Medical Negligence in Nepal

One of Nepal’s most serious problems is medical negligence. Despite this, it is not immune to negligence, which frequently results in the patient’s death or complete/partial disability, or any other misery that has a negative impact on the patient’s health. Every day, hospitals in Nepal are vandalized, and doctors are beaten as a result of medical negligence. The victims chose to hold strikes rather than file a negligence claim. This article will explain how to seek legal redress in such a case.

If you would like to learn about medial negligence in Nepal then you might want to read the article below.

Medical negligence is on the rise in Nepal. The court has issued orders and imposed compensation in a number of cases involving doctors and hospitals. The hospital was fined by the court in one of the most well-known cases.

What kind of lawsuit can b filed in Nepal in the event of medical negligence?

In the event of medical negligence, Nepal offers two types of remedies. First, under civil procedure code 2074, compensation may be sought by invoking tort law and other consumer protection rights. A FIR may be filed if one of them invokes criminal procedure code 2074. A prison sentence may also be imposed.

• Tort law in accordance with the 2017 National Civil Code
• A criminal case in accordance with the 2017 National Criminal Code
• Tort law in accordance with the 2017 National Civil Code

In Nepal, a national civil code and tort law were implemented in 2017. Article 50 of the Consumer Protection Act of 2018 may be invoked if a doctor is found to have committed medical negligence while performing his or her duties and compensation can be sought.

A criminal case under the 2017 National Criminal Code

In the case of serious negligence, for example, a person who does not have a medical practitioner license or if he/she projects oneself to be a doctor and treats the patient, a national criminal code 2017 can be invoked, or where a medical practitioner during the medical procedures does something contrary to the procedure, such as treating and operating organs that do not require medical attention, or leaving a scissor, a cloth, or any other object in the organ that is detrimental to the patient’s health during the medical procedure. This type of negligence is classified as serious medical negligence. In such cases, criminal law is invoked.

Negligence implies being unaware of potential hazards.

The dictionary definition of “reckless” is “careless,” “regardless,” or “heedless of the potentially harmful consequences of one’s actions.”

Subjective Negligence Caldwell Recklessness Test – an objective test that indicates whether the potential danger was known or not.

Medical Negligence in Nepal

Medical Negligence in Nepal
The Nepal Civil Code 2017 defines what constitutes negligence. Negligence occurs when an individual performs an act that is not permitted by law or fails to perform an act that is required by law.

Mistakes or negligence in the medical field can result in minor or serious injuries, and these errors can even result in death. Because no one is perfect in this world, even experts and subject matter experts can make mistakes. Error is human, but repeating the same mistake due to carelessness is negligent.

Definition of medical negligence

In general, medical negligence occurs when a doctor or hospital breaches the duty to care as its duty and causes damage as a result of the breach of duty. There must be four elements in this.
1. the obligation to take care
2.Violation of Duty
3. causality
4. Damage .

Negligence in receiving care from a nurse, physician, surgeon, pharmacist, or any other medical practitioner is included. Medical malpractice occurs when victims are injured as a result of treatment provided by a doctor or another medical practitioner or health care professional.

Types of Medical Negligence

Medical negligence can appear in a variety of ways. It happens when a medical professional deviates from the expected standard of care.

As a result, any discrepancy from accepted medication and care standards is considered medical negligence, and if it causes injury to a patient, the doctor who operated on him, other hospital staff, and/or the hospital may be held liable.

If another doctor would have reasonably diagnosed the same condition in a timely manner, a delayed diagnosis is considered medical negligence. If an illness or injury is allowed to worsen over time rather than being treated, a delay in diagnosis can cause undue harm to the patient. Any delay in identifying and treating an injury, obviously, reduces the patient’s chances of recovery.

Error in surgery

Surgical operations require a high level of skill and should be performed with great care and caution because even minor errors can have serious consequences for the patient.

Surgical error includes wrong-site surgery, lacerations of any internal organ, severe blood loss, and the presence of a foreign object in the patient’s body.

Unnecessary surgery is usually associated with a misdiagnosis of patient symptoms or a medical decision made without proper consideration of other options or risks. Alternatively, surgery is sometimes preferred over conventional treatments due to its convenience and ease of use in comparison to other options.

Errors in anesthesia administration

Anesthesia is a dangerous part of any major medical procedure and must be administered and monitored by a specialist (anesthesiologist). Prior to any medical procedure requiring anesthesia, the anesthesiologist must review the patient’s condition, history, medications, and other factors to determine the best medicine to use. Anesthesia malpractice can occur during the pre-operative medical review as well as during the procedure itself.

Childbirth and labor malpractice

Childbirth is a difficult event for a woman, and it is made even more difficult when doctors and nurses do not handle it correctly. There have been numerous cases of medical negligence during childbirth, including mishandling of a difficult birth, complications with induced labor, misdiagnosis of a newborn medical condition, and so on.

