Medical negligence and duty of care

With the front pages of newspapers increasingly reporting incidents of deaths and injuries arising out of road traffic and workplace accidents, dialogues on the urgent need for a dynamic tort regime have taken centre-stage. Concurrent to this is the social media outcry about wrongful treatment and denial of medical care to patients, highlighting the need of the hour – remedy under the tort law for medical malpractice.

Claims for medical malpractice, that is, clinical or medical negligence, arise when doctors, healthcare service providers, and hospitals owe a duty of care to individuals admitted under their care, and fail to fulfill such duty, causing the patient to suffer pain and loss of amenity.

We are all privy to the various instances of medical negligence – careless medical staff and practitioners, denial or delays in admission of patients, and substandard and wrong medical treatment. However, what continues to be alarming is the absolute lack of accountability of healthcare providers and doctors in public and private medical care establishments.

Under the current legal framework, no codified law exists on medical negligence, and in the absence of a developed tort regime, laws on negligence are dispersed and general. Sections 304A and 336 of the Penal Code 1860 penalise and define negligence as an act which is “so rash or negligent as to endanger human life or the personal safety of others”. The Bangladesh Medical and Dental Council Act 2010 penalises individuals who (i) falsely represent themselves to be medical or dental practitioners (section 28), (ii) use any such name, designation, description or symbol which others could reasonably consider to be true (section 29) and (iii) prescribe medication which has not received government approval (section 30). Sections 52 and 53 of the Consumer Protection Act 2009 also penalise negligence, and significantly empower the Director-General of the Directorate for Consumer Rights Protection to take measures against 'anti-consumer activities'.

Despite these legal provisions – although dispersed – at disposal to secure our ends of justice, our legal system is yet to develop a jurisprudence permitting a route to redress for negligently treated citizens at the hands ofhealthcare service providers. However, in recent years Courts have been proactive in awarding monetary compensation to victims in glaring cases of medical negligence. In 2011, a ruling by Mr. Justice AHM Shamsuddin Chowdhury Manik and Mr. Justice Jahangir Hossain directed Labaid Hospital to pay the wife of Mridul Kanti Chakrabarty, a Dhaka University professor, who died owing to delayed medical treatment and alleged negligence on the part of the hospital. In 2017, the Suo Moto ruling by Madam Justice Salma Masud Chowdhury and Mr. Justice AKM Zahirul Haque directed respondents to pay the victim Tk. 9 lakhs in compensation for falsely representing himself as a certified doctor and performing a surgery on the victim, leaving pieces of gauge inside her stomach, thereby causing her endless suffering and additional medical expenses.

However, in jurisdictions such as the United Kingdom, established bases exist for calculations of claims arising out of personal injury and medical negligence. Instruments such as the Judicial College Guidelines (JCG) and Ogden tables standardise the level of compensation fordifferent degrees of injury to individual parts of the body, and take into account other factors, such as the loss of income and follow-up expensesof victims in recovering from the consequences of the negligent act. In India, despite the laws being similarly dispersed, medical negligence is regularly entertained not only by the Court, but also the Maharashtra Medical Council (MMC), a quasi-judicial body with significant powers.

Although recent awards in Bangladesh signify a positive move in the direction of establishing accountability of healthcare service providers, Courts still shy away from giving detailed directions and guidelines on negligence, determination of compensation and other non-pecuniary punishment. Further, cases of negligence are entertained solely under the writ jurisdiction, and only in glaring cases of negligence. Instances where such petitions are allowed and heard, the amount of compensation is based on the sole discretion of Courts, in the absence of guiding principles similar to that in the UK. This signifies the need to strengthen the tort regime in the country in the hopes of reducing devastating front page stories of lost lives.

Faria Ahmad

Barrister-at-Law and Associate, Akhtar Imam and Associates