A seeming weapon? | The Daily Star
12:00 AM, December 06, 2016 / LAST MODIFIED: 12:00 AM, December 06, 2016

CLINICAL NEGLIGENCE

A seeming weapon?

Death of patients caused by allegedly negligent treatment by doctors and hospitals has become common for quite some time in Bangladesh. This remains a very sensitive area as the medical profession is highly valued in our society. Nevertheless, if the allegations are true, wrong treatment procedure adopted by some incompetent medical professionals are causing sufferings, and even death, of the patients. As our Constitution ensures equality of all citizens in the eye of law, time has come to look into the related provisions of laws that regulate this specific area.

Section 304A of the Penal Code 1860 states that whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both.

The problem is “negligence” is not defined in the Penal Code, the same being a tortuous concept. Unfortunately, the law of tort is significantly underdeveloped in our legal system. The problem thus remains a live one. However, tackling this issue is not difficult both in theory and in practice as negligence has largely been defined in many jurisdictions including that of the UK and India. Hence the meaning of negligence is quite settled with precision and that substance can easily be adopted in our legal system without any debate.

Three main things become important in these clinical negligence cases. Firstly, the medical professionals must owe a duty towards the patient. This is not at all difficult the relationship being a contractual one between the doctors and the patients as fees and charges for treatment are there. This is clearly a contractual duty of care. Secondly, that duty must be breached by the doctors. This is a matter to be proved during the trial. It would have to be shown by the patient that the practice adopted by the doctor is not one commonly adopted by a professional/competent peer doctor. This aspect of negligence is a bit complex and requires elaborate understanding for proper disposal of clinical negligence cases. Thirdly, the death of the patient must have been caused by the supposed negligent treatment. This aspect is more complex arguably requiring expert witnesses to be called during the trial, if the case documents are not sufficient.

Another problem regarding section 304A is the mental state of the accused. Our criminal law mostly requires intention on the part of the accused while committing a crime. Section 304A is clearly dealing with negligent act and thus intention would not be present here that being obvious. The legal system of the UK makes it clear that crime can be committed by different mental states like intention, recklessness, negligence, etc. Therefore negligence is a form of mental state sufficient to impose criminal responsibility, even in the absence of intention. If the court under a section 304A charge finds negligent act, from that instance alone the court can infer a negligent mental state while determining the issue of guilty act and guilty mind simultaneously colliding.

At the same time, lawmakers should address the issue with sufficient clarification. As outlined above, section 304A does have some drawbacks. In clinical negligence cases, various aspects of the Code of Criminal Procedure 1898 and the Evidence Act 1872 need to be revised after consulting the legal experts. One major aspect that concerns the most is the power of police to investigate in such cases whereby the same requires vast medical knowledge in the concerned field. A special law dealing with the aspect of clinical negligence would be more appropriate. However, before such enactment, if any, legal and medical experts working in the field should properly be consulted. 

This area of law has got a vast civil dimension having its base primarily on tort law. The victim's family may file compensation suit in civil courts against the defendants liable for negligent treatment.

Developing compensation culture is important as that would do proper justice for the family members who might have spent huge money behind a supposed negligent treatment. Again if the deceased victim is the only wage earner of the family, paying off damages to the family by the defendants becomes important from the tort law point of view. However, ascertaining quantum of damages in clinical negligence cases might be a difficult task. Guidelines from case laws from the UK and Indian jurisdictions might be of great help in this regard. From my own experiences of conducting some gruesome clinical negligence cases, I am of the view that raising awareness should be the primary goal in this area. Apart from working on a solid legal structure, raising social awareness among all the people is equally important.         

 

The writer is an Advocate, Supreme Court of Bangladesh.

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