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Weak and complicated law forces Nepal’s medical negligence victims to rely on the mob for ‘justice’

Twenty-four-year-old Anisha MC Thapa gave birth to her second child on February 25, 2021, at Pyuthan District Hospital. To ensure the safety of the mother and the child, the doctors performed a c-section on Thapa. 

Initially, things were going good. But, soon Thapa started to show symptoms of internal bleeding. To curb that, doctors performed another surgery on her on February 27. But, the bleeding did not stop. As Pyuthan Hospital did not have a ventilator, it referred the case to a hospital in Butwal. But, as she was being taken to Butwal, she died.

As the news of Thapa’s death reached the ears of her family, tensions ran high at Pyuthan Hospital. Thapa’s family staged a demonstration at the hospital premises, causing chaos. They called for the hospital chief as they believed that the doctor’s negligence was the reason Thapa died.

However, things gradually calmed down after talks were held between the hospital and the family members. After the hospital promised to set up a revolving fund of Rs 500,000 in the name of the newly born, the family decided not to file a legal complaint as they left the hospital with Thapa’s body to perform her final rites. 

This incident has brought to light the dark side of medical negligence and the victim’s family’s greed. Things often go south whenever a person dies suspiciously as people create havoc at the hospital, breaking things and sometimes even beating up hospital staff that include doctors. But, this often gets solved quickly when the hospital decides to pay the victim’s family.

Locals stage a demonstration claiming a woman died due to the doctor’s negligence, in Pyuthan, on Sunday, February 28, 2021. Photo: Bijay Singh Bharati

No hope from law

On September 15, 2019, a similar incident ensued in Kathmandu. 

Kamala Bhatta, a resident of Butwal and admitted at Om Hospital, died after a nurse prescribed the wrong medicine in absence of doctors. That caused a lot of tension at the hospital as her relatives believed it was the nurse’s and the hospital’s fault. Bhatta’s relatives were adamant that they would not be leaving the hospital until the hospital took action against the doctors involved in the negligence. 

To avoid any bad press, Om Hospital requested Bhatta’s relatives to let go of the incident even offering them money to do so. But, Bhatta’s relatives denied the money and called for action against the hospital.

That resulted in the Ministry of Health and Population forming a probe committee to study what exactly had happened. But, 18 months since the incident, the probe committee is yet to submit its report, nor has it taken action against the doctor, nurse or the hospital.

“We’ve been going to the ministry to ask when they will submit their report,” says Narayan Neupane, Bhatta’s relative. “But, the only answer we get is that they are investigating the case.”

Neupane believes that nothing has been done by the ministry or the police because the hospital is too powerful.

“It’s quite disappointing to see the ministry be so powerless,” he says.

Bhatta’s family has yet to file a formal case as they believe that due to the lack of clear laws, there is no point; they feel the hospital will walk away. 

“We have realised how influential these hospitals are. They have a ‘setting’ everywhere. Even if we file a case, we know that it will just be a waste of time and money,” says Neupane.

In the cases above, there are two things that are common.

Both of the victims’ families decided not to file a case as laws are not clear enough. They believed staging a protest was the right way to call for action through which they pressured the hospital to provide them with compensation for their negligence. 

According to the Consumer Rights Protection Forum, in the past five years, the district compensation committee in Kathmandu has received 50 applications regarding doctor’s negligence while performing surgeries. Out of the 50, only 18 of these cases have been forwarded for prosecution.

Even though a lower court has offered its verdict on five of these cases, either the hospital or the victim’s family has appealed for a review at a higher court. The authorities, however, are unaware of the status of the rest of the cases.

“We file a case against the hospital, but in a few months, both parties come to us saying that they have come to a mutual understanding,” says advocate Kumari Kharel, the secretary at the Consumer Rights Protection Forum. “When that happens, the legal process ends immediately.”

From October 2018 to October 2019, 70 complaints were filed at the Nepal Medical Council (NMC) regarding the negligence of doctors. The ethics committee of the council states one-third of these cases have been looked at and a verdict has been given. 

Similarly, in the last nine months, 34 of these complaints had been filed at the NMC.

“Out of the complaints that we get, sometimes it’s not the doctor’s fault,”  says the coordinator of the ethics committee, Dr Harihar Wasti. “Some incidents where it is the doctor’s fault get solved after the hospital offers the victim’s family some amount. When that happens, even though we start a legal procedure, we cannot do anything.”

A major reason people resort to violence is a lack of faith in Nepal’s legal system and weaknesses in Nepal’s public health system, says Dr Dharma Kanta Baskota, a former president of the NMC.

Baskota says that people often do this to pay hospital bills that they cannot as they resort to using goons to create tension at the hospital. He says that if health care was free, incidents like these would not occur. 

