PART-VI Implementation of Existing Laws On Medical Negligence Chapter 7

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.

PART- V Laibility Arising Out of other Laws Relating to Medicine. Chapter: 6 Liabilities arising out of laws relating to medicine

6..        The Medical and Dental Council Act 1980

6.1.      The eye Surgery (Restriction) Ordinance 1960

6.2       The Allopathethic System  (Prevention of misuse) Ordinance, 1962.

6.3.      The Bangladesh Unani and Ayurvedic Practitioners

6.4.      The Bangladesh Hommeopathic Practitioners 1983.

6.5.      The Medical Practice And Private Clinics And Laboratories (regulation) Ordinance, 1982

Liabilities Arising out of other laws relating to Medicine:

The laws relating to medicine are mainly concerned with the qualifications of physicians. They contain the provisions prescribing as to who can conduct a particular act like surgery, or treatment and what would be the consequence if a person having no such qualification performs the said act, or the person does not act up to the marks, though he possesses the required quality. But these laws are silent on the matters of determination of liability. The principles of duty of care, breach of duty and damage caused thereby are absent here. The liability arising out of these laws may discussed in the following ways

6. The Medical and Dental Council Act, 1980:

The Bangladesh Medical and Dental Council (BMDC) established under the above Act (Act No. 16) maintains a register of medical practitioners possessing the requiredqualification.⁶⁵ This Council consists of representatives of all sectors in health including a legal practitioner nominated by the Chief Justice. ⁶⁶ The Council not only maintains a register of medical practitioners but also give them instructions on their professional life. The BMDC can take an action against a doctor in the cases of gross negligence or professional negligence. Without going to the rigid and costly process of the ordinary courts the victims of medical negligence may bring a written complaint before the BMDC.

Any person who is aggrieved by medical negligence may file a written complaint to the BMDC. He has also to submit the evidence, if any, along with the complaint.

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⁶⁵          Section 20 of the Act.

⁶⁶          Shown Hossain Tanim, Chikithshokder Oshodachom O BMDC (Medical malpractice and BMDC) in Shahin Akhter (ed) “Dactari Abohela” (Medical Negligence) Ain O Shalish Kendro, Dhaka (2001) p: 43

 On receipt of the complaint, the Council will give notice to the concerned doctor to show cause. He will be asked to give his own explanation about the complaint within fifteen days. The explanation made by the doctor will be sent to the disciplinary committee. Thereafter the committee will investigate the matter. At this stage the complainant and the accused doctor will be given an opportunity of being heard. The disciplinary committee may even call upon a hospital authority or medical centre to give documents, if it is necessary. The committee will submit its report to the BMDC. The council has the authority to remove the name of any registered practitioner altogether or for a specified period from the registrar who has been found to be quality or infamous conduct in any professional respect. ⁶⁷ A medical practitioner or dentist whose name has been removed from the register in this way cannot practice or hold himself out as practicing, the allopathic system of medicine or dentistry.

6.1 The Eye Surgery (Restriction) Ordinance, 1960:

The ordinance intended to prevent surgery on the eye by persons other than registered medical practitioners. Section 3 (1) of the said ordinance provides that any person, not being a registered medical practitioner, who performs eye surgery upon another, whether with or without latter’s consent, shall be punishable with imprisonment for a term which may extend to one year or with fine which may extend to one thousand taka.

⁶⁷ Section 28 of the Bangladesh Medical and Dental Council Act 1980

6.2 The Allopathic System (Prevention of Misuse) Ordinance, 1962:

This Ordinance contains provisions to prevent the misuse of the allopathic system of medicine and to provide for matters connected therewith. it says that no person other than a registered medical practitioner can perform surgical operation.⁶⁸ Such a practitioner or person authorized in this behalf by the Government can give the prescription of any antibiotic or dangerous drugs under this ordinance. Whoever contravenes this requirement shall be punishable with imprisonment which may extend to one year or with fine not exceeding two thousand taka or both. ⁶⁹

6.3 The Bangladesh Unani and Ayurvedic Practitioners Ordinance, 1983:

This Ordinance is to provide for the regulation of the qualifications and registrations of practitioners of Unani and Ayurvedic system of medicine. There exists a board like the BMDC namely the Bangladesh Board of Unani and Ayurvedic System of Medicine, for carrying out the purposes of the Ordinance. ⁷⁰

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⁶⁸             Under Section 28 of the Act registered medical practitioner means a practitioner registered under Bangladesh Medical and Dental Council Act, 1980

⁶⁹             Farooque Mohiuddin, Hasan Rizwana, Law Regulating Oshodachom O BMDC (Medical Malpractice and BMDC) In Shahin Akhter (ed) “Dactari Abohela” (Medical Negligence) Ain O Shalish Kendro, Dhaka (2001) . 43.

