Negligence in the medical sector is a glaring issue that is slowly becoming rampant and ubiquitous in our country. Patients at large seek the most qualified doctors because, as most believe, only a distinguished doctor with a plethora of degrees and experience at their disposal can render quality medical aid to the patients. But although the influx of medical colleges, hospitals, and clinics is making more doctors, quantity doesn’t always ensure quality.
Medical negligence is a tortious act or form of civil wrong that stems from the callous act of a medical professional who completely disregards the duty of care that they are expected to uphold. Such acts fall under professional misconduct and malpractice on the part of doctors and medical professionals, which causes significant suffering to patient’s health and also violates their human rights to health care.
Recent media coverage suggests that the situation of medical negligence is rising steeply. For instance, medical negligence by one of the doctors employed by Central Hospital caused the tragic demise of a woman and her unborn child. The sudden passing of a Gulf Air Pilot in December 2022 due to cardiac arrest while he was admitted at United Hospital also resonates with this issue.
These medical errors are the accumulation of some deliberate and non-deliberate medical conducts such as prolonged emergency patient care, surgical errors, prescription and administration of inaccurate medications, and surgical errors amounting to insurmountable pain and suffering for the patients, all of which foreseeably lead to the patient’s imminent death or decline in health. The horror stories of the victims of medical negligence emphasize the need for a comprehensive legal framework to resolve this issue and make sure that the victims of these incidents receive justice through compensatory and penal remedies.
Doctors’ impunity
A study by Ain o Salish Kendro (ASK) in 2013, outlines medical negligence from a legal and social perspective, in order to succinctly triangulate the legal implications for medical negligence and how to effectively provide legal aid for such incidents and allegations.
According to the study, the damages that the victims of medical negligence will be entitled to receive depend on certain factors such as: Additional medical costs accruing due to a negligent act, loss of any working organ, or loss sustained due to absence from work.
ASK has done extensive assessments of the publications, reports, laws, policies, and independent inquiries, which hint that the primary cause of medical negligence in Bangladesh is a lack of accountability and an effective monitoring framework.
The above research article mentioned some noteworthy examples of gross medical negligence, for instance, removing a functional organ instead of a dysfunctional one. Such gross misconduct on the part of medical professionals highlights the lack of supervision by the monitoring authority.
This scarcity of supervision by the monitoring authority has proliferated a culture of impunity among medical professionals since most of the allegations of medical negligence frequently go unpunished. The lack of a prompt legal framework for penalizing recalcitrant medical professionals and their subsequent indemnity from various negligent actions is accumulating distrust among the medical aid seekers in our country. Even if the victims find legal redress, the result of such relief is often disconcerting compared to the gravity of the negligent actions conducted by the impugned medical experts.
By delving into the contemporary redress facilities the aggrieved may avail in case of medical negligence, we can see the lack of enforcement. When a patient encounters medical negligence, there are a couple of safeguards in place ensuring remedial measures through the criminal justice system. Primarily, the Penal Code of 1860 offers numerous sections dedicated to combating negligent actions by the public, which are punishable by various degrees of penalties.
For instance, (u/s 274 of the Code) penalties can be imposed upon a person for conducting drug adulteration, negligently causing death (u/s 304A), causing miscarriage (u/s 312 of the Code), or endangering the life or safety of the patient (u/s 336). These categorizations of the offenses are all punishable by incarceration ranging from six months to seven years, including the imposition of monetary penalties like a fine.
All in good faith
But medical professionals are indemnified against such allegations because of the existence of personal defense clauses in the code, like Section 88. Section 88 relinquishes the offender from criminal responsibility if the defendant or the offender can prove good faith and unintentional actions. Resorting to this section, the perpetrator can easily absolve criminal responsibility by eradicating mens rea (the intention to commit crime) even if the actus reus (the physical commission of the crime) exists.
Section 88 also affords another layer of protection to the perpetrator, which is a waiver of tortious liability through the patient’s consent. That’s why all health care providers, such as hospitals, medical centres, colleges, and clinics, take signatures from the patient or their relatives whenever they are admitted to those institutions.