The reason Baskota says that people often resort to violence is that rarely do doctors get punished for their negligence and the medical council cannot offer compensation to victims.

“People don’t believe that they will get justice as they believe that our legal system is flawed,” says Baskota.

The NMC, if it finds medical negligence, only has the authority to suspend a doctor’s licence for up to two years. 

“People get frustrated when the NMC tells them that it can’t offer them compensation based on their complaints. When we ask them to go through a legal process, many get agitated and resort to vandalism,” says Baskota.

According to medical economist Dr Ghanshyam Gautam, people often do this because they spend their lifelong savings on the treatment. “Some even take loans from banks and when they are told that their family member won’t survive, people get agitated,” says Gautam.

Gautam says that Nepal, like countries in the West, should either start to take the medical tax or make insurance mandatory so that it can help people out when they are at the hospital. “We need to start thinking about reforming the public health system model. When we do that, I’m sure incidents of vandalism will sop,” says Gautam.

Medical sociologist Dr Amod Pyakurel says that a belief that hospitals can cure all sorts of illness is another reason that such incidents happen after the death of the patient. As doctors are idolised, people often believe that nothing will happen to them if they visit a hospital. Pyakurel believes that problems also arise because doctors cannot explain situations to a patient’s family properly. 

“Doctors don’t tell the patient’s family what exactly is wrong with the patient and give them false hope about the patient’s survival. When that happens, the family often tells doctors to do everything they can and that results in a long hospital bill, which after the patient dies, falls on his/her family,” says Pyakurel.

A ‘grande’ fault

Even though many incidents of negligence are similar, the one that happened at Grande International Hospital is different. 

Ekata Ghimire, a resident of Kathmandu, gave birth to her first child in June 2018. She was 36 weeks pregnant and the doctors performed surgery to take the 2.85 kg baby out. As the baby was premature, the doctors transferred the baby to the neonatal intensive care unit (NICU) as he was suffering from breathing issues. Ghimire’s husband Sanjeev Neupane was told that the baby had to be put in the NICU as klebsiella bacteria had spread across the baby’s body as he was diagnosed with pneumonia.

In the first 50 days of his birth, the baby, Rihan, had to go through two major operations and was at the hospital for 10 months. In that time, the size of Rihan’s head continued to grow unnaturally and by the time he was nine months old, he underwent his fifth surgery. But, Rihan’s state did not change, after which his father Neupane had an altercation with the hospital.

Neupane grew tired of the hospital and wanted a second opinion. He showed Rihan’s report to other doctors. Every doctor he showed the report to told him the same thing that Rihan was not going to get better and asked him not to put the baby through more trouble. After that, Neupane decided to not keep Rihan at Grande International Hospital.

On May 15, 2019, Neupane then filed a complaint at the Nepal Medical Council against Grande International Hospital’s NICU and paediatric intensive care unit (PICU) along with Dr Amit Thapa. In the complaint, Neupane had also requested the council to take action against the hospital’s owners. 

A team from the council led by Prof Dr Ganesh Rai, after the investigation, came to the conclusion that the hospital and its staff were to blame for the state of the baby. But, in their report, the council stated that it had no say in the compensation which left Neupane distraught.

“We had hoped that the NMC would take some sort of action against the doctors. But, nothing happened to them,” says Neupane. “But, at least the NMC agreed that the hospital was at fault. At least, the report did say that due to their negligence, my baby would be suffering until he lives.”

Neupane, on January 24, 2020, filed a case at the Patan High Court demanding compensation of Rs 20 million and punishment to the doctors involved in the case. The case is still sub-judice. 

The open secret of ochlocracy

File: Protest launched by doctors

According to Dr Sishir Kunwar of the Pyuthan Hospital, there had been no negligence in his hospital’s recent case. He says that the reason he and the hospital apologised was due to fear of the mob that was present at the hospital. Kunwar says that had the hospital had a ventilator, they would not have had to refer Thapa to another hospital. He says that as Thapa died on the way to another hospital, Thapa’s family brought her deceased body to the hospital and staged a protest. 

“It was quite scary. An entire village had surrounded the hospital. They had a mob-like mentality,” says Kunwar. “That is why local leaders approached us and asked us to apologise to avoid further tension. As soon as the hospital said they would compensate the family, the mob quieted down and the family didn’t even press charges.”

Nepal Medical Association President Dr Lochan Karki says most hospitals, due to the fear of the mob, decide to offer compensation to the victims without even thinking about legal processes. He says almost 90 per cent of the cases that come into public light are solved without going into a legal process. He further says that out of these cases, only a few amount to negligence. 