⁶⁹             Section 28 of the Bangladesh Medical and Dental Council Act 198o

⁶⁹             Under Section 2 of the Act registered medical practitioner means a practitioner registered under the Bangladesh Medical and Dental Council Environment in Bangladesh, 2nd Edition, Bangladesh Environmental lawyers Association (BELA), Dhaka, (2004), pp. 63-64.

⁷⁰          Section 3, The Bangladesh Unani and Ayurvedic Practitioners Ordinance, 1      1983.

In order to continue practice in Unani and Ayurvedic system of medicine a person has to be registered as a practitioner under this Ordinance, and he has to show professional efficiency in his dealing with the patients. If a professional has been found to be guilty of cognizable offence or misconduct which in the opinion of the Board discloses moral turpitude such as to render him unfit to practice his profession, the Board may direct his name shall be removed from the registered ⁷¹. If the registered practitioner contravenes the provisions of this ordinance which requires him to be abided by the Code of Ethics for Unani and Ayurvedic practitioner framed by the Board and approved by the government shall be punishable with imprisonment for a term which may extend to one year or with fine which may extend to one thousand take or with both. ⁷² A person having not being registered under this himself out, whether directly or by implications the Unani and Ayurvedic system of medicine. ⁷³

6.4 The Bangladesh Homeopathic Practitioners Ordinance, 1983:

The regulation of the qualifications and registration of practitioners of Homeopathic system of medicine are the main concern of this Ordinance. Its provisions are almost same to the above-mentioned Ordinance. The Bangladesh Board of Homeopathic System of medicine can cancel the registration of a practitioner who is found to be guilty of any cognizable offence or professional misconduct. ⁷⁴ If a registered practitioner does anything contrary to the Code of Ethics for homeopathic practitioner shall be liable to punishment with imprisonment for a term, which may extend to one year or with fine, which may extend to taka one thousand or with both. ⁷⁵

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⁷¹ Section 31 Ibid.

⁷² Section 32 Ibid.

⁷⁴ Section 28 the Bangladesh Homeopathic Practitioners Ordinance, 1983.

⁷⁵ Section 36 Ibid.

6.5 The Medical Practice and private Clinics and Laboratories (Regulation) Ordinance, 1982.

The Commercialization of medicine is one of the most important factors leading to negligence. The treatment of patients at the government hospital is free of charge, so that the patients fail to get full concentration of the physicians who are busy with private practices at their chambers and clinics. The number of private clinics as business institutions is increasing day by day which in most of the cases are not properly equipped. The life of the patients often feels at risk for want of some emergency machine and drugs. The clinics though bound to provide these requirements sometimes are found to be ignorant of them, which is a clear violation of duty of care. This Ordinance intends to check this situation. it regulates medical

practice and functioning of private clinics and laboratories. It requires a doctor’s chamber to be maintained in hygienically sound conditions with necessary facilities for the examination officer authorized by him a registered practitioner is found to contravene this requirement he may recommend to the government to debar him from carrying on private medical practice. ⁷⁶

This Ordinance contains conditions to be fulfilled by a clinic to get license. These are proper accommodation with hygienic environment for the patients at least eighty square feet of floor space for each patients, an air conditioned operation theatre, adequate supply of life saving and essential medicines, at least one medical practitioner, two nurses for every ten beds round the clock, specialists for operation, treatment and supervision of patients. ⁷⁷

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⁷⁶             Khan Alina, “Ami Mone Kari Dacterder Dhormoghote Jaber Kono Adhikar Nel” (I think the Doctors should not have any Right to Go For Strike) Dactari Abahela, op. cit, p. 41.

⁷⁷             Damayanti S. “What is Medical Negligence? What are the Standard of Care Principles” op. cit. p. 48

If an inspection made by the DG or any officer in this behalf, a private clinic is found to lack such requirements, its cancellation may be recommended. ⁷⁸ Section 13 prescribes punishment of such doctors and clinics. It says that if any registered medical practitioner contravenes any provision of this Ordinance, he shall be punishable with fine, which may extended to five thousands taka. In the case of owner of a private clinic, the punishment of the same offence is imprisonment for a term which may extend to six months, or with fine which may extend to five thousand taka. In the case of owner of a private clinic, the punishment of the same offence is imprisonment for a term which may extend to six months, or with fine which may extend to five thousand taka, or with both, and the court, while convicting such owner, may order for forfeiture of all or any of the movable property in the clinic.

Part: V Scenario of Legal Remedy in Bangladesh for Negligence Chapter: 5

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 9^th 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 20^th 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 19^th 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 26^th July 1999, as the doctor while conducting dialysis at night on 25^th 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.

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57  Shobnom Shohana “ Doctari Abohola  Shonkranto Bangladesher Ain.” Op. cit, p 48

58  Ibid.

⁵⁹ Ibid

60  The Daily Prothom Alo, Dhaka 22^nd 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