Medical Negligence: Law, Statistics and

Challenges in Nepal
Ramesh Parajuli⊗

Abstract
Medical professionals are entitled to get protection as long as they
perform their duties with reasonable skill and competence and in the
interest of the patients. The purpose of law is to create a just medical
system where balance is achieved between patient safety and fearless
working environment for medical professionals. Every patient is entitled
to “Right against medical negligence” after a precedent established by
Supreme Court in Dr D.B. Shah Case where government was directed to
enact a separate Medical Negligence Act which is still awaiting for the
enactment. Focus on Informed Consent model of treatment is inevitable
to prevent further distortion of doctor-patient relationship. Government
has failed to justify that disuniform fees charged by private hospitals are
proportionate to the quality of service they provide. National Standard
Treatment Guidelines (STG) needs to be introduced to bring uniformity
and transparency in the method of treatment and prescription of drugs
throughout the country. Patients treat doctors as god however doctors are
presenting themselves as businessmen. Government should have clear
medical policy whether medicine is a service or a business.

1. Background
WHO points- Medical Negligence is among the top 10 killers in the world and
unintended medical errors have become a big threat to patient safety. 1 in 10
hospital admissions leads to an adverse event and 1 in 300 admissions to death1.
Medical Negligence is a “breach of duty of care imposed by law resulting in loss/
injury to patient.” Negligence occurs after doing an act which a reasonable man
would never do and even by not doing an act which a reasonable man would do.
It is basically matter of tort where aggrieved patient is entitled to civil remedy.
Conviction for criminal negligence is an exception limited for “gross negligence” or
“legally specified intentional wrongs”.

⊗
Advocate Parajuli is LL.M. in Criminal Law and Justice and currently ongoing PhD in Law from Amity University,
Noida, India under the guidance of Prof. Dr. Tahir Mahmood, Former Dean, Faculty of Law, University of Delhi
and Chairman, National Minorities Commission of India and under the co-guidance of Associate Prof. Dr. Kiran
Gupta, Faculty of Law, University of Delhi, India on the topic “Medical Negligence in Nepal: Critical Study of Law
and Practice in light of Indian Experiences”. <amesh06@yahoo.com>.)
1 Malathy Iyer, Medical errors in top 10 killers: WHO; The Times of India, April 20, 2011 (Source: http://articles.
timesofindia.indiatimes.com/2011-04-20/india/29450526_1_medical-errors-patient-safety-negligence).
Medical Negligence... 131

Medical negligence may occur at four levels: (a) doctor/paramedical staff/ hospital
authorities, (b) manufacturers of drugs, equipment, etc. and dispensers, (c)
patient himself or his attendants’ also known as contributory negligence, and (d)
Composite negligence, i.e., at more than one of the above three levels. Contributory
negligence is not a defence for physician yet is relevant in determining the amount
of compensation.

2. Law
Right against medical negligence is a part of right to dignified life guaranteed under
Article 12(1) of the Interim Constitution of Nepal, 2007. Any patient victimized
by negligence of doctors/hospitals/pharmaceutical products or drugs/medical
laboratories etc may file complaint before District Compensation Committee in
accordance to Consumer Protection Act, 1998. Section 10(e) of the Act prohibits
producing, selling or supplying goods or services which may cause harm to the health
of the consumers. Judiciary has interpreted the paid medical service provided to
the patients by health professionals and hospitals fall within the ambit of “service”
defined in section 2(e) of the Act. This has opened door to seek compensation for
aggrieved patient. In case any patient suffers a loss or damage of any kind as a result
of the sale of such medical service, such consumer, or any Consumer Association on
his behalf, may file a complaint to the concerned District Compensation Committee
in accordance to Section 22 of the Act as Tort for civil remedies within 35 days from
the date of such loss or damage and these cases are to be decided within 90 days
applying Summary Procedure Act 1972. Even though, there are several confusions
and aspects left unaddressed by the Act, judicial decisions are continuously given
way out and solving these confusions in harmony with rational global principles
and interpretations related with medical negligence, patient safety and consumer
protection. Some landmark principles established by judiciary include- Duty of
court to ensure no innocent physician is harassed, physician and patient both
should be treated equally in the eyes of justice, duty of doctor to practice medicine
within the parameters of law, no doctor/hospital can be negligent under assumption
simply without clear proof of negligence even if patient dies, as a rule doctors are
to be presumed not negligent in course of treatment, burden to prove negligence
of physician lies on patient party, doctors are not to be assaulted, since question
of medical negligence is a technical matter and thus authorities have to rely on
expert opinion while deciding medical negligence cases, Medical treatment system
in Nepal should be guided by Informed Consent Theory, and every patient has right
against medical negligence.

