Relief against medical malpractice

Medical malpractice is not only a domestic issue rather a global concern all over the world. But it draws media's attention only when someone dies or something bigger happens therefrom.

The existing ways to get remedy are not well circulated. Some legal procedures are not only complex but also time consuming, expensive and often it is tough to get expected result due to many factors including biased or improper investigation, stringent rule of evidence etc. Therefore, victims or their families are reluctant to bring formal allegation against medical practitioner rather they often get involved in unexpected conflicts with them to mitigate their sudden agitation.

However, one can file complaint in the form of an application addressing the registrar of the Bangladesh Medical and Dental Council (BMDC) regarding any grievance caused by any mal-treatment of a doctor, dentist or medical assistant. After receiving that, the BMDC will form a committee to enquire into the matter.  If the accusation is proved, they can take action against that accused. Such action ranges from giving warning to cancellation of registration depending on the gravity of wrong committed under the Medical and Dental Council Act, 2010 and the Code of Medical ethics adopted by the BMDC.

Nevertheless, the council is neither entitled to give any compensation nor is empowered to take punitive action. From  after the formation of the council to 2010 there were only 47 complaints filed in the BMDC and among them registration was cancelled permanently in only one case and in another one, registration was suspended temporarily. In rest of the cases, the council merely warned or criticised the doctors or dentists.  The enquiry is conducted by fellow physicians which is questioned in terms of its neutrality. The council's website doesn't have any mechanism to file the complaint through online. Further, they have no power to deal with conducts of unregistered doctors. It is evident that the system needs to be revisited. Apart from BMDC, the concerned appointing authority of the accused physician may take departmental action like suspension from job.

Albeit there is no express provision in law for tortuous claim to get compensation for medical negligence, one can surely file a civil suit for damages. However, compensation for mental trauma is yet to be recognised in our law. Complicated and arduous civil litigation system, requirement of advalorem court fee, lack of technical knowledge of lawyers' and judges', stringent provision of producing evidence etc. are refraining the complainants from filing civil litigations.

The scope for criminal action for medical negligence is very narrow as well. The Penal Code (PC) 1860 only suggests to prosecute a medical practitioner for his negligence under section 304A; punishment of which is maximum five years imprisonment or fine or both. Victim or his near ones may bring action under sections 314, 321-326 and 336-338 also. The PC requires presence of strong mental element (mens rea) to prove the guilt while exemptions and immunities given for the defense of 'good faith' as enshrined in sections 88 and 92 of the PC narrows the scope for bringing criminal action against clinical malpractice.

Apart from these, Ss. 52 & 53 of the Consumer Rights Protection (CRP) Act, 2009 opens another door for the victim to claim compensation for medical negligence. Because a medical patient is considered as a consumer and the medical institutions or professionals are service providers under section 2 though it is not expressly stated in the Act. Hence, one can file complaint directly to the Directorate of National Consumer Rights Protection (DNCRP) over phone call to 01777 753 668 or through email to nccc@dncrp.gov.bd or via postal communication with the Director General, DNCRP, 1. Karwan Bazar (TCB Building-7th floor), Dhaka-1215. However, the appellant will get 25% of fined money if s/he wins the case.

The CRP Act also provides forum for parallel civil jurisdiction for compensation which can be pursued with availing criminal jurisdiction simultaneously. The court of the Joint District Judge in whose local jurisdiction the matter has arisen is competent to try the matter and an appeal can lie to the High Court Division.

Medical professionals must be accountable to ensure highest standard in healthcare. To guarantee this, enactment of a specialised legislation particularly to deal with the matter and formation of an independent regulatory body are crying needs to ensure good governance in healthcare sector in Bangladesh.

The writer is an Assistant Professor of law at dhaka international university.