Medical Malpractice in Bangladesh
- Introduction
Doctors act like protector when it comes to medical emergencies and this is why we treat them as saviors next to God. Referred as the father of western medicine, Hippocrates said, “Whenever a doctor cannot do good, he must abstain from doing any harm.”[1] According to the World Medical Association Declaration of Geneva, 1948, the health of the patient is a doctor’s first consideration and it is solemnly pledged by every medical professional.[2] Deviation from such professional conduct may result in medical malpractice or medical negligence, which is spreading in an alarming rate in our country. Medical malpractice, refers to negligence arising when medical or healthcare professionals, while dispensing treatments or services, fall below the acccepted medical standard of care, breaching their duty that is owed to the patients admitted under their supervision, resulting the patient to suffer injury or even death.[3] The subject matter has been defined by various writers[4] and it may also include:
- Holding yourself out as a specialist which you are not;
- Disregarding a standard procedure of dispensing treatment, i.e. not signing the consent form;
- Presrcibing tests and medicines for personal gain and interest; and
- Many more.
After heart disease and cancer, medical malpractice is the third leading cause of death in America with at least 250,000 deaths each year.[5] In case of Bangladesh, according to a report of Ain O Salish Kendra, 504 instances of medical malpractice were listed from June 1995 to September 2008.[6] To sustain a claim of medical malpractice, the following conditions must be fulfilled:
- Duty of care is owed by the health care provider;
- Failure to fulfil such duty of care;
- Claimant suffering compensable injury; and
- Direct proximity between the injury and the conduct of the professional.[7]
In the question of duty of care, Smith LJ in the case Le Lierve v Gould[8] that a duty of care did arise when a .[9] Medical malpractice also covers, but not limited to, the lack of preparation for an operation,[10] inadequacy in diagnostic procedures[11] or failure to sterlize properly.[12]
- Causes of Medical Malpractice
Unaccountablity of healthcare professionals is the leading cause of medical malpractice. There is no all-inclusive, precise and codified legislation to avert medical malpractice. Most people are unwilling to bring action against medical practitioners and they lack the knowlegde about the legal remedies available against medical malpractices. The existing laws are complex and there are further obstacles in punishing professionals who work in private sectors. Moreover, a report of World Health Organization shows that spending on medical sector should be $34 per head, whereas it is only $5 in Bangladesh.[13] The doctor to nurse ratio is 1:0.48 but it was supposed to be 1:3.[14] Medical professionals in public sectors are often negligent about their public service and are more concerned about the income from their private chambers. All of these are the contributing factors behind the widespread medical malpractice in Bangladesh and hence, dissatisfied public are turning towards foreign countries hoping to avail better treatment.[15]
- Existing laws on medical malpractice
- National Strategies to Safeguard From Medical Malpractice
3.1.1 Constitutional Law
Our Constitution significantly governs the protected rights, inter alia, to have health and medical care. Medical malpractice is a violation of right to life guaranteed under Article 32 of the Constitution of the People’s Republic of Bangladesh. According to Part II of our Constitution, which deals with the Fundamental Principles of State Policy, the State is obligated to ensure the basic necessities of life, including medical care[16] and improve public health.[17] Although these Principles enshrined in Part II of our Constitution are not judicially enforceable,[18] [19] they cast an obligation upon the government to act on them.[20] Articles 15, 18 read along with Articles 31, 32, 44 are the constitutional remedies to medical malpractice. The constitutional right to life includes right to security of life[21] and protection of health.[22] Such rights can be enforced by either filing a writ petition before the Hon’ble High Court Division under Article 102 of the Constitution or in the form of public interest litigation.
3.1.2. Criminal Law
Under the Penal Code, 1860 (hereinafter called the PC), there are multiple remedies available for medical malpractice. Sections 304A and 336 of the PC penalise and define negligence. Provisions of the PC that deals with remedies of medical malpractice are Sections 274 (adulteration of drugs)[23], 276 (sale of drug as a different drug or preparation)[24], 284 (negligent conduct with respect to poisonous substance)[25], 304A (causing death by negligence)[26], 312 (causing miscarriage)[27], 323 (punishment for voluntarily causing hurt)[28], 325 (punishment for voluntarily causing grievous hurt)[29], 336 (act endangering life or personal safety to others)[30], 416 (cheating by personation)[31] and 418 (cheating with knowledge that wrongful loss may ensue to person whose interest the offender is bound to protect)[32].