Through their signatures, the patients acknowledge or give express consent that the medical professionals won’t be held liable and bestow on the doctors enough autonomy to do everything under the disguise of good faith.
Moreover, the application of Section 92 along with Section 88 also provides another layer of armour for negligent medical caregivers. Section 92 grants medical professionals de-facto autonomy to conduct medical treatments in good faith when the patient lacks the ability to provide consent or the absence of a legal guardian compels the doctor to apply such autonomy.
The Consumers Protection Act 2009 is another piece of legislation that consists of interesting safeguard mechanisms against medical negligence. This act presumes that patients are consumers and medical facilities are service providers. Section 53 of the act enshrines that in case of death or serious injury caused by negligent acts of the service providers (doctors), the consumers (patients) will be entitled to file a criminal case against the negligent actors, and imprisonment of up to three years and a fine of up to Tk2 lakhs will be imposed upon them.
However, criminal action can only be initiated if the consumer files a complaint against the negligent actor within 30 days of the negligent act. Moreover, the executive magistrate can only take action against negligent actors within 90 days of filing the charge sheet with the IO designated to investigate the complaint.
Backing the patients
Aside from criminal relief, medical negligence can be redressed through civil suits and the application of some civil legislation. For instance, the “Contract Act 1872” can be cited here. Medical care can be termed as a contractual arrangement between the doctor and the patient, so any negligence on the part of the doctor grants the patient the right to sue the doctor for breaching the contract agreements. Moreover, patients can also petition the civil court for a temporary or permanent injunction against the medical professional alleged to have committed medical negligence under the Specific Relief Act 1877.
The application of the Bangladesh Medical and Dental Council Act 2010 grants the BMDC council discretionary power to withdraw the names of the doctors who conduct professional negligence during medical practices from the national register. Such actions by the council are considered disciplinary actions enforced by government authorities against the doctors alleged to have acted negligently.
Aside from civil, criminal, and governmental remedies, our constitution also provides protection against medical negligence. Since medical negligence violates the right to life as a fundamental right (under Article 32), it can be successfully safeguarded and enforced under Article 44.
Articles 15 and 18 also allow the state to ensure proper healthcare facilities for the public, and if the medical authorities act in contravention of it, will entitle the victims to file a writ petition under Article 102 of the Constitution in the Supreme Court of Bangladesh. So constitutional remedies also grant the victims the right to petition before the apex judiciary.
The government, being parties to major international treaties and charters, eg, ICESCR 1966, UDHR, CEDAW, and CRC 1989, also has an obligation erga omnes to ensure the right to proper healthcare and prevent willful negligence by medical experts. Judicial activism and intervention of apex judiciary is commendable in effacing medical negligence, as HCD has from time to time given suo moto rulings and directions to the governmental and medical institutions for taking prompt action against wayward medical experts.
In conclusion, we can comprehend that medical experts are the heart of medical aid in a society. They are the harbinger of humanity. But the willful insubordination and continuous acts of negligence and malpractice are ruining lives and generating unbearable pain for the masses. So medical negligence, although a result of human error, needs to be minimized.
In order to attain this objective, some crucial reforms in the medical sector and medical legislative frameworks need to be adopted. For starters, a stringent law aimed at vilifying and penalizing medical negligence and malpractice needs to be promulgated.
The BMDC must liaison with the Ministry of Health and Family Welfare Division to adopt clear-cut guidelines and codes of conduct for medical professionals. Policy advocacy, NGO mandated awareness raising, capacity building, curriculum revision, and educating the young MBBS doctors, trainee nurses, and caregivers are all possible steps to better suppress the act of medical negligence.
A co-ordinated approach by both the government, administration, and private sector can mitigate this glaring issue of medical negligence and ensure the safety and public convenience of our medical sector.
Samiur Rahman is a lecturer of law at Bangladesh University (BU), Department of Law.
