Medical Negligence Issues in Bangladesh: An Urge for a Separate Medical Negligence Law
10. Remedies Available in Case of Medical Negligence in Bangladesh The incidence of medical negligence can be remedied in the following mechanisms
law, apply to medical malpractice litigation in Australia. Earlier in this decade, two large Australian insurers that financed the defense of medical malpractice claims went bankrupt, necessitating a government bailout. Malpractice insurance premiums increased, leading to debate about tort reforms and capitation limits on claims.53
10. Remedies Available in Case of Medical Negligence in Bangladesh
415, 416, and 417 of the Penal Code,1860. Though in practice it is very difficult to prove the mensrea, one of the vital elements to prove an action as a crime under the code, a substitute argument of constructive mensrea can sometimes be sufficient to prove someone as guilty.
iii. PIL
Medical negligence occurrences can also be remedied under the umbrella of public interest litigation in the High Court Division with the related concept of the writ under article 102 of our constitution.55 In the notable Doctor's Strike Case (Dr. Mohiuddin Farooque vs. Bangladesh & others, Writ Petition No. 1783 of 1999), the continuous strike by government doctors was challenged wherein the court treated the strike as a failure to perform their statutory and Constitutional duties to ensure health services and medical care to the general public. The Court held that the willful absence of the government doctors from their statutory and public duties caused the threat to the life and body of the public is of no legal effect. In August 2011, Prof. Dr. Mridul Kanti Chakrabarty, a teacher at the University of Dhaka died at the Lab Aid Cardiac Hospital. On a PIL of negligence filed by Advocate Manzil Morshed, High Court Division summoned the accused doctor and awarded a compensation of BDT 50 Lacs to the patient's family. In 2016, a child died at the Japan Bangladesh Friendship Hospital at Dhaka. However, the staffs of the hospital kept the death secret and demanded money from the family for the treatment of the child. RAB arrested six persons in connection with the incident and a mobile court fined Taka 11 lakh to the Hospital. Furthermore, the Division Bench of the High Court Division issued a sou-moto rule against the hospital authorities and summoned the Management to the Court.56 Besides these, two Public Interest Litigations (PIL) filed by Ain o Shalish Kendra (ASK) are very notable here.57 C. Problems in solving Medical Negligence cases
Unlike other regular criminal cases, medical negligence cases need to go through a long and lengthy procedure which most often vitiates the ultimate purposes of legal protection for medical negligence incidents in Bangladesh.
Also, there are several laws in Bangladesh to mitigate medical negligence incidence but that lack of efficient implementation mechanisms. Besides, only a few non-governmental Organizations provide ‘legal aid’ regarding medical negligence. However, due to absence of consciousness among the mass people regarding legal remedies in medical negligence, doctors and hospitals usually
55 The Constitution of Bangladesh, Art.102.
56 Shyikh Mahdi, ‘Reviewing the Views, Judicial Activism to prevent Medical Negligence: Glimmer of Hope?’ The Daily Observer (Thursday, 15 June, 2017 at 12:00 AM).
57 Ain o Salish Kendra vs. Government and Others [2006] Writ Petition No.624. Ain o Salish Kendra vs.
Government and Others [2010] Writ Petition No.4319.
like to mitigate medical negligence situations through negotiation with the victims; as they apprehend that any sort of litigation will destroy their name and fame. Most often, medical negligence occurrences are not under continuous supervision rather people and the government become concerned about it if it is significantly covered by media. Lastly, general people are not willing to file a case against the hospital and doctors, apprehending that they are not on a level playing field.
D. The ways ahead
a. To modify the existing laws by including a compulsory accountability system in medical service administrations and to allocate a reasonable fund from annual national budget to improve the standard of medical services provided in public hospitals.
b. To enact a special law providing comprehensive definition of medical negligence and speedy procedures that will facilitate the general mass to exercise their right of access to justice fairly.
c. To ensure a level playing field, the medical negligence litigations should be prosecuted by the public prosecutor on behalf of the government and to mitigate medical negligence disputes through negotiation with the victims;
a mandatory ADR mechanism can be introduced under the concept of a special tribunal or Health Court58.
d. To enhance the media persons’ vibrant role by covering all the medical negligence issues irrespective of any victims’ individual or social identity and without any biases and to public awareness through media, seminar, symposium, and other direct or indirect means.
e. Not only the government should be much more serious about their constitutional and other statutory duties for the common goods of public health rights59 but more non-governmental and private stakeholders should come forward to enlarge their helping hand in case of filing a petition against medical negligence.
f. Lack of expertise among the judges and the lawyers to deal with the litigation of medical negligence are also liable for delay in resolving the litigation of medical negligence. So, especial training facilities can be organized to ensure redress from the judiciary by competent judges.
Besides, medical laws should be mandatorily incorporated within the academic curricula for both law and medical students.
58 Khandakar Kohinur Akter, ‘A Contextual Analysis of the Medical Negligence in Bangladesh: Laws and Practices’ [2013] Volume IV, Northern University Journal of Law, 67.
59 Tapos Bandhu Das, ‘A study on Medical Negligence and Fraudulent Practice in Private Clinics:
Legal Status and Bangladesh Perspective.’