Research On Medical Negligence And Criminal Law In Nepal
1. Introduction
Medical negligence is a sensitive and evolving area of law in Nepal. It falls under both civil and criminal liability, depending on the nature and consequences of the act or omission by a medical professional.
Under Nepalese law, doctors and medical practitioners are expected to follow a reasonable standard of care when treating patients. When this duty is breached, and it results in injury or death, the doctor or hospital may be held legally liable.
The primary legal sources are:
Muluki Criminal (Code) Act, 2074 (2017)
Muluki Civil (Code) Act, 2074 (2017)
Consumer Protection Act, 2018 (2075)
Health Service Act, 2053 (1997)
Nepal Medical Council Act, 2020 (1963)
2. Concept of Medical Negligence
Medical negligence means failure to exercise a reasonable degree of care and skill expected from a medical professional of ordinary competence in similar circumstances.
To prove negligence, these elements must exist:
Duty of Care — The doctor had a professional duty to the patient.
Breach of Duty — The doctor failed to perform that duty according to acceptable medical standards.
Causation — The breach directly caused harm or death.
Damages — The patient suffered injury, loss, or death.
In Nepal, negligence may be treated as:
Civil negligence (compensation claim) or
Criminal negligence (punishable under criminal law when death or serious harm occurs due to recklessness).
3. Criminal Law Aspect of Medical Negligence in Nepal
Relevant Provisions
Under the Muluki Criminal Code, 2074, certain sections deal with negligent acts:
Section 165 (Causing Death by Negligence):
If a person causes someone’s death through negligence or reckless act, they may face imprisonment up to 5 years or a fine or both.
Section 166 (Causing Hurt by Negligence):
Causing physical injury or harm due to negligent conduct can lead to imprisonment or fine.
These provisions apply equally to doctors and medical staff.
4. Key Case Laws in Nepal
Below are five landmark or significant Nepali cases illustrating how courts have handled medical negligence.
Case 1: Sharmila Shrestha v. Nepal Medical Council (NMC) and Others (Supreme Court, 2062 BS)
Facts:
Sharmila Shrestha’s husband died following a routine operation due to alleged negligence by the doctor. She complained to the Nepal Medical Council (NMC) seeking disciplinary action, but NMC cleared the doctor without proper investigation.
Issue:
Whether the NMC’s failure to investigate properly and ensure accountability violated the victim’s rights.
Decision:
The Supreme Court held that the Nepal Medical Council has a legal and moral duty to ensure that doctors follow professional ethics and standards. The Court directed the NMC to re-investigate and stressed that patients have the right to justice when harmed by negligent medical treatment.
Significance:
This case emphasized institutional accountability and the right of victims to a fair inquiry into medical negligence.
Case 2: Advocate Sabin Shrestha v. Government of Nepal, Ministry of Health (Supreme Court, 2068 BS)
Facts:
A public interest litigation (PIL) was filed seeking effective laws and regulatory mechanisms to address increasing incidents of medical negligence in Nepal.
Issue:
Whether the government had fulfilled its constitutional duty to protect patients’ health and regulate medical malpractice.
Decision:
The Supreme Court recognized medical negligence as a violation of the right to life under Article 16 of the Constitution of Nepal. It ordered the government to formulate clear legal provisions, standard operating procedures, and establish a compensation mechanism for victims.
Significance:
This case laid the foundation for state responsibility and policy reform in health care regulation and accountability.
Case 3: Sushil Sharma v. Dr. Keshav Prasad Upadhyaya (Kathmandu District Court, 2071 BS)
Facts:
Sushil Sharma’s wife died during childbirth at a private hospital due to the absence of an anesthetist and delayed medical attention. The family alleged gross negligence and filed both civil and criminal complaints.
Issue:
Whether the absence of proper medical attention and facilities amounted to criminal negligence.
Decision:
The court found that the hospital and the doctor failed to provide adequate care, and their carelessness directly caused the death. The doctor was held criminally liable under Section 165 of the Muluki Criminal Code, and the hospital was ordered to pay compensation.
Significance:
This is one of the few cases where criminal conviction was upheld against a doctor for negligence leading to death — marking an important precedent.
Case 4: Radhika Shahi v. Tribhuvan University Teaching Hospital (TUTH), Kathmandu (Supreme Court, 2073 BS)
Facts:
A patient, Radhika Shahi, suffered permanent paralysis after a spinal surgery at TUTH due to alleged mishandling during anesthesia and post-surgery care.
Issue:
Was the hospital and medical team negligent in performing and managing the surgery?
Decision:
The Supreme Court held that the standard of care was not met and that the hospital failed to maintain proper supervision and record-keeping, which amounted to professional negligence.
It ordered compensation to the victim and directed hospitals to improve patient-safety protocols.
Significance:
This case emphasized that both the doctor and the hospital can be held jointly liable and underscored the need for maintaining medical documentation and procedures.
Case 5: Dr. Arjun Koirala v. Government of Nepal (Supreme Court, 2077 BS)
Facts:
A surgeon was prosecuted for the death of a patient after a gallbladder surgery, which led to internal bleeding. The defense argued it was a known surgical risk, not negligence.
Issue:
Whether an unsuccessful surgery automatically constitutes criminal negligence.
Decision:
The Supreme Court held that an adverse outcome alone does not prove negligence. The prosecution must show that the doctor’s conduct fell below the accepted standard of care. The Court acquitted the doctor, noting that every medical procedure involves risk.
Significance:
This case clarified the distinction between medical risk and negligence — not every medical failure is criminally punishable.
5. Legal and Ethical Implications
From these cases, we can draw the following points:
Accountability: Both doctors and medical institutions can be held liable.
Burden of Proof: The patient must prove breach of duty and causation, but lack of proper medical records can strengthen the presumption of negligence.
State Responsibility: The government has a constitutional duty to protect patients' rights and regulate health services.
Criminal vs. Civil Liability: Criminal charges apply when negligence is gross or reckless; civil cases deal with compensation for loss or harm.
Ethical Standards: The Nepal Medical Council plays a central role in maintaining professional ethics and taking disciplinary action.
6. Conclusion
Medical negligence in Nepal is gradually being recognized as both a legal and human rights issue. Courts have become more proactive in balancing medical autonomy with patient rights. The evolution of case law — from administrative negligence to criminal responsibility — reflects Nepal’s movement toward a more accountable and transparent health system.
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