Another remedy avaiable against medical malpractice is under the Consumer Rights Protection Act, 2009 (hereinafter called the CRP Act) which safeguards from medical malpractice if we consider the patients as consumers and the healthcare professionals as service providers. According to section 2(22) of the CRP Act, ‘service’ means, inter alia, healthcare services which are made available in exchange of price, altough free service will not fall under this provision.[38] Section 45 of the CRP Act provides punishments for not selling or delivering the promised product or service[39] and section 52 prescribes punishments for endangering life or security of the consumer.[40] The section that can be directly considered as a remedy for medical malpractice is 53 which provides punishments for any service provider causing damage to life, health or money of the consumer by negligence, carelessness or irresponsibility.[41]
3.1.3. Civil Law
When tried under civil law, the remedy available against medical malpractices is generally monetary compensation, although it may also extend to refusal of permitting the registration of the accused, removal of the name of the accused from the registrar and some other recourses. Such a civil matters can be tried by a civil court as per Section 9 of the Code of Civil Procedure, 1908.[42] According to Section 5(a) of the Code of Medical Ethics, gross negligence of dentists and medical professionals in their duties may be considered as misconduct and it is sufficient enough for removal of his/her name from the registrar.[43]
The Bangladesh Medical and Dental Council Act, 2010 penalises individuals falesly representing themselves to be a medical or dental professional[44], using any such name, description, designation, or symbol which others could reasonably consider to be true[45], prescribing medication which has yet to received government approval[46]. Bangladesh Medical and Dental Council may refuse to permit registration of individual who has been found guilty of misconduct in respect of his profession.[47]
The Director General of health services has been given supervisory powers by the Medical Practice and Private Clinics and Labs (Regulation) Ordinance, 1982. He or any officer authorised by him has the authority to inspect any private clinic, pathological laboratory, chamber of registered medical practitioner or private hospital to look for any contravention of any provision of this Ordinance.[48] These are the various remedies available for medical malpractice litigations under the domestice legal system of our country.
- International Regime on Medical Malpractice
Bangladesh is a signatory to many international treaties under which the country has obligations to protect and promote the basic rights of its citizens. .[49] These international instruments provide a guideline to the state parties towards ensuring the rights of the citizens for better medical services and other aspects. The major human rights treaties to which Bangladesh is a signatory are, the Universal Declaration of Human Rights, 1948 (hereinafter called the UDHR), the International Covenant on Economic, Social and Cultural Rights, 1966 (hereinafter called the ICESCR) and the International Covenant on Civil and Political Rights, 1966 (hereinafter called the ICCPR).
Article 3 of the UDHR states that right to life is a human right.[50] Moreover, Article 25(1) the UDHR also enunciates that everyone has the right to a standard of living adequate for the health, which includes medical care[51];
Furthermore, the ICESCR also prioritizes the right to have medical and health care, and directs the states to ensure those rights. Article 12 of The ICESCR states that the state parties to the covenant shall ensure the right to health, which includes reducing infant mortality, ensuring the healthy development of the child and create stipulations to ensure access to health care for all.[53]
According to Article 7 of The ICCPR, no person shall be subjected to any medical treatment without his free consent.[54]
- Instances of Medical Malpractice in Bangladesh
Due to the complexity of the law, unwillingness of the people to institute legal actions and the lack of awareness, most instances of medical malpractice never reach the premises of the Court. They mostly remain as unreported imputations and end up in violence and vandalism. In a reported judgement,. Justice Jahangir Hossain, directed the Labaid Hospital to pay compensation to the wife of Mridul Chakrabarty who died because of negligence and delayed treatment on the part of the hospital. In 2016, a bus helper named Arafat was fatally injured in a road accident and was refused admission in three hospitals as he was an emergency patient. The Hon’ble High Court Division called upon the respondents, by a Rule Nisi, to show cause as to why such failure to provide emergency medical services should not be declared to be unlawful and violative of the fundamental rights guaranteed under Articles 27, 31 and 32 of our Consituttion.[56] In another case, Hon’ble High Court Division summoned Dr. Ashis Kumar of Universal Medical College and Hospital to explain the allegation that the hospital continued treatment of a deceased patient to increase the bill.
- Recommendations
The inflated rate of medical malpractice is imposing tension in the minds of both, the government and also people. However, there are still rays of hope as the Hon’ble High Court Division is playing active and positive role in remedying the victims of such misconducts. Preventive measures and further improvement of the overall situation can be suggested as follows:
- The term ‘medical profession’ is not expressly included in section 2 of the CRP Act.
However, India included this term in section 2(1)(o) of the Consumer Rights Protection Act, 1986.[58] This term should be included in our CRP Act so that victims can go to the consumer court and seek effective remedy.