Negligence and malpractice by drug companies, equipment manufacturers and

drug suppliers are addressed by section 10(a) of the Act. It prohibits production,
sale, supply, export or import of sub-standard consumer goods. Any producer, seller,
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supplier, exporter or importer of such substandard medical goods are punished with
up to 3 years imprisonment or up to Rs 50,000/- or both. Likewise, section 10 (e)
prohibits to produce, sell or supply any of the consumer goods or services which
may cause harm to the health of consumers, violation of which is punishable with
up to 14 years imprisonment or up to Rs 500,000/- or both (if there is threat to life);
is punishable with up to 10 years imprisonment or up to Rs 500,000/- or both (if
strength of any organ of body is likely to be reduced or lost) and is punishable with
up to 5 years imprisonment or up to Rs 300,000/- or both (in other circumstances).
Section 6 of the Act as well as The UN Guidelines for Consumer Protection 1985,
guarantees six rights to patients as consumers including but not limited to right to
be protected from the sale and supply of consumer goods and services which may
harm life, body, health and property.

Neither Consumer Protection Act nor Chapter on Treatment in National Code, 1963
(Muluki Ain, 2020 BS) has defined the term “medical negligence”. Government is
required to determine “minimum standard of medical service available to patients in
course of treatment” under section 11 but government has not been able to clarify
whether high treatment cost imposed on patients by private hospitals/doctors is
proportionate to the quality of service they provide. Even though there is no any
statute to deal with it, judiciary has been successfully shouldering the over-burdain
of determining whether the level of treatment given to patient by alleged physician/
hospital is reasonable or not and whether there has been negligence on the part of
doctor or not. Supreme Court in Dr D.B. Shah Case2 recognized “Every patient has
Right against medical negligence” and directed government to enact a new law
to address this lacuna but no further progress as such has been noticed to have
been done by government in this line. It is a shame to know that mission initiated
by Minister to monitor infrastructure and service provided in private hospitals could
not end successfully after his direct order to stop further monitoring in big cities like
Kathmandu and Pokhara due to game of money. Lack of legal definition of medical
negligence and inadequacy of current law is constantly giving insecurity to medical
professionals, health institutions and little scope for justice to the kin of victim.

Consumer Protection Act has several weaknesses. The Act is not clear whether family
members of deceased are consumers and have locus standi to complaint, it does
not clearly mention ‘death due to negligence’. It fails to specify those negligent acts
punishable for criminal charge. The law is silent whether doctors can be arrested
easily or there needs special guidelines for arrest as laid down in neighboring India
in Jacob Mathew case3.

