Legal remedy to medical negligence

Tasmiah Nuhiya Ahmed | Published: 00:00, Aug 13,2018 | Updated: 23:01, Aug 12,2018


MEDICAL negligence has become a well-liked subject of attention and dialogue in Bangladesh. There is, however, no precise and all-inclusive legislation yet to prevent medical negligence. As of now, the profusion of incidents of medical negligence by and large goes without any legal action but often leads to violence, which as a result paves for an exasperating condition where the discernment of general people about the veracity of medical service are engrossing a descending turn.
Medical negligence is a clear violation of right to health by professionals who are essentially on duty to protect when emergency strikes and the health rights are under threat. The number of fatalities resulting from medical negligence is not negligible at all. A study says that medical errors are the third leading cause of death in America after heart disease and cancer, causing at least 250,000 deaths every year.
As for statistics in Bangladesh, Ain O Salish Kendra published a report in 2008 where 504 incidents of medical negligence between June 1995 and September 2008 were listed. According to the World Medical Association Declaration of Geneva, a member of medical profession shall solemnly pledge stating that health of the patient will be the first consideration.
In contrast, it connotes culpable negligence in the field of medical science and it involves risk to the health and being of an individual who entrusts well being into the hands of a medical professional. It is certainly a clear violation of the right to health and right to life guaranteed by the constitution of Bangladesh under Article 18 and 32.
Our Constitution protects ‘the right to life’ under Article 32 as a fundamental right for its citizens. Furthermore, in the fundamental principles of state policy, the state has been obligated to ensure the ‘basic necessities of life, including food, clothing, shelter, education, and medical care and to ‘raising of the level of nutrition and the improvement of public health’. In brief, the constitutional remedies for the protection of health and life can be found under Articles 15, 18 read with Articles 31, 32, 44. The enforcement of such rights can be exercised through Article 102 (writ petitions) of the constitution.
Generally, the criminal complaints are being filed against doctors alleging the commission of offences punishable under Section 304A or Sections 336 or 337 or 338 of the Bangladesh Penal Code 1860 alleging rashness or negligence on the part of the doctors resulting in the loss of life or injury of varying degree to the patient. However, Section 80 and 88 of the Penal Code contain defences for doctors accused of criminal liability.
The Medical and Dental Council works as the supervising body for doctors and health professionals in Bangladesh. According to the Medical and Dental Council Act 2010, when any medical practitioner or dentist is found guilty of misconduct in respect of his profession, the council may refuse to permit registration of that person (Section 23). The council may also direct the removal of the name of any registered medical practitioner or dentist from the registration, altogether or for a specified period, on account of professional misconduct.
Furthermore, Section 5(a) of the Code of Medical Ethics provides that gross negligence of medical and dental practitioners in their duties to their patient may be regarded as misconduct sufficient to justify the suspension or the removal of their names from the registrar.
The Medical Practice and Private Clinics and Labs (Regulation) Ordinance 1982 has given supervisory powers to the director general of health services. The director general of health services or any other officer authorised by him shall have the authority to inspect any chamber of registered medical practitioner, private clinic, private hospital or pathological laboratory whether they have contravened or failed to comply with any provision of this ordinance (Section 11).
In case the director general finds that they have contravened any provision of this ordinance, he may recommend the government in case of medical practitioner to dismiss him from carrying on medical private practice, in case of private clinic or private hospital to cancel the license in respect thereof and in case of pathological laboratory to close it down.
Medical negligence with special reference to the Consumer Rights Protection Act 2009 has the same sanctity of protection and enforcement of rights of patients. Under this act, ‘service’ means, inter alia, health services which are made available to the consumers in exchange of price but this will not include free service (Section 2 (22) of the act).