- In our country, the amount of compensation depends solely in the discretion of the
Courts as there is no guiding principles. In United Kingdom, there are instruments such as Odgen tables and Judicial College Guidelines to calculate the amount of compensation for various degrees of injuries. Such instruments can be adopted in our country to ascertain the amount of compensation to be paid.[59]
- In India, medical malpractice is entertained both by the Court and by quasi-judicial
bodies like Maharastra Medical Council.[60] Such quasi-judicial bodies with special powers can also be established in our country to ensure proper regulation and justice.
- There is no codified legislation on medical negligence. The existing laws on
Negligence are general and dispersed. The remedies exist in the form of alternate pathways which are too complex for common people to understand. In the UK, instances of medical malpractice are tried under a separate Act called the NHS Redress Act, 2006.[61] [62] We are also in need of the codification of a legislation exclusively to deal with medical malpractice.
- A central statute on tort law should be enacted for efficacious and speedy
Compensation process. Punishment under criminal law might not even benefit the injured, but proper compensation under tort law will be really helpful.[63]
- Hospitals should be vicariously liable for the works of the healthcare professionals.
- Conclusion
At this point, both preventive and curative measures to fight against medical malpractice have become necessary. Dispersed remedies under various laws and lack of awareness are the biggest setbacks in dealing with this issue. As the Roman lawyer Marcus Cicero once said, “The more laws, the less justice”, instead of offering generalized remedies under multiple legislations, a specialized statute should be enacted and strictly implemented to safeguard our rights to life and health from the vice of medical malpractice.
[1] Khandakar Kohinur Akter, ‘A Contextual Analysis of the Medical Negligence in Bangladesh: Laws and Practices’ (2013) 4(67) The Northern University Journal of Law.
[2] World Medical Association Declaration of Geneva (Adopted by the 2nd General Assembly of the World Medical Association on September 1948)
[3] Md. Rafiqul Islam Hossaini, ‘Medical Negligence and its Constitutional Protections in Bangladesh’ (2016) Bangladesh Law Digest <http://bdlawdigest.org/constitutional-protection-and-claims-for-medical-negligence-in-bangladesh.html> accessed 11 October 2019.
[4] Faria Ahmad, ‘Medical Negligence and Duty of Care’ The Daily Star (Dhaka, 24 July 2018) <https://www.thedailystar.net/law-our-rights/medical-negligence-and-duty-care-1609813> accessed 10 October 2019; Raisul Islam Sourav, ‘Medical Negligence’ The Daily Star (Dhaka, 10 January 2017) <https://www.thedailystar.net/law-our-rights/medical-negligence-1342753> accessed 10 October 2019.
[5] Tasmiah Nuhiya Ahmed, ‘Legal Remedy to Medical Negligence’ New Age (Dhaka, 13 August 2018) <http://www.newagebd.net/article/48258/legal-remedy-to-medical-negligence> accessed 10 October 2019.
[6] ibid.
[7] Md. Rafiqul Islam Hossaini, ‘Medical Negligence and its Constitutional Protections in Bangladesh’ (2016) Bangladesh Law Digest <http://bdlawdigest.org/constitutional-protection-and-claims-for-medical-negligence-in-bangladesh.html> accessed 11 October 2019.
[8] Le Lierve v. Gould, [1898] 1 Q.B. 491.
[9] Md. Zahidul Islam, ‘Medical Negligence in Malaysia and Bangladesh: A Comparative Study’ (2013) 14(3) IOSR Journal of Humanities and Social Science 82 <https://www.researchgate.net/publication/330737963_Medical_Negligence_in_Malaysia_and_Bangladesh_A_comparative_study> accessed 10 October 2019.
[10] Dr. Ravishankar v. Jery K. Thomas and Anr, II (2006) CPJ 138 (NC).
[11] Dr, Kunal Saha v. Dr. Sukumar Mukherjee and Ors., III (2006) CPJ 142 (NC).
[12] Pravat Kumar Mukherjee v. Ruby General Hospital and Ors., II (2005) CPJ 35 (NC).
[13] A Study on Medical Negligence and Fraudulent Practice in Private Clinics: Legal Status and Bangladesh Perspective, Ain O Salish Kendra (2013) <http://www.askbd.org/ask/wp-content/uploads/2014/02/Report-Medical-Negligence.pdf> accessed 10 October 2019.
[14] ibid.
[15] Md. Rafiqul Islam Hossaini, ‘Medical Negligence in Bangladesh: Criminal, Civil and Constitutional Remedies’ (2017) 59(6) International Journal of Law and Management 1109.
[16] The Constitution of People’s Republic of Bangladesh, Adopted November 4, 1972, art 15(a).
[17] ibid, art 18(1).
[18] ibid, art 8(2).
[19] Kudrat-E-Elahi v. Bangladesh, (1992) 44 DLR .