2 Dr. DB Shah v. Pro-Public; SC, NKP 2066 Falgun, DD: 2009/11/15.

3 Indian Supreme Court in Martin F. D’Souza case warned the police officials not to arrest or harass doctors
unless the fact is clearly within the parameters laid down by Jacob Mathew case, otherwise the policemen
themselves have to face legal action.
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Recently two security laws for health professionals have been enacted. Health
Professionals & Health Institutions Security Act, 2066 and Health Professionals &
Health Institutions Security Regulation, 2069. Major legal provisions include: (a)
Prohibition of acts such as manhandling, lock-out, degrading treatment to health
worker and destructing, setting fire or similar things in any health institution
violation of which shall be fined Rs 5 Thousand to 20 Thousand and in addition the
court shall also order reasonable compensation for such loss or damage by the
offender. (b) Duty of local administration and government to arrange for security
immediately if demanded by health worker or health institution. (c) Establishment
of Health Worker and Health Organization Security Coordination Committee. (d)
Pre-registration in committee required to claim security (Payment of Rs 500 as
application fee, should pay annual fee as well to the Committee, and private health
institutions are required to pay double fee). (e) Health institution can get approval
to use separate means of communication from Health Ministry (with consent from
Ministry of Communication). (f) Health professional or Health Institution can submit
application to receive compensation amount as decided from court or litigation cost
for payment within 3 months from date of court’s decision.

Enactment of security laws for health professionals is a good news in itself

however root cause of insecurity of health professionals is poor doctor-patient
communication. No other persons can give security to others. Physicians should
themselves provide full counseling to patient party about treatment expenses,
possible complications of treatment, method of treatment, necessity of referral,
reason for referral, referred to which doctor etc. prior starting treatment which will
prepare patient party mentally ready to face the consequences and risks inherent in
such treatment. The purpose of counseling is to enable patient party to make choice
and self-decision regarding whether to carry treatment or not, with whom to undergo
treatment etc. This campaign needs to be widely practiced. The aim of physician is to
serve the patients and it is a matter of pride to every physician. Physicians who aim
to earn money should never forget that money can be earned only if the professional
ethics and standards are complied4. It is doctor’s negligence when he fails in duty
to inform the patient party about the (i) exact situation of patient both in simple
or complex diseases, (ii) which medicine has been used to cure which disease?,
(iii) what are the possible side-effects of such drugs? (iv) chances of success
in treatment etc5. 80% physicians in Nepal lack communication skills6. General
secretary of Consumer Rights Protection Forum has pointed out that – majority of

4 Dr. Kiran Prashad Shrestha, President, Nepal Medical Association (Source: National Monthly Health Newspaper,
Nepal; Falgun 2067 B.S., p. 40).
5 Dr. Kiran Prashad Shrestha, President, Nepal Medical Association (Source: National Monthly Health Newspaper,
Nepal; Poush 2068 B.S., p. 10).
6 Research conducted by Prof. Dr Jagadish Aggarwal, IOM (Source: National Monthly Health Newspaper, Nepal;
Poush 2068 B.S., p. 10 )
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private hospitals have adopted strategy to trap patients and demand excess money
at the last stage of treatment without informing about the charges in the beginning.
Patients dissatisfied with treatment may file complaint for investigation before NMC
or DCC. NMC is the main institution responsible to regulate medical profession but
hardly any cases are found in NMC that have been decided in favour of consumers
of medical services.7 Dr. Jagadish Prashad Aggarwal, ED, IOM acknowledges lack
of communication (doctor-patient) and skill in physicians is the major cause of
vandalism in hospitals. Likewise, he claims 2 other reasons of vandalism include:
(i) lack of medical knowledge in doctors, (ii) disobedience of Rule of Law in society8.

