Medical Negligence

What can be done

Two premature newborn babies were pronounced dead by doctors and then subsequently found to be alive in Faridpur and Chittagong recently. The duty doctor even issued a death certificate in one case. Sadly, both babies lost their battles with fate and eventually passed away. The neonates might have survived if they were treated properly right after birth. 

These are just glimpses of a vast canvas which portray the scenario of negligence in the healthcare sector of Bangladesh. Countless patients are suffering silently from maltreatment everyday across the country.  The medical profession is a very sensitive one. Doctors can be admired or reviled, based on the treatment they give. But it cannot be denied that lack of accountability increases the likelihood of incidents of negligence day by day.  
In 2013, the Law Commission of Bangladesh recommended enacting laws on this important issue to save lives, raise the standard of health services and above all, make physicians accountable. Regrettably, this urgent piece of legislation is yet to be enacted. 
Negligence is defined as ‘failure to exercise reasonable care and skill’ in a particular situation. Medical negligence is also termed as clinical negligence, which denotes a negligent act or omission by physicians, surgeons, pharmacists, anesthesiologists, nurses, intern-doctors, medical assistants, hospital personnel or any other medical service provider in performing his or her professional duty towards a patient. 
Medical malpractice is usually seen as an actionable civil wrong, the remedy for which is normally monetary compensation. However, medical malpractice, coupled with criminal negligence, generally gives rise to a criminal offence, and it is generally dealt with under criminal law. Clinical negligence is a breach of legal duty for taking care, owed by one person to another, which results in damage being caused to a person. For a medical professional, it is gross deviation from accepted levels of healthcare. 
However, to prove a claim, the claimant must establish that: the alleged commission or omission must have a causal relation in order to qualify as negligence; in determining ‘negligence’ it is to be seen whether in a given situation, a person of general prudence would have taken that particular step; the plaintiff incurred an injury, loss or harm; the damage or harm done to the patient was a direct result of the negligent care; and the state of negligence is to be determined in the light of overall considerations, for example, hospital facilities, conduct of assistants and staff, etc. 
There is very limited scope under the Penal Code (PC), 1860 to prosecute a medical practitioner for his/ her negligent performance in Bangladesh. Furthermore, exemptions and immunities given for the defence of ‘good faith doctrine’ narrows the scope for criminal action against medical malpractice. In addition, the Code of Medical Ethics, 1991 barely touches on the matter. 
Apart from these, the Consumer Rights Protection Act, 2009 offers another way for a victim to claim compensation for medical negligence. Though not expressly stated in the Act, a patient can be considered as a consumer and the medical institution or professional as the service provider.  However, the penalties are not adequate because the amount of fine may be sometimes inconsistent to the loss or injury caused by the service providers. A judicial review can also offer collective remedy, in the form of public interest litigation (PIL), regarding medical negligence.
Moreover, the concern is not only against healthcare professionals, but also their employer, ie the hospital or clinic, in cases of negligence. Additionally, all the persons engaged in the process of medical maltreatment, including fellow physicians, nurses and hospital personnel should come within the periphery of criminal responsibility in any given criminal action. These facts are a wake up call for the aggrieved to take action not only against the doctor involved, but also against the whole hospital management. 
It is high time to define medical negligence properly for its nature and uniqueness. To do this, opinions can be taken from physicians, public health specialists and citizen representatives. Quality medical education, training and enhancement of skills need to be ensured to upgrade the standard of our public health sector. Hospital and supporting staff must also be well equipped. Medical ethics should be given more importance in the medical curricula. Furthermore, an accountable administration in both private and government hospitals would reduce the cases of negligence. Special health courts to redress negligence issues by way of awarding compensation, or an alternative dispute resolution (ADR) system may be constituted. A separate authority could be established to oversee the quality of medical services provided, and resolve medical disputes. 
Hospitals are the last resort for patients and they go there nurturing blind trust in their hearts. Hence, medical professionals must be responsible for ensuring the highest standards in healthcare. 

