SC stresses criminal liability for serious medical negligence

Published On: September 6, 2018 06:30 AM NPT By: Ananta Raj Luitel

KATHMANDU, Sept 6: Issuing a final judgment in a nine-year-old case concerning medical negligence on Wednesday, the Supreme Court has stressed the need to find criminal liability if serious medical negligence during the treatment of a patient is proved.

A division bench of Justices Dr Ananda Mohan Bhattarai and Sapana Pradhan Malla acknowledged that both civil and criminal liability should apply if negligence is proved during the medical treatment of a patient.

This apex court verdict comes at a time when doctors across the country have been agitating to press their demand that provisions for probing complaints against doctors be included under the new Mulki Civil Code and not the Criminal Code.

The bench was ruling on a compensation case filed by Ahmad Miya following the death of hospital patient Rajiya Khatun. The plaintiff demanded compensation from the medical team led by Dr Pramod Paudel of Prithvi Chandra Hospital at Ramgram, Nawalparasi.

The team has been facing a charge of administering wrong treatment due to which the patient died three days after discharge from the hospital and while undegoing further treatment in India.

"If medical negligence is accepted as a criminal liability, the remedy would be through restorative justice rather than promoting conflict between two parties."

The patient was suffering from septicemia.

The apex court verdict overturns the verdict of then Butwal Appellate Court Judges Deepak Raj Joshee and Govinda Prasad Upadhayaya who in turn had quashed the decision of the District Compensation Committee directing the defendants to provide compensation for administering wrong medical treatment.

The bench has directed the defendants to provide Rs 45,000 in compensation to the victim's party. Dr Paudel's team, which included nurses Shanta Paudel and Anita Jaiswal, had moved the appellate court, challenging the compensation committee's decision . The victim's party went to the Supreme Court some six years ago.

The apex court verdict states: "It seems a case of common negligence on the part of the hospital, and the patient died three days after discharge and in course of treatment in India. So the compensation amounting to Rs 45,000 has to be given to the victim party as per Section 24 of the Consumer Protection Act 1998 and Rule 45 of the Consumer Protection Rules, 1999. But as the reason why she died could not be identified the claim for more compensation could not be established."

The apex court handed down the verdict 10 months ago but issued the full text of the judgment only on Wednesday. "It is true that the court should test the complaints of any victim because it cannot forget its duty to protect the rights of the people as per the constitution and the laws," the judgment stated. The bench also stressed the need to end medical negligence and to that end carry out investigations to establish whether criminal negligence has occurred.

The judgement has suggested checking to see if a case can first be made under civil liability. But if the degree of negligence is serious it should be treated as criminal liability.

The bench observed that Article 25 of the Constitution ensures various rights relating to health such as right to medical treatment, basic health care, emergency treatment and right to information on treatment. Similarly, Article 38(2) ensures secure motherhood and reproductive rights.

"These rights must be respected always," the bench further stated.

It also said, "It would not be appropriate to unnecessarily criminalize issues or to demoralize medical workers. It would not be good to feel otherwise when they are tring to do a good job."

The bench also prescribed four major things to be done by the government in order to ensure the rights of people relating to health. These are properly managing the physical and human resources at government owned hospitals; determining the minimum standard of service to be provided by government and private hospitals and their documentation and other procedures; launching insurance programs for the security of both doctors and patients; and objectively determining liabilities through investigation of possible negligence .

"If medical negligence is accepted as a criminal liability, the remedy would be through restorative justice rather than promoting conflict between two parties," the bench further said. "Therefore, the government should pay serious attention to ensuring human and physical resources at medical organizations in order to minimize such problems."

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