3. Statistics
Study of decisions made by selected District Compensation Committees, Appeallate
Courts and Supreme Court from 1998 till 2011 and interview with 150 respondents
(50 doctors, 50 lawyers and 50 patients) shows following facts and figures regarding
medical negligence in Nepal:
• Majority of medical negligence are committed during surgical treatment
and diagnosis.
• 33% medical negligence instances are due to “Errors in Surgical Treatment”
in Nepal. Death in course of simple hernia surgery, surgery at wrong site,
lack of reasonable skill during surgery etc are few examples.
• 22.22 % medical negligence instances are due to “Errors in Diagnosis”. Giv-
ing wrong opinion about patient’s health condition, wrong identification of
blood group etc are some examples for which several factors such as use of
second-hand and substandard equipments contrary to Guidelines, 2061BS
or use of substandard reagents while lab tests or human errors of the diag-
nosing physician.
• 14.28% medical negligence instances occur due to “Professing/holding
out/performing beyond level of competence” either by doctor or hospital.
Some doctors/hospitals withhold patient themselves for regular income
despite awareness that referral to another expert physician or hospital is in
the best interest of the patient.
• Around 14% medical negligence instances are due to “Failure of Advice and
Communication” to patient regarding information related to disease, medi-
cation & its possible side-effects, timely follow up etc.
• 14.28% medical negligence instances are due to “Failure of physician/hos-
pital to attend/treat emergency patient in time”.
• The success rate of patient being awarded for negligence in District Com-
pensation Committee (DCC) is 77.77%.
7 National Monthly Health Newspaper, Nepal; Poush 2068 B.S., p. 11.
8 National Monthly Health Newspaper, Nepal; Poush 2068 B.S., p.9
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• Nearly 17% cases are held not negligent on ground of failure of patient party
to prove the onus.
• Hospitals/health institutions have been held vicariously liable for negli-
gence of their employee medical staffs (physicians/nurses/lab techni-
cians) in 71.42% cases.
• 63.33% of respondents pointed the necessity of “Special care and skill” to-
wards patients by medical professionals in course of treatment unlike rea-
sonable care & skill and ordinary care & skill.
• Lack of medical ethics (2%), Lack of expertise (3.33%), excessive workload
at a time (8.66%), commercialization of medical profession (24.66%) and
all of the above (61.33%) are opined to be factors responsible for increase
in number of medical negligence cases.
• 72.66% respondents opined that District Compensation committee lacks
relevant expertise in dealing with cases related to medical negligence.
• 78% respondents opined that in a smaller medical community of Nepal, in
case of alleged medical negligence by any physician, the possibility of giv-
ing honest expert opinion against their professional fraternity is less.
• Majority (59.33%) of respondents desired Bolitho Test (i.e. Expert opinion
is persuasive and it is the duty of judge to use his conscience and give fi-
nal verdict. A judge should not be a mere passive observer rather must be
active and make decision of its own) to be practiced by judges while de-
ciding medical negligence cases. On the contrary it is noticeable that 80%
of doctors (40 out of 50 doctors) opined that judges should rely on Bolam
Test (i.e. Determination of medical negligence should be based on expert
opinion because it is a technical matter which judge maynot understand).
• An overwhelming majority of respondents (98%) agreed with the Supreme
Court Judgment that if doctor has treated patient with dedication apply-
ing his experience, skill, education, efforts and knowledge and despite that
treatment fails, doctor cannot be held guilty for medical negligence.
• Majority (70.66%) of the respondents opined that inflicting criminal liability
in all cases of negligence by Medical Practitioners will distort the doctor-
patient relationship and will not benefit the patient.
• Majority (92.66%) of the respondents opined inflicting criminal liability in
all cases on medical practitioners for negligence would make them more
concerned about their own safety rather than giving the best treatment to
their patients thereby increasing defensive medicine.
• Majority of respondents (93.33%) respondents supported the Supreme
Court’s decision regarding future doctor-patient relationship should be
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guided by Informed Consent Theory and creates duty on doctor to inform