“A mob comes into the hospital and starts to break things. It’s quite scary. They can cause damages up to Rs 2 million, which is why many, even if it isn’t their fault, offer compensation of around Rs 500,000,” says Karki. “Had there been a rule to prosecute the people who cause damages at the hospital, I’m sure hospitals wouldn’t offer out compensations.”

The coordinator of the NMC’s ethics committee Dr Harihar Wasti says medical negligence cases happen due to problems in machinery or due to human error. Apart from that, Wasti says, doctors not making things clear to the patient’s family is also another reason.

“I understand that people will be suspicious when their loved ones die an unnatural death. But, that doesn’t mean they should go around and destroy hospital premises and attack the hospital staff. Everyone should follow a legal procedure,” says Wasti.  “Sometimes, it’s as if people know that they can ask for money just by doing so, which is wrong. But, laws are also not in favour of genuine cases, due to which people resort to doing this.”

The former coordinator of the NMC’s ethics committee, Dr Dundi Raj Paudel, says that even though two parties sit for talks, not much is achieved out of it as there is a lot of tension between the patient’s family and the hospital. This, he says, has resulted in even genuine victims not receiving the justice they deserve.

Reluctance to follow rule  

According to the Nepal Medical Council, no doctor or hospital has filed a legal case against vandalism from people accusing them of negligence. The reason, the Nepal Medical Association’s general secretary Dr Badri Rijal says, is because the hospitals do not want bad press about people dying at their hospital due to negligence of doctors.

Rijal says that as hospitals take years to make a reputation, they do not want to tarnish that, which is why most pay people and hide things under the carpet. He says that until the verdicts do not come out, the credibility of the hospitals and doctors is in question, which is why normally, hospitals decide to pay people.

The association’s president Dr Lochan Karki says that unless a rule is not made about punishing people who vandalise hospital property, things will not change.

“Unless a probe is done, no one will know who is to blame,” says Karki.

Rijal from the NMA says that there are cases when doctors are wrong but argues that people blaming doctors every time when people die is wrong and dangerous.

The NMA’s former president Mukti Ram Shrestha says that most cases in which people cite negligence are caused by hired goons. These goons, according to Shrestha, tell the deceased patient’s family that they will arrange everything and cause problems at hospitals. 

“If goons aren’t mobilised to talk to hospitals, why do you think all cases are settled before the legal process is followed,” questions Shrestha. 

Complicated complaint procedure

Even though the Nepal Medical Association says 90 per cent of the cases are solved by hospitals offering compensation, the actual data, however, is not available anywhere. According to the association’s data, from 2013 to 2021, there have been 34 cases in which a mob has either assaulted doctors or vandalised hospital property.

Of the 34 incidents, 22 happened at private hospitals and 12 at government hospitals. The association is not aware of whether any legal measures were taken in these incidents.

The association’s former president Shrestha says that the association has not been able to correctly collect data as a deal is normally struck between parties before the case is taken to the court.

Consider this case. On February 23, 2018, a Norvic Hospital team led by Dr Pravin Nepal had operated on a patient’s wrong leg. Thirty-eight-year-old Bindu Poudel had a problem in her left leg, but the doctor and its team had operated on her right leg.

The hospital, agreeing to its mistake, then promised to offer free treatment if Poudel faced any problems in her legs. Even though Poudel’s family had reached an agreement with the hospital, the medical council still punished the doctors involved for gross medical negligence. Nepal and one other doctor were suspended from practising medicine for a month.

So, why don’t victims want to go through a legal process? The answer is simple – Nepal’s weak and vague laws.

Sanjeev Neupane, who filed a case against Grande Hospital, says he filed a case because he does not want others to face the same problem he had to face.

“If my child wasn’t as critical as he is, I don’t think I would have filed a legal case,” he says.

With vague laws that deal with medical negligence and no autonomous body to deal with the cases, people often refrain from filing legal cases, says the former coordinator of NMC’s ethical committee, Dr Dundi Raj Paudel.

He says that had there been an autonomous body with experts in medicine, forensic science and law that went to these hospitals as soon as the incidents happened, people would have been filing cases against hospitals and doctors. 

“The current laws are limited and people don’t believe they will get justice, which is why they resort to using middlemen to talk to the hospitals,” says Paudel.

But, negligence is common

File: Patan High Court

The NMC’s ethical committee coordinator Wasti says these types of incidents are common. 

On May 26, 2017, something weird happened at Manmohan Hospital. Shiva Rimal had gone to the hospital to get his stone fixed. But the hospital doctors took out his kidney. After Rimal’s wife found that out, she signed a six-point agreement with the hospital as per which she was assured free medical care and education for her children, employment opportunity for Rimal at the hospital and life insurance.