Childbirth and labor malpractice

Childbirth is a difficult event for a woman, and it is made even more difficult when doctors and nurses do not handle it correctly. There have been numerous cases of medical negligence during childbirth, including mishandling of a difficult birth, complications with induced labor, misdiagnosis of a newborn medical condition, and so on.

A negligent incident must contain four elements.

• Duty to exercise reasonable caution.
• Breach of legal duty
• Causation
• Doctor’s duty to take reasonable care

Treatment of the patient with reasonable knowledge under reasonable duty to care., also prescription of the medication if the doctor has breached its legal duty then the victim is compensated under medical negligence based on the above incident.

In what circumstances can medical negligence be proven?

What is “negligence” exactly? It must be stated under what circumstances negligence is acceptable.
Volume 34, paragraph 1 (paragraph 3) of Halsbury’s Laws of England (4th Edition): “Negligence is a tort that refers to failing to use reasonable care under the circumstances (Attended circumstance)

Inability to remain calm in a critical situation and failure to exercise caution based on necessity. Under Common Law, negligence is defined as a person’s failure to exercise ordinary care in protecting himself and others from injury, harm, and damages. Eve J. described this state of mind succinctly in Hudson vs. Viney (1921), 1 Ch. 98 “apathy of the mind

Under what circumstances might a person be sentenced to prison for medical negligence under the criminal process code?

With evil intentions, and also if one knows the consequences of the conduct and acts it deliberately, criminal culpability should be established based on the degree or gravity of the crime.

In terms of criminal responsibility,

He claims that a lack of care that would result in civil culpability is insufficient; there are degrees of negligence under criminal law, and a very high degree of negligence must be proven before the felony is established.

If, in the name of treating the patient, an individual acts beyond their abilities to treat or makes unforgivable blunders, and thus commits carelessness, then such an individual is considered negligent.–

What criteria are used to determine medical negligence?

In the case of medical malpractice allegations, it is necessary to determine if carelessness was done or not, and the Bolam case has been used for this purpose for a long time. In that situation, in order to rule out the negligent act, doctors who follow the same procedures and have the same knowledge and skills are compared to see if the same skills and procedures were employed.
In this scenario, it is stated that the doctor must use his or her customary skill as a competent doctor in this sector. He must use this skill in conformity with the advice of a responsible group of medical experts in the field.” It is described in the Bolam case.

A professional should be able to command the body of information that is part of the professional equipment of the average person in that field. He should not fall behind other ordinary attentive and intelligent members of his profession in terms of knowledge of new advances, discoveries, and developments in his field…. The law does not demand that a professional man be an exemplar combining the qualities of a polymath and a prophet.

In the event of medical negligence, we shouldn’t evaluate what experts in the malpractice sector would do in numerous scenarios in order to decide what they would do. It is extensively discussed in this case in Hucks vs. Cole . According to Lord Denning, a medical practitioner should be held accountable only if his actions were in violation of the law.

What Principle governs Medical Negligence?

The res ipsa loquitur principle (Latin for “the thing speaks for itself”)

An analysis must be performed to determine whether the common law system principle is applied in medical negligence. The nature of the incident will speak for itself or not in this case is a general principle that is applied.

Sometimes a doctor’s act will indicate grave negligence on the part of the doctor, which is referred to as negligence in the common law system.

The principle of res ipsa loquitur (Latin for “the thing speaks for itself“) A principle of the common law system is that the nature of the incident will speak for itself.
For example, while an operation had to be performed on one of the organs, the operation performed on the other part of the organ is considered negligent.

Negligence is also considered when equipment is left in the patient’s body during medical procedures.In such a case, Section 231 of the Civil Criminal Code provides for life imprisonment.

It must be determined whether a doctor’s carelessness is serious. Engaging in prohibited behavior and failing to engage in required behavior are also examples of negligence. Negligence is a corresponding, not absolute, term.

What constitutes negligence in one instance may not be in another. Negligence in the ordinary sense has no legal consequences where there is no duty to exercise care. The vast majority of probabilities could be used to establish negligence.

The doctor may be aware that the patient died as a result of his or her treatment, whether or not it was anticipated. Such an incident could not have been unavoidable if the patient was frail, in poor health, and the chances of saving his life were slim.

(Foresee ability Doctrine) A reasonable person can make assumptions about the patient’s condition in any situation under the common law system.

The Reasonable Man Test is visible and serves an important purpose. Reasonable man examination In this case, whether or not a reasonable person in the same circumstances would have recognised the danger and stopped or changed his course to avoid it.

If a rational person would not,If a reasonable person would not do so, there is no liability and the harm must fall where it may. A general person is someone who can keep his or her cool in any situation. A reasonable man is one who is capable of self-control.

