The inadequacy presiding in the health sector is the root cause
Medical negligence is generally an act or omission of a medical practitioner or professional, leading to a breach of duty of care which results in causing injury or damage to a patient. It is a clear violation of a person’s right to health and life.
The term “medical negligence” has recently attained a ground for discussion in Bangladesh, owing to the budding cases of misconduct practiced by the medical professional. It is an issue of global concern. Medical negligence contributes as the third major cause of death prevailing in the US, which transpires the urgency of rectification in the developed nation.
What the law says
The constitution of Bangladesh acknowledges the right to health and medical care as enshrined in Article 15 and 18. In addition to that, as per Article 32 of the constitution, the right to life can be inferred as a fundamental right which is an established human right as well.
Every citizen is entitled to such basic human rights, which are the precondition of existence and survival in everyday life, and it is the state’s duty to ensure such rights. The infringement of any constitutional right can be challenged under Article 102 of the constitution.
Generally, in the majority of countries, a claim of medical negligence is treated as an actionable civil wrong. Medical negligence, however, in common law jurisprudence comes under the purview of tort law. Although some countries deal with such wrongdoings by relying on consumer rights protection, such as India, Malaysia, etc.
As per Section 23 of the Bangladesh Medical and Dental Council Act 2010, if any physician, dentist, or medical assistant is found guilty of misconduct or violation of this act, the Council may cancel the registration of the practitioner.
But the act itself has not clearly expressed the forms of misconduct on part of the practitioner. Further, Section 30 denotes the punishment for prescribing banned medicines.
Additionally, the Code of Medical Ethics provides the suspension or removal of the name of a medical or dental practitioner from the Register (Sec 5). However, the Code does not specifically address the degree of standard of care owed to the patient by the practitioner.
The Medical Practice and Private Clinics and Laboratories (Regulation) Ordinance 1982 has granted supervisory powers to the Director-General of the health service which allows the director-general to inspect any private clinics or medical centers and contradictions of any provision will lead to punishment under this ordinance.
Apart from this, criminal action can be brought by relying on the Penal Code of Bangladesh. Although any provision of the Penal Code doesn’t define medical negligence, nor any specific provisions indicating culpability of such misconduct.
However, some provisions do stretch relevance concerning acts done by medical professionals endangering the life and health of an individual and public at large through their negligent act or omission or fraudulent act.
Section 304A, Sec 336, 337, 338 deal with causing death by negligence and acts endangering the life and personal safety of others. Moreover, Section 312, 313, 314 deals with causing miscarriage and death caused by acst done with intent to cause miscarriage.
However, the Penal Code demonstrates a wide scope of immunity for a medical practitioner under Section 88 which provides, “Act not intended to cause death, done by consent in good faith for person’s benefit.”
This immunity does not extend to such cases where the act itself is an offense independent of any harm which it may cause or be intended to cause.
A suit can be instituted by relying on the Consumers’ Right Protection Act 2009. Section 2 (22) of this act has included health services, but not free services. Section 53 of this act directly deals with medical negligence.
However, a claim under this act is not desired, owing to its complex procedures coupled with the stringent time limit. The most efficient way to bring a claim of medical negligence in Bangladesh is through tort law.
As there is no codified tort law in our judicial system, bringing a claim for compensation will be much treated as a civil dispute which is most likely to be under the purview of the Code of Civil Procedure (CPC). The CPC does not illustrate any compensation for medical negligence cases.
Therefore, scarcity of established and structured law denotes the uncharted litigation under tort law or any compensation claim under civil law.
It is very puzzling for both the aggrieved parties and lawyers to choose an appropriate legal route to file a case against medical practitioners, owing to a lack of proper legislation to regulate medical negligence.
To file and run a case, claimants have to provide several types of fees to the court and bear many other expenses that outweigh the remedy given to them. Therefore, the victims feel discouraged to take legal action due to long and complex legal proceedings.
It is most likely that medical institutions would be reluctant to provide the required information for such cases. To ensure access to information, the Right to Information Act 2009 would be an essential instrument.
A gross insufficiency
Amidst the occurrence of medical negligence, we often do not explore the unwarranted doctor-patient ratio that resides in the medical sector.
As per the report published in 2013 by Ain O Salish Kendro, per capita expenditure on the health sector should be $34, whereas it is only $5 in Bangladesh and the standard ratio for a doctor to nurse is 1:3, whereas in Bangladesh the standard is 1:0.48 (2014).
This screams of the inadequacy presiding in the medical sector. Nevertheless, this insufficiency should not serve as an instrument to be discharged from such misconduct.
The deconstructive notion of getting away with such misconduct is attributable to the lack of faith in the medical sector. Therefore, this rancorous chain must be broken by the only way of bringing established and structured law along with proper training among lawyers, judges, and law enforcement agencies to ensure proper accountability.
Additionally, medical professionals must be trained to be accustomed to medical law and professional ethics before they are registered to practice medicine. Further, citizens should be educated regarding this negligent practice.
Nusrat Zahan is an associate lawyer and a certified Human Rights Trainee.