The writer is an advocate and assistant professor, Department of Law, Dhaka International University.

Medical Negligence

What can be done

Two premature newborn babies were pronounced dead by doctors and then subsequently found to be alive in Faridpur and Chittagong recently. The duty doctor even issued a death certificate in one case. Sadly, both babies lost their battles with fate and eventually passed away. The neonates might have survived if they were treated properly right after birth. These are just glimpses of a vast canvas which portray the scenario of negligence in the healthcare sector of Bangladesh. Countless patients are suffering silently from maltreatment everyday across the country. The medical profession is a very sensitive one. Doctors can be admired or reviled, based on the treatment they give. But it cannot be denied that lack of accountability increases the likelihood of incidents of negligence day by day. In 2013, the Law Commission of Bangladesh recommended enacting laws on this important issue to save lives, raise the standard of health services and above all, make physicians accountable. Regrettably, this urgent piece of legislation is yet to be enacted. Negligence is defined as failure to exercise reasonable care and skill in a particular situation. Medical negligence is also termed as clinical negligence, which denotes a negligent act or omission by physicians, surgeons, pharmacists, anesthesiologists, nurses, intern-doctors, medical assistants, hospital personnel or any other medical service provider in performing his or her professional duty towards a patient. Medical malpractice is usually seen as an actionable civil wrong, the remedy for which is normally monetary compensation. However, medical malpractice, coupled with criminal negligence, generally gives rise to a criminal offence, and it is generally dealt with under criminal law. Clinical negligence is a breach of legal duty for taking care, owed by one person to another, which results in damage being caused to a person. For a medical professional, it is gross deviation from accepted levels of healthcare. However, to prove a claim, the claimant must establish that: the alleged commission or omission must have a causal relation in order to qualify as negligence; in determining negligence it is to be seen whether in a given situation, a person of general prudence would have taken that particular step; the plaintiff incurred an injury, loss or harm; the damage or harm done to the patient was a direct result of the negligent care; and the state of negligence is to be determined in the light of overall considerations, for example, hospital facilities, conduct of assistants and staff, etc. There is very limited scope under the Penal Code (PC), 1860 to prosecute a medical practitioner for his/ her negligent performance in Bangladesh. Furthermore, exemptions and immunities given for the defence of good faith doctrine narrows the scope for criminal action against medical malpractice. In addition, the Code of Medical Ethics, 1991 barely touches on the matter. Apart from these, the Consumer Rights Protection Act, 2009 offers another way for a victim to claim compensation for medical negligence. Though not expressly stated in the Act, a patient can be considered as a consumer and the medical institution or professional as the service provider. However, the penalties are not adequate because the amount of fine may be sometimes inconsistent to the loss or injury caused by the service providers. A judicial review can also offer collective remedy, in the form of public interest litigation (PIL), regarding medical negligence. Moreover, the concern is not only against healthcare professionals, but also their employer, ie the hospital or clinic, in cases of negligence. Additionally, all the persons engaged in the process of medical maltreatment, including fellow physicians, nurses and hospital personnel should come within the periphery of criminal responsibility in any given criminal action. These facts are a wake up call for the aggrieved to take action not only against the doctor involved, but also against the whole hospital management. It is high time to define medical negligence properly for its nature and uniqueness. To do this, opinions can be taken from physicians, public health specialists and citizen representatives. Quality medical education, training and enhancement of skills need to be ensured to upgrade the standard of our public health sector. Hospital and supporting staff must also be well equipped. Medical ethics should be given more importance in the medical curricula. Furthermore, an accountable administration in both private and government hospitals would reduce the cases of negligence. Special health courts to redress negligence issues by way of awarding compensation, or an alternative dispute resolution (ADR) system may be constituted. A separate authority could be established to oversee the quality of medical services provided, and resolve medical disputes. Hospitals are the last resort for patients and they go there nurturing blind trust in their hearts. Hence, medical professionals must be responsible for ensuring the highest standards in healthcare. The writer is an advocate and assistant professor, Department of Law, Dhaka International University.