Negligence in medical sector and the legal remedies

In Bangladesh, medical negligence is a day-to-day instance now from wrong diagnoses to surgical failures frequently harming or even killing patients. Public outrage has been prompted by several recent occurrences, including the unfortunate deaths of a five-year-old child at United Hospital after his circumcision, Mahbuba Akter Akhi, an expectant mother, at Central Hospital, and Rafida Khan Raifa, a patient at Max Hospital in Chittagong. The list keeps getting longer, and the situation is made worse by the healthcare personnel's lack of responsibility, profit-driven mentality, the growth of unlicensed clinics, and the presence of incompetent practitioners.

To simplify, medical malpractice or negligence refers to any action or inaction on the part of a licensed health care provider that deviates from the generally recognised standard of care and results in harm or death to the patient.

To prove medical negligence, the plaintiff must show four things: (1) the physician had a duty of care, (2) the physician failed to meet the standard of care, (3) the patient suffered an injury, and (4) the injury was directly caused by the physician's actions or inactions. It is the plaintiff's responsibility to prove these points in a malpractice lawsuit.

Medical negligence in Bangladesh is increasing due to the lack of accountability among healthcare professionals. Patients face challenges accessing justice, including the discharging of burden of proof, lengthy legal processes, and limited resources for legal assistance. To get rid of these challenges, a comprehensive legislation is required defining medical negligence and establishing compensation standards and updates to existing laws and regulations.

Bangladesh has laws covering healthcare, but victims seeking remedies in court face difficulties as there is no single statute that specifically deals with medical negligence. People now seek remedies through writ petitions, invoking the torts channel. However, there are several laws that are related to medical negligence, and we can use them to get remedies as well.

Patients or their relatives in Bangladesh have the option to file cases for medical negligence concerning negligently causing death (section 304A), causing a miscarriage (section 312), and sections 336 to 338 of the Penal Code 1860. When it comes to complaints of medical negligence, medical professionals in Bangladesh may face a maximum sentence of seven years in prison. Yet, provisions like section 88, which discharges them of liability if harm was done by accident, in honesty, and with the victim's consent, often protect them from legal action.

Furthermore, to recover damages for medical negligence, civil court lawsuits may also be brought. Patients' rights are covered under the  Consumers' Right Protection Act 2009, which considers patients as consumers. Particularly focusing on medical negligence, section 53 of the Act imposes penalties such as fines and jail imprisonment. On the other hand, the magistrate can only act if a charge sheet is filed within 90 days, and complaints must be filed with the designated person within 30 days.

Furthermore, The Bangladesh Medical and Dental Council Act, 2010 makes the following offenses punishable: (i) making false claims to be medical or dental professionals; (ii) using names or symbols that could lead one to believe they are professionals; and (iii) prescribing medication that has not been authorised by the government.

There are several legal routes via which medical negligence in Bangladesh can be addressed. By recognising medical care as a contractual deal, patients who experience harm because of a doctor's negligence may seek remedy under the Contract Act 1872 as well.

For medical negligence situations in Bangladesh, the High Court Division of Supreme Court of Bangladesh is a significant remedy route, allowing victims to bring Public Interest Litigation (PIL) or other writ petitions before the High Court Division (HCD) under Article 102 of the Constitution. There are still issues, such as the need for locus standi to seek a remedy, and the lack of willingness of the government to cooperate with the court during a proceeding. Judicial review facilitates group action in resolving medical malpractice matters despite these obstacles.

To conclude, medical negligence in Bangladesh is increasing due to the lack of accountability among healthcare professionals. Patients face challenges accessing justice, including the discharging of burden of proof, lengthy legal processes, and limited resources for legal assistance. To get rid of these challenges, a comprehensive legislation is required defining medical negligence and establishing compensation standards and updates to existing laws and regulations.

The writer is student of law, London College of Legal Studies (South).