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Negligence as defined by Merriam-Webster's Dictionary is "failure to exercise the care that a reasonably prudent person would exercise in like circumstances." In much simpler terms negligence means a lack of success in taking proper care of something. Medical Negligence in this sense can be defined as the failure of a medical practitioner to provide proper care to the patient. Medical practitioners provide care that a reasonably prudent practitioner would have exercised. Medical negligence is considered a crime against consumers because it violates their rights to safe and efficient services under consumer protection laws. Medical negligence occurs when a healthcare professional or institution fails to provide the standard of care expected, leading to harm, injury, or death of a patient.
There are these two terms in a medico-legal field that are often confused with; Medical Malpractice and Medical Negligence. Medical Malpractice and Medical Negligence are different terms. While the words Malpractice and Negligence are often used synonymously, Medical Negligence and Medical Malpractice can't be used interchangeably.
Medical Malpractice and Medical Negligence both occur when the medical practitioner or medical professional does not follow or breach the 'standard duty of care. This would clarify what exactly Medical Negligence is; Medical Negligence is the breach of duty of care with no intention of doing so but rather it is a product of negligence. It is a product of a lack of proper care while commission or omission of standard care when performing certain acts. However, there is a lack of intention since it is the result of negligence. For example: denying to admit an emergency patient brought in the gate of a hospital is medical negligence of the admiration of hospitals, doctors, and nurses if such a patient suffers death from the denial since it is the duty of the hospital to provide the first aid and make arrangement to send to other hospitals without delaying. The most frequent case of medical negligence found in Nepal is also this since yearly many of the patient lose their life while roaming around from one hospital to another which needs to fall under the joint liability of all hospitals who deny. Other examples of medical negligence include:
- Error in surgical treatment
- Error in diagnosis
- Performing beyond the level of competence by doctor and nurse
- Failure to attend or treat the patient at the time of emergency
- Failure to advise and communicate
Malpractice however means someone doing something wrong that is beyond his/her job description. It is usually intentional. For example; it is the job of a doctor who prescribes medicine, but when it is done by a nurse it would be malpractice. Negligence, on the other hand, is an act where a medical care provider fails to do something that he/she should have done. Medical Negligence includes those acts- performed or not performed that deviate the professionals from the medical standard of care.
Some examples of medical malpractice include:
- Overprescription of drugs with the motive of commission.
- Prescription of unnecessary drugs for pocket filling.
- Purchasing damaged or substandard medical equipment showing the price of a high standard.
- Prescription of medicine by a person not qualified as a medical practitioner.
- Establishment and operation of pharmacy without the authority of the regulatory body
- Government hospital doctors pressuring or influencing patients to visit their clinic for treatment that could be possible even in hospitals.
- Recommendation of unnecessary surgery in minor petty cases.
- Withholding an already dead patient in the hospital ICU for many days without letting the patient's family know and meeting the dead patient just with a motive to impose extraction of more money in the name of hospital charge per day.
- Altering the contents of the patient's treatment file document with a motive to escape liability for negligence.
Muluki Criminal Code 2074
Chapter 19 of Muluki Criminal Code (2074) talks about the Offence Relating to Medical Treatment where liabilities are divided as:
A) Doctor’s Liability:
- Intentional killing (sec 231) : Life imprisonment
- Reckless treatment causing death: Up to 5 years and up to 50 thousand fine
- Negligent treatment causing death: Up to 3 years and up to 30 thousand fine
- Intentional grievous hurt: Up to 10 years and upto1 lakh fine
- Reckless treatment causing grievous hurt: Up to 5 years and up to 50 thousand fine
- Negligent treatment causing grievous hurt: Up to 3 years and 30 thousand fines
- Treatment by an unregistered doctor causing death or grievous hurt: Up to 15 years imprisonment
- Treatment by an unregistered doctor (strict liability): Up to 3 years, 30 thousand fine
B) Pathologist's Liability:
- False report causing death: Punishment as per homicide law
- False report causing grievous hurt: Punishment as per hurt law
- False reporting (strict liability): Up to 3 Years and 30 thousand fine
C)Experimentation on the Human Body:
- Death, Punishment as per homicide law
- Grievous hurt, as per hurt law
- Unauthorized experimentation (strict liability): Up to 3 years and 30 thousand fine
D) Adulteration in Medicine:
- Death, as per homicide law
- Physical harm short of death, Up to 10 years and to lakh fine
- Grievous hurt, as per hurt law
- Adulteration in medicine (strict liability), Up to 5 years, 50k fine.
E) Medicine Seller's Liability:
- Giving wrong medicine: Up to 2 years or 20 thousand fine or both
- Selling risky medicine without prescription: Up to 2 years or 20 thousand fine or both.
- Selling expired medicine: Up to 1-year imprisonment and fine up to 10 thousand.
The implications are huge in terms of loss of trust in the whole system, calling for the need of accountability and follow-up to standards. Besides, medical negligence reflects mere accidents regarding standards of care, while practice in medical situations evidences deliberation across the threshold beyond the accepted code of ethics. Both leave detrimental consequences on patients' rights and raise questions on healthcare delivery integrity. The Nepalese Muluki Criminal Code 2074 has adequately dealt with these offenses, providing stern punishments for various acts that may cause harm or death, including those by unregistered practitioners or through unauthorized experimentation. However, enforcement remains a challenge, exacerbated by systemic issues such as inadequate resources, poor regulation, and lack of awareness among the public. The negation of negligence and malpractice is furthered by regulatory frameworks, improved education in medicine, and instilling a culture of ethical responsibility. Attention to patient safety and equity, efficiency, and ethics in healthcare will go a long way toward giving patients confidence in the medical system, both within Nepal and worldwide.