Supreme Court Rules Doctors Not Exempt from Liability for Medical Negligence

Kathmandu. The Supreme Court has ruled that doctors cannot be granted immunity simply because they are doctors when they commit negligence while treating patients. A joint bench of Supreme Court Justices Nahakul Subedi and Sunil Kumar Pokharel issued this ruling in the case filed by Parbati Gajurel Mahatara of Salyan.

The full text of the verdict, delivered on Jestha 25, 2082 BS, was recently made public. The court determined that there was an error in treatment and issued a mandamus order directing the concerned doctors involved in the negligence to face action, directing the Consumer Court and the Nepal Medical Council to provide NPR 1 million in interim compensation to the affected woman and to make further decisions regarding the remaining compensation.

Parbati Gajurel Mahatara of Salyan gave birth to a daughter via surgery at Paropakar Maternity Hospital in Thapathali on Kartik 9, 2065 BS. Following the surgery, she continuously suffered from abdominal pain and burning sensations. When she became pregnant again in 2066 BS, she suffered excessive bleeding and miscarried.

Nearly ten years later, in Ashad 2075 BS, a check-up by Senior Gynecologist Dr. Jageshwar Gautam at Om Hospital revealed that during the 2065 BS surgery, 'half of the uterus was unnecessarily stitched,' which severely damaged her reproductive capacity. Following this, she filed complaints with the Nepal Medical Council and the District Administration Office, Kathmandu, but as these bodies took no concrete action on the complaints for 5 years, she approached the Supreme Court.

The Supreme Court interpreted that doctors shall not face criminal liability except in cases involving intent to kill or maim patients or incidents of negligence. The court further elaborated on the liability of doctors. The verdict stated, 'It is expected that doctors use their skills and capabilities with the utmost caution while treating patients. It is also the duty of the doctor to provide proper care to the patient. If it is not seen that the doctor or health worker has fulfilled this basic duty, or if they deviate from fulfilling that duty, and if the patient suffers any harm as a result, it must be considered medical malpractice.'

The court clarified that if a negative outcome occurs despite the doctor exercising due diligence, it should not be considered negligence. However, the court stated in the verdict that if treatment was provided negligently or carelessly without exercising reasonable caution, it would not be just or lawful to grant immunity simply because they are doctors.

The full text of the verdict mentioned, 'If the patient suffers harm even when the doctor has treated using the maximum of their qualifications and capacity with appropriate caution, such harm cannot be considered medical negligence or carelessness. In many treatment procedures, including surgeries of a serious nature, it cannot be denied that the patient may not benefit or may even die despite the procedure being carried out with the highest capability and sufficient caution. If in such a situation, the patient does not benefit or dies, and it is considered medical negligence, then no doctor can perform their professional duties with high morale. Judges must always be vigilant about this.'

The decision made by Lord Denning, a judge of the House of Lords in the UK, in the case of 'Hux vs. Cole' was taken as a precedent on the question of whether it constitutes medical negligence. In that case, it was interpreted that 'a doctor cannot be held responsible merely due to minor errors in treatment or the selection of one procedure over another, unless the doctor's conduct is found to be below a reasonable standard.'

The court commented on the failure of the concerned bodies to address the victim's demands for a long time, basing its reasoning on the Treaty Act, 2047 BS. The court strongly commented on the role of the Nepal Medical Council and the District Administration Office, Kathmandu. The court deemed the act of shelving the victim's complaint for 5 years as 'depriving the right to access justice.'

The verdict stated, 'In the context of the legal provision that international treaties to which Nepal is a party shall apply as Nepali law according to Section 9 of the Treaty Act, 2047, it is mandatory for the relevant bodies to seriously consider and take action or resolution on the complaint filed by the petitioner alleging serious harm to her health due to medical negligence, in compliance with the obligations of the state arising under international law.'

The verdict mentioned that the medical practice carried out by doctors with necessary caution must receive adequate legal protection. The court concluded that it is necessary to be sensitive to the fact that expected results may not be achieved when doctors or health workers are kept under the fear and pressure of legal action in the high-risk task of treating patients. The verdict stated, 'The main thing to look at is whether the doctor treated with reasonable and adequate caution or not.'

The verdict also stated that the situation where fundamental rights guaranteed to individuals are violated, but state bodies or officials do not take responsibility for it, cannot be considered consistent with the accepted principles of constitutional governance and the rule of law.

The verdict stated, 'Looking at this in light of the facts and circumstances presented in the preceding paragraphs, it is also determined that the District Administration Office, Kathmandu, among the opposing bodies, must pay interim compensation of ten lakh rupees to the petitioner Parbati Gajurel Mahatara, as it is revealed from the facts and circumstances attached to the file that the actions taken by the opposing bodies have caused further physical and mental distress to this petitioner.'