The most precious thing for one is considered nothing but his own life. In open eyes, we observe that doctors are saving our life by giving treatment and taking care of us in time our medical emergency. Consequently, doctors are regarded often as a ‘second GOD’ and enjoy highest regards in society as they protect human lives and heal their physical and psychological wounds. However, as a human being it is not expected that their implemented treatment will bring success in each and every cases. Thus, sometimes it may happen that their treatment cost our exquisite lives or other valuable organs of body due to their own negligence in professional conduct or due to the very nature of medical science as an inexact branch of science.
In recent time, along with many other presages, medical negligence issue has become a matter of concern for its repeated occurrence. It clearly indicates a very delicate mechanism that we possess for preventing medical negligence and to ensure a balanced and trustful relation between doctor and his/her patient.The concept that every person who enters into a learned profession undertakes to bring to the exercise of a reasonable degree of care and skill dates back to the laws of ancient Rome and England. Writing on medical responsibility can be traced back to 2030 BC when the Code of Hammurabi provided that “if the doctor has treated a gentleman with a lancet of bronze and has cause the gentleman to die, or has opened and abscess of the eye for a gentleman bronze lancet and has caused the loss of the gentleman’s eye, one shall cut off his hand.
Undoubtedly, we feel lucky when we find some legislations which directly or indirectly talk about the medical negligence issue. Among many other enactments some very related are following –
The Bangladesh Medical and Dental Council Act, 2010
This Act is the successor of previous Medical and Dental Council Act, 1980. Section 4 provides for formation of the council with ex-officio and other nominated members whereas section 5 provides powers and responsibility of this council such as to grant accreditation to institution is going to conduct medical and dental education, to administrate the registrations of recognised medical and dental professionals, to inspect, educational and dental institutions and to take punitive measures against persons who are engaged in medical profession without registration under this Act. Moreover, to take punitive measure against use of false title, degree, fraudulent misrepresentation etc, to adopt the professional code of conduct and ethics for medical and dental professionals and such other or further acts as may be necessary for or incidental to fulfillment of other responsibilities are also within the ambit of this council’s power. This council can also withdraw the accreditation granted to any medical and dental institution if it runs below the standard set by the council.
The Code of Medical Ethics
Bangladesh Medical and Dental Council sets the normative guidelines of professional conduct as the Code of Medical Ethics to be followed by the registered physicians and dentists. This Code provides embargo on providing false medical certificate, attempting to make improper profit, abusing professional knowledge, skill, privileges, abusing of doctor-patient relationship and canvassing etc.In addition, this code included provisions regarding suspension and removal of name from the BMDC’s register as a practitioner in case of gross negligence along with the provisions of taking disciplinary action in case of assisting an unregistered person to practice medicine and dentistry etc. Though, this code does not specifically set any standard for degree of care that a medicine or dental practitioner owes to the patient, it addresses gross negligence and unauthorized professional association.
The Penal Code, 1860
The Penal Code does not provide any section which directly deals with medical negligence except miscarriage or negligent act likely to spread infection of diseases dangerous to life respectively under section 312 and 269. Besides these two sections some other sections such as 270, 271, 272, 273, 274, 275, 276, 304A, 313, 314, 315, 316, 336, 337, 338, 415, 416 and 417 talk about various types medical malpractice related to negligence.
The responder doctor can also take defenses under section 88, 91 and 92 of the Penal Code, 1860.
PIL through judicial review under article 102 of the Constitution of Peoples’ Republic of Bangladesh
Judicial review can be considered as an effective remedy for medical negligence litigations. It can be filed by any person, being aggrieved and having no other efficacious alternative remedy, before the honourable High Court Divisions (HCD) in the form of public Interest Litigation (PIL) or in the form of other writ petition.
However, the remaining problems in terms of judicial review in connection with medical negligence situation are Locus Standi, non-cooperation by the government when the litigation is against the government and sometimes the court is unable to compel the government to response within a particular period of time.
Medical Negligence through the lenses of the Consumer Protection Act, 2009 in Bangladesh
Alike other services medical services are also within the periphery of definition of services provided under section 2.22 of the Consumer Protection Rights Act, 2009. This Act calls for various ranges of punishments. Section 45 is about punishment for not providing promised services with imprisonment for a term not exceeding one year or with fine not exceeding 50,000 taka or both though it’s very tough to prove that hospitals and doctors are not providing intended services. The Act also provides that whoever does any act which can endanger life or security of customer will be punished with imprisonment for a term not exceeding three years or with fine not exceeding 200,000 taka or with both under section 52. As per section 53, medical professionals may also be held liable if their negligence cause damage to manage, health or life of service receivers.
Moreover, another very unavoidable issue is that, still our judiciary is following the ancient BOLAM principle in Medical Negligence litigations. Some scholars demand that, it is high-time to break the tradition and go for a qualified BOLAM principle. Furthermore, our judiciary should be more cautious about defensive medicine issues, distinction between medical negligence and medical error, authority to set the standard of care in case of medical treatment and miss-uses of PIL process when it is becoming very common practice to file a PIL and convince the court to declare interim rule to pay a huge amount of monetary compensation either by the doctor or by the Hospital Authority. In many research it is already evident that Alternative Dispute Resolution (ADR) mechanism can serve a better purpose in case of Medical Negligence litigations.
Till 2013, we don’t have any verdict from our honourable High Court regarding Medical Negligence. In addition, despite of having laws on institutional mechanism for checking and controlling medical negligence in Bangladesh, due to some unknown reason this institutions are working in turtle speed in some cases and in some other cases they act like a toothless tiger.
The day is not so far when all the citizen of our country will make a catchphrase that- Doctor should know their own Laws.
The writer is a lecturer of the Department of Land Management and Law, Faculty of Law, Jagannath University