But, when Rimal found out about the agreement, he wanted more. He wanted to know why his kidney had been taken out and asked for life insurance worth Rs 5 million. However, the hospital told him that they had taken out his kidney to save his life and denied his new demands. 

The case was then investigated by a committee of the Ministry of Health and Population. The committee highlighted the errors done by both Rimal and the hospital. 

The first one was that the hospital should have taken Rimal’s permission in writing before taking out his kidney although it was not involved in kidney trafficking.

The second fault was the hospital not telling Rimal or his family that they had taken out his kidney. And the last problem the committee found was the hospital signing the agreement with his wife rather than with Rimal himself. The committee also came to the conclusion that the Rimal family was influenced by others and had tried to escalate the issue further.

The incident since then has not been talked about.

In section 23 of the Consumer Protection Act 1998, there is a provision of establishing a compensation committee. That section had also put medical negligence into its bracket. With the help of this act, in 2019, Pushpa Gyawali had filed a case against the Civil Service Hospital demanding a compensation of Rs 4.5 million. Kathmandu District Court has asked the hospital to give out partial compensation to Gyawali. The full text of the verdict is yet to be made public, says advocate Kharel.

Similarly, in December 2016, a case demanding Rs 4.75 million in compensation was filed against Grande International hospital. The case, four years on, is still sub-judice. A similar case demanding Rs 11.3 million was filed against Bhaktapur-based Nepal Korea Friendship Municipality Hospital in 2019. The case is also sub-judice. Dozens of similar cases are stuck at various courts.

In 2018, the Consumer Protection Act was amended. Sections 50, 51 and 52 of the act have added provisions to include medical negligence in them. The amendment also has a provision of establishing a consumer court. The court members would include a district judge, a judicial officer and a government official.

The act has given the consumer court the right to investigate the case and also determine compensation. However, the court has not been formed anywhere to date and these cases are being seen at the concerned district court. 

The secretary at the Consumer Rights Protection Forum, advocate Kharel, says as the legal process is quite long and tedious, people often decide to take whatever deal they are given and walk away. 

“The verdicts of these cases take years. Even when the verdicts come, people often appeal at a higher court. Many find this process tedious and are compelled to take whatever deal they get,” says Kharel. 

But, Kharel says that whenever a case is filed, the hospital often comes to the victim with a deal. 

“They want to make sure they are not shown in a bad light, which is why they come with a good deal,” says Kharel.

Efforts to strengthen law

Due to the lack of solid laws, the council of ministers on September 18, 2017, had ordered the Health Ministry to manage proper compensations, insurance and a fair investigation in cases related to medical negligence.  But, after protests from Nepal Medical Association, the decision was taken back in 72 hours.

Doctors said that the Security of the Health Workers and Health Organisations Act 2010 did not allow for such a law to be passed by the council of ministers. The doctors, instead, demanded that action be taken against people who attack medical professionals. They said that many were being released on bail and added that these people should be arrested and put to jail without bail.

Section 232 of the National Penal (Code) Act, 2017, which also deals with offences related to treatment, states that any cases of medical negligence would be punishable. The section stated that a person found guilty of medical negligence would be jailed for five years and would have to pay a fine of Rs 50,000. If the person was found guilty of recklessness, they would be jailed for three years and have to pay a fine of Rs 30,000. The act also had a provision that the doctors themselves had to pay the patient compensation themselves. 

The act also prohibits carrying out any experiment on the human body without consent. Those doctors who do so could be jailed for life when the patients died. But, if the patients suffered problems in their organs, the doctors could be jailed for 10 years and pay a fine of up to Rs 100,000.

But, doctors from across the country staged protests stating that doctors should not be booked for murder cases. After continuous pressure from them, the act was amended and added that if the negligence of doctors led to the death of a patient, they would be jailed for up to five years and pay a fine of up to Rs 50,000. Similarly, if the doctors’ recklessness caused a patient’s death, they would be jailed for up to three years and had to pay a fine of up to Rs 30,000.

The act has a provision to form a Charge Investigation Committee. An undersecretary looking at legal affairs at the Health Ministry, one member from the medical council, an official of the policy and planning division of the Health Ministry, an expert doctor in the specific case, a member from the Consumer Rights Protection Forum, an SSP from Nepal Police and a joint government attorney from the Office of the Attorney General are supposed to be included in the committee.

A total of 13 complaints have been registered at the committee in the past two years. Two of them, however, have been dismissed due to insufficient legal grounds while the verdict on two other cases will be given soon. Three complaints are being heard at different courts whereas nine complaints are yet to be seen by the committee.

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Budhathoki is an Onlinekhabar correspondent, covering health and social affairs.

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