The time frame is essential in cases of medical negligence. Any person must bring a lawsuit before the deadline in order to seek damages. Both of the laws are applicable to negligence that happens during treatments as well as during procedures.
Those without practicing licenses may be subject to criminal prosecution, and if they treat patients, they may also be required to pay damages.
In the Terai region of Nepal, these incidents happen frequently, and the perpetrators are not licensed medical professionals. Criminal Procedure Code 2074’s Article 230 prohibits anyone from providing medical care to patients without a practitioner license and the required educational credentials (1).
Therefore, they must comply with this clause and make restitution.
There are legal repercussions for anyone who renders medical services, treats, operates on people’s bodies, prescribes drugs, or performs any other types of medical treatment.
If a person has the required educational credentials and a current practicing license, they are qualified to do so. Anyone practicing outside of medicine who does so risks legal repercussions. Therefore, a complaint in such cases must be made to the police station within a year of learning about the incident. They have six months from the incident date in other circumstances to file a lawsuit.
Under Civil Procedure Code 2074, any medical professional who injures a patient out of negligence is liable in a tort case. what negligence entails. The tort provision specifies the circumstances in which negligence is established.
According to Halsbury’s Laws of England, Fourth Edition, Volume 34, Paragraph 1 (paragraph 3), “Negligence is a specific tort and in any given circumstance is the failure to exercise that care which the circumstances demand (Attended circumstance) in an adverse situation an individual is not able to remain calm, precautions not taken considering the situation, these situations are incorporated under the definition of negligence.
Common law negligence is the failure to exercise ordinary care while operating a motor vehicle to prevent harm to oneself or others. as ruled In Hudson v. Viney (1921) 1 Ch. 98, Eve J.,
Succinctly stated, this mental attitude is one of “mental indifference to obvious risks. Negligence is the lack of awareness of a potential threat. According to the dictionary, being reckless means being careless, disregarding, or not paying attention to any potential negative effects of one’s actions.
According to Article 672 of the Civil Procedure Code 2074, negligence is defined as follows:.
- Regardless of the fault, misconduct, or negligence of another person, anyone is liable for any loss or damage inflicted on life, life, property, or any other right or interest protected by law as a result of any act (commitment) or omission (omission) of another person.
- Any loss or damage resulting from such an act or omission shall be deemed to be a tort if there is no prior contractual relationship between the parties with respect to the act or omission.
Medical negligence case limitation rules
According to Section 684 of the Civil Code of 2074, a doctor’s negligence may not be immediately apparent six months after the date of any hospital or doctor’s negligence. The negligence of the doctor might not be discovered for some time. The Discovery Rule is in effect here.
The Discovery Rule to which reference has been made by the learned counsel for the respondent was evolved by the Courts in United States because it was found that the claim lodged by the complainants in cases involving acts of medical negligence were getting defeated by strict adherence to the statutes of limitation.
In Pennsylvania, the Discovery Rule was adopted in Ayers v. Morgan 397 Pa.282, 154A.2d 788. In that case a surgeon had left a sponge in the patient’s body when he performed an operation. It was held that the statute of limitation did not begin to run until years later when the presence of the sponge in the patient’s body was discovered. In West Virginia, the Discovery Rule was applied in Morgan v. Grace Hospital Inc. 149 W.Va.783, 144 S.E.2d 156.
In that case a piece of sponge had been left in the wound during a surgical operation but its presence in the body did not come to light until 10 years later. The Court rejected the objection of limitation and observed:
“It simply places an undue strain upon common sense, reality, logic and simple justice to say that a cause of action had `accrued’ to the plaintiff until the X-ray examination disclosed a foreign object within her abdomen and until she had reasonable basis for believing or reasonable means of ascertaining that the foreign object was within her abdomen as a consequence of the negligent performance of the hysterectomy.
Again, the Court observed:”We believe that the `discovery rule’ as stated and applied in cases cited above represents a distinct and marked trend in recent decisions of appellate courts throughout the nation.”The facts in Quinton v. United States, 304 F.2d 234 were that the wife of the plaintiff was given blood transfusion in a Government hospital in 1956. In June, 1959, the plaintiff and his wife during the latter’s pregnancy discovered that the wrong type of blood was given to her in 1956 and as a result she gave birth to a stillborn child.
The Government sought dismissal of the action for damages on the ground of limitation. The Court of Appeals opined that when a claim accrues under the Federal Tort Claims Act, it is” governed by Federal law and not by local State law.
The Court then held that the period of limitation does not begin to run until the claimant discovers, or in the exercise of reasonable diligence should have discovered the act constituting the alleged negligence.
The Bolam V. Friern Hospital Management Committee (1957) 1 WLR 582 case established a principle that Indian courts have long applied when determining whether medical negligence occurred in the current case.
An illustration of the Nepali Supreme Court
The Supreme Court of Nepal has applied the Discovery Rule and established the limitation period.