[20] Wahab v. Secretary, Ministry of Land, (1996) 1 MLR 338.
[21] Bangladesh Jatiyo Mahila Ainjibi Samity v. Ministry of Home Affairs, (2008) BLD 580.
[22] Dr. Mohiuddin Farooque v. Bangladesh, (1996) 48 DLR 438.
[23] The Penal Code, 1860, s 274.
[24] ibid, s 276.
[25] ibid, s 284.
[26] ibid, s 304A.
[27] ibid, s 312.
[28] ibid, s 323.
[29] ibid, s 325.
[30] ibid, s 336.
[31] ibid, s 416.
[32] ibid, s 418.
[33] Momin Malitha v. State, (1988) 41 DLR 37.
[34] Andrews v. Director of Public Prosecution, (1937) 2All ER 552.
[35] Municipal Committee, Jullundur City v. Shri Ramesh Saggi, (1970) AIR Punj 137.
[36] Dr. Wagh v. State of Maharashtra, Criminal Appeal No. 607 of 1962.
[37] Alexander McCall Smith, ‘Criminal or Merely Human?: The Prosecution of Negligent Doctors’ (1995) 12(1) Journal of Contemporary Health Law and Policy (1985 – 2015).
[38] The Consumer Rights Protection Act, 2009, s 2(22).
[39] ibid, s 45.
[40] ibid, s 52.
[41] ibid, s 53.
[42] The Code of Civil Procedure, 1908, s 9.
[43] The Code of Medical Ethics, s 5(a).
[44] The Bangladesh Medical and Dental Council Act, 2010, s 28.
[45] ibid, s 29.
[46] ibid, s 30.
[47] ibid, s 23.
[48] The Medical Practice and Private Clinics and Labs (Regulation) Ordinance, 1982, s 11.
[49] Human Rights Committee (HRC), General Comment No. 36 CCPR/C/GC/36 Article 6: Right to Life, 3 September 2019.
[50] Universal Declaration of Human Rights (adopted 10 December 1948) UNGA Res 217 A(III) (UDHR), art 3.
[51] ibid, art 25(1).
[52] ibid, art 25(2).
[53] International Covenant on Economic, Social and Cultural Rights (adopted 16 December 1966) UNGA A/RES/2200 (ICESR), art 12.
[54] International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171 (ICCPR), art. 7.
[55] Human Rights and Peace for Bangladesh (HRPB) v. The Lab Aid Hospital, Writ Petition No. 7574 of 2011.
[56] Syed Saifuddin Kamal v. Ministry of Health, Writ Petition No. 1509 of 2016.
[57] Mizanur Rahman, ‘HC Summons Universal Medical MD over Malpractice Allegations’ Dhaka Tribune (Dhaka, 2 July 2019) <https://www.dhakatribune.com/bangladesh/court/2019/07/02/hc-summons-universal-medical-md-over-malpractice-allegations> accessed 10 October 2019.
[58] Indian Medical Association v. VP Shantha, (1996) AIR 550.
[59] Faria Ahmad, ‘Medical Negligence and Duty of Care’ The Daily Star (Dhaka, 24 July 2018) <https://www.thedailystar.net/law-our-rights/medical-negligence-and-duty-care-1609813> accessed 10 October 2019.
[60] ibid.
[61] NHS Redress Act, 2006.
[62] Khandakar Kohinur Akter, ‘A Contextual Analysis of the Medical Negligence in Bangladesh: Laws and Practices’ (2013) 4 The Northern University Journal of Law 67.
[63] S M Hasib Mahmud, ‘Platform for Tort Law’ The Daily Star (Dhaka, 6 February 2018) <https://www.thedailystar.net/law-our-rights/law-vision/platform-tort-law-1530388> accessed 10 October 2019.
[64] A Study on Medical Negligence and Fraudulent Practice in Private Clinics: Legal Status and Bangladesh Perspective, Ain O Salish Kendra (2013) <http://www.askbd.org/ask/wp-content/uploads/2014/02/Report-Medical-Negligence.pdf> accessed 10 October 2019.
[65] Khandakar Kohinur Akter, ‘A Contextual Analysis of the Medical Negligence in Bangladesh: Laws and Practices’ (2013) 4 The Northern University Journal of Law 67.
For criminal offences, mens rea or guilty mind is an essential requirement, which is needed to be proved beyond a reasonable doubt. Even though negligence is a component of a tortious liability which is assessed objectively on the balance of probabilities, setting a criminal standard of proof here narrows its applicability. In the case of Momin Malitha[1] 41 DLR 37, the prosecution failed to establish the wrongful intention of the accused due to this high standard of proof .