Chapter 7
7 Problems of Implementing Laws on Medical Negligence:
Bangladesh faces many difficulties in implementing the rights of the victims of medical negligence. It does not have any national health rules still now. The standard of right to health is generally determined by the rules, which act as an indicator. Where the treatment given by a doctor falls below that standard the patient is said to have been the victim of medical negligence. Other factors, which create hindrance in making complaints against medical negligence, have been disused as follows:
7.1 Absence of Law:
As the law on negligence is uncodified in the form of statute, generally attempts are made to give relief to the victims under the general laws. Bu these attempts have not been proved to be effective. Criminal cases are generally filed against it under the provisions of the Penal Code dealing with negligence or other relevant sections in this regard. But it cannot be appreciated as a proper way. Because these provisions are applicable not only in the field of medicine but to other professions also; an accident caused by the negligence of driver can even be brought within these sections. In fact in Bangladesh most of the cases under these sections are filed against driver’s negligence. The main problem of proceeding under this section is that they say nothing about the principles as to how duty of care should be determined, what is standard of care and how damage should be proved. These are the subjects of the law of torts. But there is no codified law on this subjects in Bangladesh, and this law has not been developed here by judicial decisions. So victims cannot claim remedy under this law from a civil court.
7.2 Higher Court Fee:
To impose penalty upon a guilty doctor is not sufficient to satisfy the victim. He should be paid compensation for the injury caused to him by negligence. It requires a suit to be filed before a civil court, which involves high court fee. So it is very difficult especially for the poor litigants to bear the expenses of such a suit by paying the court fee.
7.3 Complex Process of the Court:
The process of the court is dilatory, complex, and costly. It makes individual safeguards and remedies inaccessible to people. They prefer to take no step in many cases even though they have suffered injury. Because coming before the court to get relieves may cause to them a further pain.
7.4 Difficulties Regarding Proof of negligence:
It is very difficult to prove a case of medical negligence owing to following reasons: (i) Due to the technicality of medical issues a doctor is required to prove the negligence of another doctor against whom a charge for negligence has been brought.
The doctors generally do not give testimony against his fellow doctor. The court has to face trouble in proving a case because of the non-cooperation of such witnesses.
(ii) Every patient does have a right to know about the steps taken by the doctor for his treatment and the doctor is under an obligation to provide such information. This right of the patient is recognized in all civilized countries. But in Bangladesh the patients are not served with any document containing such information except birth or death certificate and discharge certificate etc. In the absence of the necessary documents, it becomes very difficult to prove a case of negligence.
7.5 Incompetent Judges and Medical Regulatory Bodies:
Because of the technical nature of medical issues, the judges may not be considered as competent persons and to decide what is reasonable and what is not in particular case. A probable solution to this problem is to allocate this function to medical experts and regulatory bodies who are more equipped to handle the subtleties of medicine as a profession, 79 But in Bangladesh these regulatory bodies do not pay such a role, which is generally expected from them.
7.6 Inactive Medical Regulatory Bodies:
Bangladesh Medical and Dental Council is the only authority to regulate and control the professional conduct of the doctor and to take appropriate actions in the case of the negligence. But the actions taken by the Council are very few. 80 The people even do not know about the existence of such a body, where they may complaint regarding negligence of doctor. As a result it has become an inactive organization. Another problem is that the BMDC is subject to some limitations while exercising disciplinary function. it cannot always take action against a doctor who has committed negligence. Because its jurisdiction is limited to the doctors who are practicing privately or who are the employees of private clinics. If the doctors act under a hospital authority, the council has nothing to do with the doctor and the hospital. In such a case Director General of Health or Health Ministry can take action, They rarely exercise their function in this regard.
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79 Sultana Nishat, “Medical Negligence in Bangladesh; An Introduction” law Vision, Issue: 9 Department of Law, University of Chittagong, (2004-2005), p.52.
80 Damayanti S. “What is Medical Negligence? What are the Standard of Care Principles” op. cit, p. 44.
7.7 Commercialization of Medicine:
There is a growing commercialization of medicine what with quid pro quo deals between physicians and diagnostic center. Private clinics have become a very profitable business and many people who do not have any connection with medicine are the owners of such clinics. These are not well equipped. Low paid junior doctors; untrained nurses, lack of emergency machines etc. are the main treature of these clinics. These factors facilitate medical negligence to a large extent. The patients coming to these institutes have to suffer bitterly instead of getting proper treatment.
7.8 Absence of Consumer Protection Law:
The costly slow and complex process of the court discourages the people to have resort to the ordinary courts. It requires a system to be introduced which would enable the victims to have an easy access to justice, which would be more flexible, free of cost and quick in service. A forum established under an Act like Consumer protection Act can give such a remedy. But unfortunately Bangladesh does not have adopted such a comprehensive Consumer Protection Law still now.
7.9 Lack of Awareness of the People:
In Bangladesh most of the people are illiterate, who are totally ignorant of the right to make complaint against medical negligence. Even the educated people are not familiar with this terminology. As a result, the steps taken either by the court or by medical regulatory bodies in this regard are rarely found.
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