Now they can institute a suit under this act because a medical patient is considered a consumer and the medical institutions or professionals are service providers under Section 2 although it is not expressed in the act but cases have been filed and accepted by the courts. Section 45 of this act has dealt with the punishment of not selling or delivering the promised product or service. It provides for imprisonment for a term not exceeding three years, or with fine not exceeding Tk 2,00,000, or both. Another punishment has been provided of endangering life or security of the consumer in Section 52 where it is stated that whoever does any act violating the rules or regulation under this act or law which can endanger the life or security of the consumer will be punished with imprisonment for a term not exceeding one year, or with fine not exceeding Tk 50,000, or both.
The section which can directly be connected to the medical negligence is Section 53 which stated that if any service provider causes damage to money, health or life of service receiver by negligence, irresponsibility or carelessness, he will be punished with imprisonment for a term not exceeding three years, or with fine not exceeding Tk 2,00,000, or both.
However these punishments are not adequate because the amount of fine may be sometimes inconsistent with the loss or injury caused by the service providers. Moreover, if a consumer under the Consumer Protection Act 2009 wants to lodge a complaint under Section 60, first, the complainant has to lodge a complaint before the director general or authorised person of the department within 30 days of accrual of the cause of action. And according to Section 61, the magistrate will not take cognisance of any offence if charge sheet is not submitted within 90 days of lodging complaint.
It means even if a consumer suffers from any loss, the consumer cannot file a complaint directly to the magistrate and the magistrate would not take cognisance until the magistrate gets the charge sheet from the authorised person within 90 days. So the consumers sometimes get frustrated or do not show interest as this procedure is complex and seems inconvenient. In cases of private sectors, the director general has the power to find out defects and lacking by checking the health-nursing care but cannot take any preventive measure.
The director general will only inform the health secretary and the director general of the health services directorate general. So, it is a big obstacle to punishing medical professionals working in the private sector which is why the occurrences of professional negligence in private clinics are increasing day by day.
The term ‘medical profession’ has not been inserted expressly in Ssection 2 whereas in the Consumer Protection Act of India 1986, the term has been added under Section 2 (1) (o) in 1995. The Supreme Court in the case Indian Medical Association v VP Shantha (3 CPR (1995) 412) decisively included the health profession as a subject matter under the Consumer Protection Act. Indeed, this term should be inserted in our act so that it becomes definite that the victims who suffer through medical wrongs go to the consumer court and seek proper justice.
Although there is a criticism that whether medical care is to be regarded as merely a product, but it has tremendously helped to tune some cases of medical negligence in neighbouring India where medical negligence litigation is credited with bringing about safer practices in the health care provisions.
Therefore, amendments may be made to the Consumer Protection Act of Bangladesh to make it effective and adjustable to medical negligence litigation so that the state can offer surety of improvement to patients in health care delivery system addressing common good of the public health.
Tort actions have been introduced recently in Bangladesh but are not sufficiently familiarised yet in our legal system. This is because the law of tort is not codified and Section 9 of the Code of Civil Procedure 1908 enables a civil court to try all suits of civil nature and also confers upon courts the jurisdiction to apply the law of torts as an undeniable part of principles of justice, equity and good conscience.
A claim in tort law, as opposed to criminal law, is an action for recovery of damages (ie monetary compensation) which seeks to compensate the harms suffered by a person as a result of an intentional or unintentional act of another person, rather than putting the wrongdoer in prison. The person claiming the damages (ie the claimant) can be a primary or secondary victim. Negligence is the legal term denoting the failure to do (or not do) something that a ‘reasonable person’ would have done under the same circumstances, which has been construed to protect others from foreseeable risks of harm. Doctors or medical practitioners are among those subject to negligence claims when a medical negligence occurs.
Without reliance on statutory provisions, pressing damages as a tort claim purely on equitable ground is a relatively new trend in Bangladesh. We hope that we get familiar with the implementation of the principle of tort law more often in medical negligence cases than before and then we can expect to ensure accountability for medical negligence in wider scale.

Tasmiah Nuhiya Ahmed is a research assistant (law) at the Bangladesh Institute of Law and International Affairs.

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