How to Get Relief against Medical Malpractice

Medical malpractice is not only a domestic issue rather a global concern all over the world. Countless patients are suffering from some sorts of medical negligence everyday in any corner of the country. But it draws media’s attention only when someone died or something bigger happen for mal treatment. Presently, there are several inadequate means to get relief against clinical negligence i.e. departmental action, cancellation of registration, bringing civil and criminal cases, filing complaint under the consumer rights and judicial review.

However, the existing ways to get remedy are not well circulated. Some legal procedures are not only complex but also time consuming, labourious, pricy and often it is tough to get expected result due to many factors including biased or improper investigation, lack of technology and technical knowledge, stringent rule of evidence etc. Therefore, victims or their families are reluctant to file formal allegation against medical practitioner rather they often involved with unexpected conflicts with them to mitigate their sudden excitements after happening of an unhappy situation.

However, one can file complaint in the form of an application on white paper addressing to the registrar of the Bangladesh Medical and Dental Council (BMDC) regarding any grievance caused by any mal treatment of a doctor, dentist or medical assistant. After getting that, the BMDC will form a committee to enquire the matter. If the accusation is proved before them then they can take action against that accused from warning to cancellation of registration depending on the gravity of wrong under the Medical and Dental Council Act, 2010 and the Code of Medical ethics adopted by the BMDC.

Nevertheless, the council is neither entitled to give any compensation nor empowered to take punitive action. After the formation of the council to till 2010 there was only 47 complaints filed in the BMDC and among them registration was cancelled permanently in one case only and in another one, registration was suspended temporarily. The rest of the cases the council merely warned or criticized the doctors or dentists. However, the BMDC’s website doesn’t have any option to file complaint through online. The enquiry is conducted by fellow physicians which questioned the neutrality and takes lengthy time. The council’s website doesn’t have any mechanism to file the complaint through online. Further, they have no power to deal with the matter relating to unregistered doctor. It is evident that the system needs to revisit. Apart from BMDC, the concerned appointing authority of the alleged physician may take departmental action like suspension from job against the accused.

Albeit there is no express provision in law for tortuous claim to get compensation for medical negligence but one can surely file civil suit for damages. However, compensation for mental trauma is yet to be recognized by our law. Complicated and arduous civil litigation system, requirement of advalorem court fee, lack of technical knowledge of lawyers’ and judges’, absence of clear law, stringent provision of producing evidence etc. are refraining complainant from litigating this kind of suit in civil courts.

The scope for criminal action for medical negligence is very narrow as well. The Penal Code (PC), 1860 only suggests to prosecute a medical practitioner for his negligent performance under section 304A; punishment of which is highest five years imprisonment or fine or with both. Victim or his near one may bring action under sections 314, 321-326 and 336-338 also. Nevertheless, the PC requires presence of strong mental element (mens rea) to prove the guilt while the context of a physician presupposes “good faith” as s/he tries to cure the patient. Hence, exemptions and immunities given for the defense of “good faith doctrine” in sections 88 and 92 of the PC thinned the scope for criminal action against clinical malpractice in Bangladesh.

Apart from these, Ss. 52 & 53 of the Consumer Rights Protection (CRP) Act, 2009 launches another door for the victim to claim compensation for medical negligence. Because a medical patient is considered as a consumer and the medical institutions or professionals are as service provider under section 2, though it is not expressly stated in the Act. Hence, one can file complaint directly to the Directorate of National Consumer Rights Protection (DNCRP) over phone call to 01777 753 668 or through email to nccc@dncrp.gov.bd or through post to the Director General, DNCRP, 1. Karwan Bazar (TCB Building-7^th floor), Dhaka-1215. However, the appellant will get 25% of fined money if s/he wins the case.

The CRP Act also provides forum for parallel civil jurisdiction for compensation which also not barred to bring criminal action simultaneously. The court of the Joint District Judge of whose local jurisdiction the matter has arisen is competent to try the matter and an appeal can lie to the High Court Division. However, where there is no other equally efficacious remedy obtainable under the domestic law, judicial review can also offer prospective collective remedy or open the sealed doors of procedural relief. Judicial review, in the form of Public Interest Litigation or in other cases, can provide remedy in this case.

Physicians are last resort for any physically vulnerable people. Hence, medical professionals must be accountable to ensure highest standard in healthcare. To guarantee this, enactment of a specialized legislation particularly deal with the matter and formation of an independent regulatory body are two crying needs to ensure good governance in health care sector in Bangladesh.

Published in the Law & Our Rights page of the Daily Star on 25 July 2017