Medical negligence
Medical negligence - also termed as clinical negligence which 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.
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. Clinical 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 establish 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.
There is very limited scope under the Penal Code (PC), 1860 to prosecute a medical practitioner for his negligent performance. Nevertheless, the exemptions and immunities given for the defense of “good faith doctrine” 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.
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.
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 specialists and also from citizen representatives. Standard medical education, training and enhancement of skills need to be ensured to upgrade the standard of public health sector. 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 both private and government hospitals would reduce the case of negligence.
THE WRITER IS AN ASSISTANT PROFESSOR OF LAW, DHAKA INTERNATIONAL UNIVERSITY.
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