• MEDICAL NEGLIGENCE
KATHMANDU, JUNE 2
The Supreme Court has ruled that in cases of medical negligence, discovery of harm rule should apply in determining the statute of limitation.
A division bench of Justice Sapana Pradhan Malla and Nahakul Subedi ruled on a writ filed by Vayodha Hospital and others against Pallavi Shrestha and others that unlike in forgery and fraud cases where the statute of limitation for filing a case starts from the day the crime is committed, statute of limitation in a medical negligence case starts from the day the cause of medical negligence is determined.
Cause of action for statute of limitation does not arise until the victim gets reasonable and logical information from an expert about the medical negligence, the SC observed in its ruling. The SC delivered the verdict on December 22, the full text of which was prepared on Wednesday.
Proprietor of Vayodha Hospital Ravi Kumar Gupta, doctors working in the hospital Abhay Yadav and Shashi Kumar Jha had filed a writ of certiorari at the SC against Pallavi Shrestha and others seeking to quash Kathmandu District Court's action on a compensation case filed by Pallavi Shrestha. Shrestha had filed the case against the hospital accusing the doctor involved in her treatment of medical negligence.
The apex court said that in medical negligence cases, it should not be assumed that the effects or consequence of medication against any disease will be seen immediately.
In some cases, patients may need to continue his/her treatment for some time.
Hence, the patient cannot be required to file a case of medical negligence within the strict time limit.
The court cited the Dinesh Bikram Shah versus Srijana KC case where the SC had ruled that the time limit should be counted from the day the impacts of a medicine begin to show and not the day when the doctor prescribes the medication or the day when the patient takes the first dose of medication.
The court said that Section 50 of the Consumer Protection Act stated that 'six months from the date harm occurs' means from the date the patient experiences harm and not from the date the act of medical negligence occurred.
The bench observed that the doctrine of continuous harm should be taken into account while deciding on statute of limitation in medical negligence cases.
If strict adherence to the general statute of limitation is followed in medical negligence case, a situation of right without remedy may arise, the court observed.
The court cited the Indian Supreme Court's ruling in VN Shrikhande vs Anita Sena Fernandes case.
The Indian court said, " In cases of medical negligence, no straitjacket formula can be applied for determining when the cause of action accrued to the consumer. Each case is to be decided on its own facts. If the effect of negligence on the doctor's part or any person associated with him is patent, the cause of action will be deemed to have arisen on the date when the act of negligence was done. If, on the other hand, the effect of negligence is latent, then the cause of action will arise on the date the patient or his representative-complainant discovers the harm/injury caused due to such act or the date when the patient or his representative-complainant could have, by exercise of reasonable diligence, discovered the act constituting negligence."
The SC division bench said that it has been ruled in some other countries as well that in medical negligence cases the statue of limitation starts from the day the experts conclude that an act of negligence had occurred.
According to case file, Shrestha had gone Vayodha Hospital on 25 October 2020 for treatment of injured left ankle and she was told by the hospital staff that she would be seen by Doctor Abhay Yadav but she was treated by another doctor. Shashi Kumar Jha. She had infection after the treatment and she had gone to Grande International Hospital and B and B Hospital before undergoing operation at Lucknow based Ahuja Hospital on 20 November 2022. She said that she lodged a complaint at Nepal Medical Council on 23 April 2021 and she got an email from the NMC on 6 December 2021.
Shrestha filed a plaint at Kathmandu District Court on 22 December 2021 as per Section 50 of the Consumer Protection Act within six months seeking compensation of more than 1.3 million rupees, including the money she spent for her treatment and lawyers' fee.
She claimed in the case that the statute of limitation should be counted from 6 December 2021 when she received email from the NMC and not the date when she visited Vayodha Hospital.
The hospital had said that although the letter head of the prescription bore the name of Dr Yadav, she was seen by Dr Jha as the latter was on call.
A version of this article appears in the print on June 3, 2023, of The Himalayan Times.
