5. Writ Petition
5.1. Criminal cases
5. Writ Petition:
In spite of the absence of specific laws on negligence effective actions can be taken against the doctor under the constitution and other laws of the country. This was the situation in Asma’s case57, who was a victim of medical negligence. On 9th August 1998 a housewife name Asma got admitted in Dhaka Medical College Hospital for operation of her ovarian tumors. Professor Mrs. Mahmuda Khatun who attended her, cut off Asma’s Only kidney. Ahuman right association called “Adhikar ” filled a Writ Petition before the High Court Division on the ground that the victims fundamental right to life, which has, being guaranteed by the article 32 of the Constitution has been violated. The court ordered the government and the concern authority to take immediate sep for her treatment. All steps were taken accordingly and Asma was given a kidney by her mother. Though she had been cured for the time being, was died sometimes later. In Asma’s case prompt and effective action was taken but the fact is that the Writ Petition cannot always be filled for medical negligence. The High Court Division can only direct the government or other concerned authority or individual to do something or refrain from doing something, to show cause why he has done a negligent act, or to make recommendation in some case where a death or any permanent injury has been occur due to negligence, the aggrieved party has to file a civil suit for complementation or criminal case for punishment of the concern doctor under the civil and criminal law enforce in Bangladesh58.
5.1 Criminal cases:
In bBangladesh the case for medical negligence are genrrally filled under criminal law.on 20th November 1998 six patient died at Rongpur Medical College Hospital due to the pushing of date expired 59 saline by the duty nurce60. The saline bag contained no date of expiry. But it could be assume from the level used only begs (Institution of Public Health Dacca) that they where manufactured before 16 years of the relevant time. A legal aid non-governmental organization namely “ Ain O Shalish Kendro ” lodged a police case on 21 March 1999. Against this incident on the ground that it violated the people’s right to life and to get proper treatment. The main reason of failing the case was to prevent the repetition of the same offence in future by taking appropriate legal measures against the concerned authority and the persons who were in duty.61 But the case still remains still at the stage when it was fined.
Another criminal case62 was filled on first September 1999 to the Chief Metropolitan Magistrate Court, Dhaka by the father of Rubel, who died on accounted of gross negligence. The case was filled with the legel assistance Ain O Shalis Kandro under sections 303A/338/287/34 of the Penal Code against Dr. Habibur Rahman of Holy Familt Red Crescent Hospital, Dhaka, and Dr. Nizamuddin of Bangobondhu Sheikh Mojib Medical University and nurse Mafuza Begum.63 On 19th J 1999 while casing the stones accumulated in the right side kidney of Rubel, Dr, Habibur Rahman cut of the kidney by operation. The factor being an orthopedic surgeon having no expertise on urology treat the operation without consulting or sending the case to any experts on the required subject. Unfortunately the left side kidney of the patient was damaged. He was needed immediate dialysis; but there was no medicine for dialysis in the hospital.as the patient condition was deteriorating, he was then sent to Bonggobondhu Sheikh Mojib Medical University. His condition was improving was due to regular dialysis but soon there after Rubel become the victim of medical negligence and finally died on 26th July 1999, as the doctor while conducting dialysis at night on 25th July felt into sleep and the duty nurse was not found. The case is at stage of investigation64.
Though the number of cases is few, some cases for negligence have been filed in the code. But the relives given by the Courts in such case are rarely found. An important aspect of this cases is that most of the cases of medical have been filled either but the human rights or legal aid NGOs. Even where victims or their relatives file cases they do so with the aid of such institutions. Because of the rigid and costly process of the court the common people do not get any interest to bring action for negligence. The ignorance of the large section of people about their right, which have been viotleted by Medical negligence, is an important factor of leaving negligence unpunished. BMDC, Hospital Authority, DG Health and Health Ministry may take disciplinary against medical negligence and the complex process of the court can be avoided thereby. But the problems lies here is that this institution are not as active as they required to.
58 Ibid.
59 Ibid
60 The Daily Prothom Alo, Dhaka 22nd November 1998
61 Das Ashit Johan “Rongpur Medical College Hospitale Saliner Karone Ake Rate Che Rogir Mrittu” (Six patient died at Rangpur Medical College Hospital at the same night due to the pushining of saline) Doctari Obohela op. cit, p.15
62 Case no. 35 (9) 1999
63 Das Ashit Johan “Rongpur Medical College Hospitale Saliner Karone Ake Rate Che Rogir Mrittu” op. cit, p 23
64 Ibid
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