Medical Negligence Law in Bangladesh

Introduction

There is no specific and all-inclusive legislation yet to prevent medical negligence. Medical negligence is a violation of right to health by professionals who are essentially on duty to protect when emergency strikes and the health rights are under threat.?Medical negligence occurs when the treatment provided by a health service falls bellow an acceptable standard. Medicine is a complicated practice and health service providers are not expected to be perfect. Medical treatment in sometimes become ineffective and injuries can sometimes result. But that does not necessarily mean that there has been any negligence. Negligent treatment is that which goes further than being a simple reasonable mistake or error.

What is Medical Negligence?

Medical negligence or malpractice refers to an act or omission done by the professional health care providers especially by a physician, dentist, nurse, medical assistant, pharmacist or any other medical service provider which moves downward and below to the accepted standard of practice, which cause the patient to suffer injury or even death.

Essentials of a Suit for Medical Negligence

A person who alleges negligent medical negligence must prove four elements-

(1) A duty of care was owed by the physician

(2) The physician violated the applicable standard of care

(3) The person suffered a compensable injury and

(4) The injury was caused in fact and proximately caused by the inferior conduct.

The burden of proving these elements is on the plaintiff in a malpractice lawsuit.

Medical Negligence and Misconduct

Some common negligence that occurs in medical or heath sectors are in the following-

Surgical Errors or Negligence during Surgery – Patients and their relatives often complain about medical negligence in the operation theatre. Negligence during surgery can cause serious damage and even death within minutes.

Pregnancy and Gynecological Injuries – Gynecological care is given to women during pregnancy. In this case, mistakes are made during treatment due to negligence which results in health problems for women and unborn child for life.

Miscarriages during childbirth – Miscarriages during childbirth can lead to lifelong disability and pain in the body. The child’s seriousness for a mistake can be a major mental problem including physical or mental disability and financial pain for relatives.

Wrong medicine – Here a doctor prescribes the wrong medicine or dose for the patient or a nurse misreads the doctor’s report and administers the wrong medicine or dose. As a result, the patient has to face serious wounded.

Infection – In a hospital or clinic medical equipment used in surgery does not disinfect properly. Infections spread through patient care are not properly cleaned and hygienic during dressing.

Delayed Diagnosis Failure or Misdiagnosis – Physicians most likely misdiagnose their patients due to a loss of attention incompetence or a lack of suitable equipment, resulting in patients being denied proper care.

Lack of care by nurses – Nurses will provide the necessary care to patients to ensure that patients are well. Nurses will ensure that the patient’s health is monitored during treatment and recovery.

Statutory Provisions

Though there is no certain and specific laws for medical malpractice but there are some statutory provisions for the protection of our health services. The provisions and related laws are-

·????????The Constitution of Bangladesh

·????????The Penal Code, 1860

·????????The Bangladesh Medical and Dental Council Act, 2010

·????????The Medical Practice and Private Clinics and Laboratories (Regulation) Ordinance, 1982

·????????The Consumer Protection Act, 2009

·????????The Civil Liability or Breach of Contract

·????????The Tort Law

?Legal Advice under the Constitution

In Bangladesh, the right to health and medical care is guaranteed in the Constitution as fundamental necessity of every citizen. There are some Articles in its Constitution where the right to health and medical care is ensured.

In the Constitution of Bangladesh, the right to health and medical care is not directly recognized as fundamental right of a citizen but it can be recognized as a branch of right to life which is guaranteed as fundamental right of a citizen under Article 32 of the Constitution. The Preamble of Constitution can be referred as strong evidence where it is the fundamental aim of a state to keep the fundamental human rights intake.

According to the Preamble of our Constitution, “… it shall be a fundamental aim of the State to realize through the democratic process a socialist society, free from exploitation a society in which the rule of law, fundamental human rights and freedom, equality and justice, political, economic and social, will be secured for all citizens; …”

However, the “right to health and medical care” is also recognized as the fundamental principle of state policy under Article 15 of the Constitution. Article 15 of the Constitution says that, “It shall be a fundamental responsibility of the state to attain, through planned economic growth, a constant increase of productive forces and a steady improvement in the material and cultural standard of living of the people with a view to securing to its citizens 1) the provision of the basic necessities of life, including food, clothing, shelter, education and medical care.”

Article 18 of the Constitution further provides, “The state shall regard the raising of the level of nutrition and improvement of public health as moving its primary duties, and in particular shall adopt effective measures to prevent the consumption, except for medical purposes or for such other purposes as may be prescribed by law, of alcohol and other intoxication drinks and of drugs which are injurious to health”

Furthermore, Article 21 of our Constitution provides some duties of every citizen and for persons in public service, as it states, “(1) It is the duty of every citizen to observe the Constitution and the laws, to maintain discipline, to perform public duties and to protect public property. (2) Every person in the service of the Republic has a duty to strive at all time to serve the people.”?

?Legal Advice under the Penal Code

Criminal charges can be filed against doctors for offenses punishable under Sections 336, 337, and 338 of the Penal Code. There are allegations of negligence in medical services by the physician which results in loss of life or death of the patient. But Sections 80 and 88 of the Penal Code protect doctors accused of criminal liability.

Legal Advice under the Bangladesh Medical and Dental Council Act, 2010

There are certain codes of conduct prescribed by the authorized authority under Section 5 (22) of this Act. If the registered doctor violates it then the registration or license as a practitioner can be invalidated under Section 23 of the Bangladesh Medical and Dental Council (BMDC).

Legal Advice under the Medical Practice and Private Clinics and Laboratories (Control) Ordinance, 1982

Section 9 of the Act stipulates that registered medical practitioners and nurses must be present in private clinics. Otherwise, the authorities will take action against the owner of the private clinic, which has been mentioned in Sections 13 and 14.

Legal Advice under the Consumer Protection Act, 2009

The patient pays the hospital or clinic for health services as a consumer. Thus, hospitals and clinics are fully responsible for maintenance this right. Hospitals, clinic authorities or owners will also be liable under this Act for any kind of negligence or misconduct in this right under Section 53 of this Act. Hospital or clinic authority shall be liable as a criminal offense for breach and violation of the patient’s health services. The offender will be sentenced to 3 years imprisonment or a fine both and the victim under Section 66 is also entitled to seek civil remedy from that authority under this Act.

Under the Consumer Protection Act 2009, if the hospital or clinic violates any rights of the patient or violates any law and does not protect the patient’s health care then the owner or the authority will be liable for criminal punishment or civil remedies under this Act.

Under Civil Liability or Breach of Contract

The service of treatment can be treated as a contract so if there was any negligence on part of the doctor that may be treated as a breach of contract, therefore, aggrieved parties are entitled to claim one or more remedies against the opposite party or doctor as per Contract Act 1872. Furthermore, the aggrieved patient may also seek a temporary and permanent injunction under the Specific Relief Act, 1877 as against health professionals violating contractual and service terms.

Under Tort Law

Under Tort law, 4 elements have to prove negligence. Elements are-

·????????Duty of care

·????????Breach of duty

·????????Causation

·????????Harm/ Damage/ Injury

The defendant will be held liable under Tort law if the plaintiff can prove these four elements. As a result, the owner of a private hospital or clinic, as well as a registered professional doctor, will be liable for negligence or misconduct in their profession under this tort law.

Conclusion

The doctor and patient relationships are made on the foundation of faith. One mistake of this profession can be the reason for the end one life or can make damage which is uncover able. Law and its practice are needed not for all the cases but only for those cases in which the patients are the victim of medical negligence.