Offences relating to Medical Negligence and Remedy in Nepal

Offenses Relating to Medical Negligence and Remedy in Nepal

• The right to health is enshrined as a fundamental right in our Constitution of Nepal, 2072. In Nepal, there are two legal ways to treat medical malpractice where one is a misdemeanor under the tort law, National Civil Code, 2074, and the other is a medical offense under the National Penal Code, 2074. In addition, Section 51 of the Consumer Protection Act, 2075 regarding compensation for damages is also invoked to protect the rights of the consumers.
• According to the National Penal Code, 2074, Section 230, offenses relating to medical negligence is a crimes related to treating someone without obtaining a license from a recognized authority or giving any kind of medicine or treatment services to anyone without having authority. But due to the long experience, a person is not prohibited by law to give medicine of ordinary nature to small wounds of ordinary nature, and treatment to small wounds. For example: - Wounds /Yellow sores. Etc.
• Punishment:- * There is a provision of imprisonment for up to 3 years and a fine of up to 30,000 rupees for a person who cheats or administers any kind of medicine without obtaining approval. In addition, there is a provision of imprisonment for life if someone dies due to such an act and imprisonment for up to 15 years in case of grievous hurt.
• Note: - According to the National Penal Code, 2074, Section 231, no person should be treated with indecent treatment. No one should treat a person in such a way as to cause him or her to die, one type of treatment should not be replaced by another type of treatment in the name of treatment.  If someone dies due to such inhumane treatment, due to an operation or drug prescription, the doctor will be imprisoned for life.  Imprisonment for up to 10 (ten) years and a fine of 100,000 rupees in case of grievous hurts due to inhumane treatment
• There will be half the punishment if one of the parts of two same types of human body parts with the human body with the same function is defective.
•  It is prohibited to carry out treatment, with the intention of causing the death of or grievous injuries in, another person, or conduct one type of medical treatment of him or her instead of another type of treatment as required, or administer or prescribe for the administration of any drug to him or her knowingly or having a reason to believe that the administration or prescription of such drug may cause the death of, or grievous injury in, him or her or conduct surgery on one organ of the human body of him or her instead of another organ as required or make such organ dysfunctional or separate such organ from the human body, or cause the commission of any of such acts.
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•  If anyone conducts the aforementioned act, he/she shall be liable to the following sentence:
• 1.)The same sentence is imposable for murder, in the case of causing the death of any person.
• 2.)The same sentence is imposable for grievous injuries, in the case of causing grievous injuries in any person.
• According to section 232, Medical treatment with malicious intention and recklessness:- No one is authorized under law to conduct medical treatment shall, in conducting medical treatment of anyone, conduct such treatment, administer any drug or prescribe for the administration of the drug to him or her in a reckless manner, without taking adequate care or precaution.
• Anyone found committing such an act is liable to a sentence of imprisonment for a term not exceeding five years and a fine not exceeding 50 (fifty) thousand if the death or grievous injury has been caused by a reckless act and to a sentence of imprisonment for a term not exceeding three years and a fine not exceeding 30 (thirty) thousand if the death or grievous injury has been caused from a negligent act.
• In the same way, if any drug is distributed without taking any special precautions, it will be a criminal act and the person who does or force to conduct this will be imprisoned for up to 1 (one) year and will be fined up to 10 (ten) thousand rupees.
• If a person, who sells medicine knowingly, distributes or causes to be sold one type of medicine as another, there is a provision of imprisonment for up to 2 (two) years or a fine of up to 20 (twenty) thousand rupees or both.
• In addition, a person who is licensed to conduct pathology tests of human blood, urine, etc., shall not give a false report or give facts different from the test facts during that test, and if he does so or causes it to be done, the offender shall be imprisoned for up to 3 (three) years and 30 (thirty) thousand rupees. If someone is harmed, dismembered, or even killed due to wrongful intention or wrong report or treatment given by wrong medicine, the law stipulates that compensation should be paid to the offender or to his next of kin in case of death.
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•  In Nepal, medical negligence can be pursued in two ways.
• 1. According to Criminal case law:- Hence, If a doctor commits gross negligence while treating a patient, or if someone is not a licensed practitioner but falsely includes in service, an FIR can be filed at a nearby station. The case comes under State party Criminal case. and,
• 2. According to tort Law:- If a patient dies due to the negligence of the doctor, the case occurs may be filed in the district court within 6 months under the tort law.
• Limitation: Depending on the type and seriousness of the offense related to medical treatment, there is a provision of 6 months in some, 1 year from the date of knowing about the offense in some cases, and in some any time can a person file a case.

Hence, Mijar Law Associates is at your service for further information and to solve the problem regarding medical negligence.