In Nepal, many medical negligence cases have resulted in compensation

Reasonable man test In this case, whether or not a reasonable man in the same circumstances would have recognised the risk of harm and stopped or changed his course to avoid it. If a reasonable person would not, then there is no liability and the harm must fall where it may.

A general person is someone who can remain calm in any situation. A reasonable man is someone who is capable of self-control.

A Court Decision in a Medical Negligence Case

Case Study of Rihan Neupane, a child, and the Grandi Hospital case

The Patan High Court issued an order against the Grandi Hospital and imposed a 35 lakh compensation for medical negligence in the treatment.

The court ruled that the hospital was negligent in its treatment of Rihan, and a compensation order was issued. Rajaya Khatun died during her pregnancy.

Similarly, Nesar Ahemed Miya BD Pramod Poudel NKP 2075 Decision No. 10061 page 7892

Shrijana KC. suffered from eye pain and went to Dr. DB Shah, who prescribed her the wrong medicine, causing the victim child to lose her eyesight and her body to be distorted, and the court issued an order imposing a compensation of NPR 18,76,750.

Similarly,

In the case of Bir Hospital’s Dr. Buland Thapa and victim Sushma Thapa,

See NKP 2074 Decision No. 1814, page 871, for more information. In this case, the doctor was operating on the leg, which was about to be severed, and the leg had to be amputated due to medical negligence, for which NPR 9, 20,000 in compensation was imposed.

In the same way, Nesar Ahemed Miya BD Pramod Poudel NKP 2075 Decision No. 10061 page 7892. The case of Rakiya Khatun, who arrived at Prithivi Chandra Hospital at 8:30 p.m. for a delivery during her pregnancy. She was hospitalized, gave birth at 11:53 p.m., and died on the 10th day. The court imposed NPR 45,000 in that case.

Similarly, Shrijana KC., the victim’s child, lost her sight as a result of Dr. DB Shah’s medical malpractice ( Left).

The decision in the aforementioned case, NKP 2066 Decision No. 8262, can be read here. Shrijana KC., the child in this case, had visited the doctor due to eye pain.

See NKP 2074 Decision No. 1814, page 871, for more information. In this case, the doctor was operating on the leg, which was about to be severed, and the leg had to be amputated due to medical negligence, for which NPR 9, 20,000 in compensation was imposed.

In this case, NKP 2074 Decision No. 1814 page 871 can be found here. In this case, the doctor was operating on the leg and it had to be amputated due to medical negligence, and a compensation of NPR 9, 20,000 was imposed.

FAQ on Medical Negligence

How do I file a medical negligence claim in Nepal?

Medical negligence claims in Nepal can be pursued in a variety of ways. If a doctor commits gross negligence while treating a patient, or if someone is not a doctor but falsely claims to be one and provides treatment, a FIR can be filed at a nearby station.
The police launch an investigation, and the case is designated as a state criminal case. If a patient dies as a result of a doctor’s negligence, it is a civil case, and a case may be filed in district court under tort law.

In Nepal, how do you prove medical negligence?

A critical question is how medical negligence is proven. Doctors never admit to being negligent while treating a patient. In Nepal, if an incident occurs, a complaint is filed with the medical council, and an investigation is launched.
If a serious medical negligence FIR is filed, a police investigation is launched, and the police investigate to determine whether or not negligence occurred.

How much compensation can I get in Nepal for medical negligence?

The method by which compensation is determined is not checked; rather, the method by which the law determines compensation is not mentioned.

However, under Section 51 of the Consumers Act of 2075, compensation is calculated in the following ways. the patients’ treatment costs, and if the primary person in the home is injured, the expenses for the family’s care are calculated. Expenses for which you may have receipts, such as travel expenses for medical appointments, medical equipment, and items purchased to assist you in daily living.

• Earnings lost due to injuries or illness that prevented you from working
• Costs of any surgery or medical procedures required as a result of negligence
• Any changes to your home
• The current and future costs of receiving care
• Future earnings loss if your condition prevents you from returning to work or returning to the same career.

You may also be compensated for your pain and suffering as a result of your injury or illness. The amount of compensation you receive will vary depending on the nature of your injury or illness.

Will I have to appear in court in Nepal?

In Nepal, if a victim dies as a result of the doctor’s negligence, there are strikes, hospitals are overcrowded, and property is vandalized. If a person dies as a result of the doctor’s gross negligence, a FIR is immediately filed with the police station.

If a damage is caused by the doctor’s negligence, a lawsuit must be filed with the relevant court within 6 months of the negligent act under tort law.

Should you have any questions regarding medical negligence, please do not hesitate to contact us at +9745374671 or by email info@corporatelawyernepal.com