Charity Gynecology and Obstetrics Hospital Thapathali vs. Surya Adhikari N.K.P 2076 Page 1163 of Decision Number -10277
Before the baby was born, a vacuum extraction attempt was made; the doctor acted carelessly, which resulted in the child’s left arm and left knee turning outward.
In this case, a complaint was filed on 2064.4.2, following the daughter’s birth on 2063.12.2. The child’s left side of the body did not move, the knee did not move, the head turned back, and the child’s face, inside, forehead, and nose were hurt.
Before making a decision on the case, it is necessary to determine whether the appeal is within the legal time limit because the question of limitation in this case is one of law.
The statute of limitations is said to be maintained from the date that the information is received and does not appear to be intended to begin or count from the date that a patient is discharged from the hospital.
Doctrine of Tolling
A lawsuit may potentially be filed even after the statute of limitations has passed thanks to the legal doctrine known as tolling, which permits the pausing or delaying of the passage of time specified by a statute of limitations. Despite the fact that the reasons for extending the statute of limitations vary by jurisdiction.
- Plaintiff was a minor when a cause of action arose.
- A finding of the plaintiff’s mental incapacity has been made.
- Following a conviction for a felony, the plaintiff is now behind bars.
- Because the defendant declared bankruptcy, a stay of other lawsuits has been put in place.
- The defendant does not reside in the jurisdiction (state or country).
- The parties were sincerely discussing a resolution to their dispute without going to court at the time the statute of limitations expired.
- A tolling statute is one that explicitly permits the statute of limitations to be extended under certain circumstances.
- It could also take the form of equitable tolling, in which the court extends the deadline for filing a document using common law.
Nepal International Clinic Pvt Ltd. vs. Jyoti Baniya et al., N.K .P 2077 Decision Number -10621, page 3796.
Gorkha Services High Himalayan Pvt. Ltd. contacted the business after seeing an advertisement from a foreign employment agency claiming to send a caregiver to Israel, and I was told that I needed to go through a health examination at the Nepal International Clinic before I could travel to Israel.
I received a health certificate from the clinic attesting to my good health, and I was sent to Israel to find work as a result. Asthma prevented me from working, so after a health checkup by the company I was working for in Israel, they sent me back home.
The incorrect health certificate that the opponents provided led to the request for payment of damages for mental, physical, and monetary harm brought on by their unfair actions and negligence in providing services, as well as the fact that the health condition was not good after arriving in Israel.
In this instance, the limitation period is determined from the date that an event occurred, whereas in another instance, the limitation period must be determined from the date that the loss or damage’s root cause is identified or discovered.
The continuation of the limit calculation may need to be delayed for a while in some cases because there may not be an immediate opportunity to file a complaint about the incident. This situation is dealt with under the tolling doctrine.
In contrast to crimes, this theory is more relevant to misdemeanors. The limit can be maintained on the same basis if the results of the health test indicate an immediate effect on the affected consumer, or based on the victim’s condition if the results of the test are observed over time and continue to have an impact.
According to Section 684 of the Civil Code 2074, even though it is required by law that any doctor or hospital file a complaint within six months of the negligence, it has been determined that the statute of limitations should instead be deemed to have begun on the latest date when it was certain that such an effect occurred during the course of the treatment.
In this situation, the court should liberally interpret the law to uphold the rights of the wronged consumers and hold the responsible party or entity accountable without giving it a literal interpretation. The court must therefore ensure that the person experiencing pain won’t be harmed further and will be able to accept responsibility.
“The date the damage is discovered should be regarded as the date the cause of action arose. As in other disputes involving the use of medications, the interpretation that the limit should be calculated starting on the first day of use is absurd.
In the case of compensation in Dr. Dr. Dineshvikram Shah vs. Bhojraj Air (N.K.P.2066, No.11, No.8262), it was stated that when interpreting the Act, it should be done so with a purpose rather than in a way that frustrates. Regarding this, in India
V.N. Shrikhande vs Anita Sena Fernandes [(2011) 1 SCC 53] – Supreme Court of India in cases of medical negligence, no straitjacket formula can be applied for determining as to when the cause of action has accrued to the consumer.
Each case is to be decided on its own facts. If the effect of negligence on the doctor’s part or any person associated with him is patent, the cause of action will be deemed to have arisen on the date when the act of negligence was done.
It is stated – If, on the other hand, the effect of negligence is latent, then the cause of action will arise on the date when the patient or his representative- complainant discovers the harm/injury caused due to such act or the date when the patient or his representative-complainant could have, by exercise of reasonable diligence discovered the act constituting negligence.
It is not possible to file a complaint within the strict time frame required by a section of the law because medical negligence is a technical subject, it is not necessary to see the consequences as soon as the service is provided, and the effects of treatment and medication can be seen or persist even after a period of time.
Should you have any questions please do not hesitate to contact us at +977-9849517735 or by email@example.com
Alpana Bhandari is a founding partner and CEO of Prime Legal Consultants and Research Center. She graduated from American University Washington College of Law. She specializes in corporate/arbitration and family law.