every details about disease to the patient and take patients’ consent prior
starting treatment.
• All the respondents (100%) felt the need for a special legislation providing
necessary guidelines/parameters in matters pertaining to medical negli-
gence.
4. Challenges
Nepalese medico-legal sector is facing 8 major challenges viz- (a) Inability of
government to effectively monitor and regulate private sector- Dialysis that cost
NRs 800 for one time in government hospital (Bir Hospital) costs NRs 3500/- in
private hospitals.9 Many surgeries that cost 10-15 Thousand Rupees in government
hospital cost up to 1 Lakhs in private hospitals. Government has failed to justify that
those hospitals are charging fees proportionate to the quality of service they provide
and are not looting public. Existing Guidelines10 2061 BS is inadequate in terms of
legal enforcement and contents. Health Institutions (Private and Public) Regulatory
Act is of urgent need. (b) Prevention of commissionalization, commercialization and
politicization in medical sector. (c) Guarantee of quality lab test reports to public. (d)
introducing practical skill based as well as theoretical knowledge based exam during
MBBS licensing exam. (e) Focus of NMC should be on production of quality physicians
by ensuring quality medical education rather than increasing quotas and converting
medical colleges into factories to produce substandard medical professionals. (f)
Delay in realizing compensation amount already awarded to patient thereby double
victimizing patient under the veil of legal technicalities. (g) Non enforcement of
directive issued by Supreme court in Dr. D.B. Shah Case11 to carry certain homework
and promulgate Medical Negligence Act. (h) Lack of uniformity in method of
treatment and drugs among doctors: Ministry of health (in collaboration with Nepal
Medical Council and Nepal Medical Association) needs to draft National Standard
Treatment Guidelines (STG) to bring uniformity and transparency in manner of
treatment and prescription of drugs throughout the country which would have to be
followed by government and private hospitals and private clinics of physician, but
will be non-binding on any of the hospitals. It will tell doctors which drugs to prescribe
and which not to for various diseases.  It will recommend that doctors follow a line of
treatment that doesn’t involve prescribing drugs when medication is unnecessary.
This intervention, even if it causes pharmaceutical firms and doctors more than
a few moments of anxiety, will hopefully restore some order into a market that’s
marked by irrational combinations of drugs and paranoid pill-popping sustained by
strategic marketing. More than 17000 medical shops are operating illegally in Nepal.
9 National Monthly Health Newspaper, Nepal; Mangsir 2068 B.S., p. 9.
10 Private and Non- governmental Health Institutions (Establishment, Operation Policy, Standard and
Infrastructure) Guidelines, 2061 B.S.
11 Dr. DB Shah v. Pro-Public; SC, NKP 2066 Falgun, DD: 2009/11/15 pp. 1819-1847.
Medical Negligence... 137

In many remote areas, health workers and nurses have opened and run clinics and
medical shops. 20% of Nepalese drugs are consumed in urban areas whereas, 80%
are consumed in rural areas. All doctors, nurses, pharmacists and community health
workers would have to adhere to STGs. Incorrect drug’s choice, overdose, under dose
and choice of more expensive drugs when less expensive drugs would be equally or
more effective is a major problem in public health facilities.

There are inherent fallibility in the medical professionals and the role of law is to act
as a watchdog, and not a bloodhound. The medical professional is expected to bring
a reasonable degree of skill and knowledge and must exercise a reasonable degree
of care. The medical professional is often called upon to adopt a procedure which
involves higher element of risk, but which he honestly believes as providing greater
chances of success for the patient rather than a procedure involving lesser risk but
higher chances of failure. It would not be conducive to the efficiency of the medical
profession if no Doctor could administer medicine without a halter round his neck.
It is our bounden duty and obligation of the civil society to ensure that the medical
professionals are not unnecessary harassed or humiliated so that they can perform
their professional duties without fear and apprehension. The medical professionals
are entitled to get protection as long as they perform their duties with reasonable
skill and competence and in the interest of the patients. However, the interest and
welfare of the patients have to be paramount for the medical professionals. The
purpose of law is to create a just medical system where balance is achieved between
patient safety and fearless working environment for medical professionals.

There is no doctor/nurse/pharmacist in this world who has never become patient at

least once in his life. Our struggle should be to upgrade human civilization through
establishment of just medical system in Nepal. This will remain impossible without
co-operation from friends belonging to medico-legal fraternity. Let us be the cause
to handover a just medical system to our future generation before we leave this
planet.