What Is Criminal Medical Negligence?

"The incompetence regarding body and vehicle armor rises almost to a level of criminal negligence." — John Olver

We've all seen the breaking news: a young patient dies in a hospital, and grieving relatives demand justice outside the gates. What we almost never see reported is the other half of the story — a negligent doctor actually being convicted for the death they caused.

How It Usually Begins

When someone falls seriously ill and needs indoor treatment, they walk into a hospital hoping the doctors will cure them. Patients trust doctors more than they trust themselves. They follow instructions without question, because medicine is considered a noble profession — and a doctor's own success depends on treating people honestly and carefully.

In most private hospitals, a duty doctor (qualified or not) attends first and calls in the consultant. The consultant arrives, examines the patient with practiced gravity, and — like a scene out of a film — reassures the family: the patient is serious, but you've come in time, he's in safe hands, some costly tests are needed, then an operation, and yes, the expense will be a little high, but it's for the patient's own good. After a speech like that, who dares refuse consent?

And so the patient is admitted — without the family ever realizing that not everyone wearing a stethoscope is a qualified doctor, and not everyone in an apron is a trained nurse or technician. These are often the very hands entrusted with the patient's care. Consent forms, which by law should be explained and signed before the operating surgeon, are frequently just handed to a nurse for signature — because the surgeon doesn't want to "waste time" that could go toward the next surgery. The surgeon knows this, and looks past it anyway, for the sake of the fee. Is that not negligence by omission?

Then comes the climax: the ventilator, the ICU, the expensive injections, the last-minute cardiac massage — and finally, the verdict: "Operation successful, but patient died."

No family ever imagines, when they walk into a hospital, that they will one day be filing a criminal complaint over their loved one's death. Yet many are left facing an unexplained, unexpected loss — and being told it was an "error," a "mistake," an "accident," or a "known complication." Not negligence. Just pay the bill and take the body.

For the grieving family, this sudden death feels like nothing less than murder — and, through tears, they go looking for justice.

The Run for Justice

Doctors enjoy strong legal protection: no FIR, no arrest, and no proceedings until an expert medical committee opines on negligence. Only after clearing this near-bulletproof barrier do victims even reach the courtroom. The relevant law — Section 106 of the Bharatiya Nyaya Sanhita (BNS) — covers causing death by negligence, and applies to doctors much the same way it applies to vehicle drivers.

The Law: From IPC to BNS

The Bharatiya Nyaya Sanhita came into force on 1 July 2024, replacing the Indian Penal Code.

Section 304A, IPC (old law): Causing death by a rash or negligent act not amounting to culpable homicide was punishable with up to two years' imprisonment, a fine, or both.

Section 106, BNS (current law): The general offence now carries up to five years' imprisonment plus a fine. But where the death results from a rash or negligent act by a registered medical practitioner while performing a medical procedure, the punishment is capped at two years' imprisonment plus a fine.

Indian courts have long held that in criminal proceedings, guilt must be established beyond reasonable doubt, and where negligence is the essence of the charge, it must be gross or culpable — not a mere error of judgment.

IPC vs BNS — What's Worth Noting

Neither "grossly" nor "culpable" appears before "negligent act" in either the IPC or the BNS.
That silence suggests Parliament, drafting a modern code for independent India, chose not to add those qualifying words.
Parliament did deliberately carve out a specific clause for registered medical practitioners "performing a medical procedure" — placing doctors under the same provision as negligent drivers.
There is no built-in distinction between a negligent driver and a negligent doctor.
No special immunity is granted. No "license to kill," James Bond style.

Gross, by dictionary definition, means very serious. Culpable means responsible for something bad that has happened.

Under English law — which Indian jurisprudence draws heavily from — doctors are in fact convicted, though rarely in India. In the landmark case R v Adomako (1995), the House of Lords held that involuntary manslaughter arising from a breach of duty turns on gross negligence, not recklessness, and that ordinary tort principles of negligence apply. Juries, the House of Lords said, must use common sense and moral judgment to decide whether a failure is "criminal."

The Victim's Dilemma

Is the act that caused a patient's death not "serious"? Is the doctor not "responsible" for what happened?
If Parliament chose not to require "gross" or "culpable" negligence for doctors, why does the debate keep resurfacing?
Even the judiciary hasn't clearly defined what counts as "gross" or of a "high degree" — leaving it to the subjective view of the presiding judge.
It isn't rare to see a trial court convict a doctor, a High Court affirm the conviction, and the Supreme Court then acquit — meaning two levels of the judiciary saw gross negligence where the apex court saw none.
A doctor should be held liable if they knew, or ought to have known, of a serious risk of death and proceeded regardless — a conscious disregard for consequences, whether or not they hoped for a different outcome. Some such violations are frankly reckless, even thrill-driven.
It's telling that liability turns not on the scale of the damage (and death is about as large as damage gets) but on the degree of negligence involved.
In Prabhat Kumar Singh v. State of Bihar (2021), the Supreme Court held that a case of medical negligence need not involve mens rea, or criminal intent, at all.

I made much the same argument in my 2016 book, Medical Negligence (Truth Revealed) (p. 23):

The relatives of the deceased — often having lost a mother, a wife, or the family's sole breadwinner — are laymen. Two questions form in their minds: first, that the doctor may not have intended death, but did intend to make money; and second, that a highly skilled professional either knew, or ought to have known, that the act or omission would cause death. This is especially true in cases such as: operating while intoxicated; an MBBS doctor performing heart surgery; undertaking major surgery without the necessary facilities; knowingly engaging an unqualified person for anaesthesia; wrongly removing an organ or limb; letting unqualified staff administer sensitive injections or blood transfusions; or admitting critical patients into a ward labelled "ICU" that has neither the equipment nor the trained staff to monitor them. The list, sadly, goes on.

In Conclusion

I am not arguing for the wholesale conviction of doctors. But the "black sheep" within a noble profession — those whose negligence causes death or lasting suffering — deserve to be held accountable.

A doctor should only be held liable when death is not the natural progression of disease or age, but the result of an undisclosed, avoidable risk. The trouble is that "gross" negligence remains a vague standard. What the law seems to require is conduct serious enough to provoke outrage — conduct that makes an observer conclude the accused deserves punishment. Where a patient is deliberately exposed to risk, that crosses from negligence into recklessness.

There is a growing public demand for accountability when medical mistakes turn tragic — compounded by declining trust in medical councils and by compensation that, notably, never comes out of the doctor's own pocket. And doctors are not alone in this: truck and train drivers, electricians, even teachers responsible for a child's death by drowning on a school trip have faced similar scrutiny.

In India, causing death by negligent driving has traditionally been prosecuted under the old Section 304A of the IPC, and now Section 106 of the BNS, without courts generally demanding proof of "gross" negligence as a separate threshold. That asymmetry remains a central point of comparison between how the law treats medical negligence and driving negligence.

We need to preserve public confidence in the medical profession — and hold it to a proper standard.

Dr. Mahendra K. Joshi, M.S. (General Surgery), LL.M. (Criminology), M.A.S.L.M.E. (USA) Ex. Member, State Consumer Commission — Gujarat 📧 [email protected] | 📞 +91 98790 94226