Medical Negligence: Awake Call for the Concerned to Prevent Squander of Lives

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. 

Published in the Post Logue page (P. 7) of the Daily Sun on 26.10.2016