners. Because of these guidelines, fewer false medico-legal cases are being filed, which has lessened the harassment that doctors face.

This article is authored by Vishal Kumar, a Delhi based lawyer.

1 Laxmish Rai, Medical Negligence and Evolving Judicial Activism, Int ernational Journal of Law and Social Sciences (IJLS) , Volume 4, Issue 1, 2018.
2 Kashin Nagpal, Negligence and Medical Negligence (Jacob Mathews v. State of Punjab), 2.4 JCLJ (2022) 2090. http://scc.duelibrary.in/DocumentLink/7647DnTD
3 Bhalachandra Waman Pathe v. State of Maharastra, MANU/SC/ 0042/1968.
4 Harvey Teff, Reasonable Care: Legal Perspectives on the Doctor-Patient Relationship, (Oxford: Clarendon Press, 1994), at 175.
5 Haripriya Padmanabhan, Medical Negligence — Need for Safeguards, (2009) PL (CL) March 18. http://scc.duelibrary.in/DocumentLink/WLximtEG
6 Bhalachandra Waman Pathe v. State of Maharastra, MANU/SC/ 0042/1968.
7 Bhavna Tewari, Medical negligence during Covid-19 : Did we successfully implemented Section 304A IPC?, 2.3 JCLJ (2022) 283.
8 Anona Dutt, Are doctors protected from criminal prosecution for medical negligence under the new penal code? , The Indian Express, Dec 22, 2023( last visited on Jan 18,2024). https://indianexpress.com/article/health-wellness/doctors-protected-criminal-prosecution-medical-negligence-new-penal-code-9078922/
9 Dr. Suresh Gupta v. NCT Delhi MANU/SC/0579/2004.
10 MANU/SC/0457/2005.
11 Bolam v. Friern Hospital Management Committee, (1957) 1 WLR 582 : (1957) 2 All ER 118.
12 Haripriya Padmanabhan, Medical Negligence — Need for Safeguards, (2009) PL (CL) March 18. http://scc.duelibrary.in/DocumentLink/WLximtEG
13 Dr. Suresh Gupta vs. Govt of NCT Delhi, MANU/SC/0579/2004.
14 Andrew P. Simester, “Can Negligence Be Culpable?” Oxford Essays in Jurisprudence (Jeremy Horder ed., Oxford: Oxford Universal Press, 1999), at 86.
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