A premature newborn namely Galiba
Hayat, declared died by a doctor, was found alive immediately before she was
being buried in Faridpur on 22 September! The concerned doctor said it is a
miracle that the baby is alive; only Allah knows it! Recently in an another incident a ward boy of
Dhaka Medical College and Hospital (DMCH) killed a patient while gave him wrong
treatment. These are glimpses of canvas which portrait the health care sector
in Bangladesh. 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. However,
Bangladesh being one of the world’s most densely populated countries has
shortage of physicians. Despite that it earns huge reputation in ensuring
maternal health, childcare and reducing infant mortality rate all over the
globe. However, the profession is a very delicate and sensitive one. Doctors
receive guilt repeatedly, than admire. However, it cannot be denied that lack
of accountability increase the incidents gradually.
Till today we do not have any separate
comprehensive enactment to deal with the matter. Albeit the Law Commission of
Bangladesh recommended to enact a legislation concerning this issues to save
lives, to raise the standard of health services and to make the physicians answerable
in 2013. Regrettably, this urgent piece of recommendation is yet to be enacted.
Normally, negligence is defined as 'failure to exercise reasonable care and
skill' in a particular situation. Medical negligence is also termed as clinical
negligence denotes negligent act or omission by the physicians, surgeons,
pharmacist, anesthesiologists, nurses, intern-doctors, medical assistants,
hospital personnel or any other medical service provider in performing his
professional duty towards the patient.
Nevertheless, negligent act in healthcare services is a
violation of basic human rights by a professional group who are actually on duty to protect when emergency
strikes and the health rights are under threat and also infringement of
the rights enshrined under the articles 15, 18, 31 and 32 of Bangladesh
Constitution. Basic
healthcare facilities are also guaranteed in the United Nations Charter.
Articles 55 and 62 relate to the provision regarding health/medical care.
Right to basic healthcare facilities are
also guaranteed in the Universal Declaration of Human Rights (UDHR).
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 is generally dealt with by the
criminal law. It is important for a medical practitioner to remember that
negligence involving the risk of injury is punishable criminally, though nobody
is actually hurt by it. The mere act of exposing a patient to the risk of
personal safety or life is enough to trigger a criminal negligence case.
Medical negligence is a breach
of legal duty to take care owed by one person to another which results in
damage being caused to that person. It is gross deviation of a medical
professional from accepted level of healthcare. However, to prove the claim,
the claimant must show that a) the alleged commission or omission must have a
causal relation in order to be qualified as negligence; b) in determining
'negligence' it is to be seen whether in a given situation a person of general
prudence would have taken a particular step in that situation c) the plaintiff
incurred an injury, loss or harm, d) the damage or harm done to the patient was
a direct result of the negligent care and e) even the state of negligence is to
be determined in the light of overall consideration i.e. hospital facilities,
assistants' and staffs' activities and behavior etc.
However, there is very limited
scope under the Penal Code, 1860 to prosecute a medical practitioner for his
negligent performance under section 304A punishment of which is highest five
years imprisonment. One may bring action under sections 314, 321-326 and
336-338 also. Nevertheless, the exemptions and immunities given for the defense
of “good faith doctrine” in sections 88 and 92 of the Penal Code narrowed the
scope for criminal action against medical malpractice in Bangladesh. In
addition, the Code of Medical Ethics, 1991 touches the matter in a triviality.
Apart from these, sec. 53 of the Consumer Rights Protection
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
expressed stated in the Act. It says 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 3 years, or with fine not exceeding
2,00,000 taka, or both. However these punishments are not adequate
because the amount of fine may be sometimes inconsistent to the loss or injury
occurred by the service providers. 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 1 year, or with fine not exceeding 50,000 taka, or both. Aside
from providing remedy 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 certain remedy regarding medical negligence.
Moreover, it not only concerned
with claim against healthcare professionals but also their employer.
Additionally, all the persons allegedly engaged in the process of medical
mistreatment or surgical operation including the surgeon, fellow physicians,
anesthesiologists, nurses and hospital personnel in any given criminal action
shall come within the periphery of the criminal responsibility of the alleged
offences committed by them in furtherance of their common intention. Hence in
the abovementioned facts are awake call to take action not only against the
doctor or the ward boy for the mal practice but also against the whole hospital
management for their failure to maintain standard.
However, it is high time to
define medical negligence properly with its nature and uniqueness. To do this
opinion can be taken from physicians, public health experts and also from
citizen representatives. Proper admission process, training and enhancement of
skills need to be ensured. Medical ethics should be studied with more
importance in the medical curricula. Furthermore, hospital and supporting
staffs must be well equipped. Nevertheless, accountable administration in the
private and government hospitals would reduce the case of negligence. The
co-relationship among doctors, pathologists and diagnostic centers needs to be
coordinated. Distinct health court to redress the negligence issue by way of
awarding compensation and alternative dispute resolution may be constituted. A
separate body may be formed to oversee the quality of medical services and
medical education which also can resolve medical dispute initially.
Hospitals are
last resort for the patient and they go their with blind trust nurturing in
their hearts. Hence, medical professionals must be accountable to ensure
highest standard in healthcare. Although we have some scattered laws to protect
the rights of ill people, but these are not efficient to handle all the
situations. Therefore, the state can offer surety of improvement to the
patients in health care delivery system addressing common good of the public
health. However, to bring all elements of clinical negligence to heel, the
government should give it highest priority and take immediate actions to build
a healthy nation.
