Current legal regime makes trial difficult
304 dead from reported medical negligence in four years and a halfMubin S Khan
It is very difficult to try a doctor or medical practitioner for medical negligence under the currently available legal framework, according to a study study rights organisation Ain o Salish Kendra carried out.
According to information compiled by the organisation based on media reports, there have been 333 reports of alleged medical negligence from 2009 to June 2013 in the country in which 304 people died while most of the remainder were permanently disabled or were dying.
The legal advocacy and policy reform unit of rights organisation, which carried out the study, is ‘unaware of any successful instance of a case of medical negligence in which the victim found redress through the courts’, the organisation’s deputy director Abu Obaidur Rahman said.
The Law Commission, meanwhile, proposed the drafting of a law to deal with medical negligence in March 2013 but the government is yet to act on it.
According to the study, ‘Medical negligence and fraudulent practices in private clinics: legal status and Bangladesh perspective,’ while there are a number of laws that deal with the medical profession, most of them deal with specific areas of the profession.
The Bangladesh Medical and Dental Council Act, under which the profession is regulated, and the Medical Practice and Private Clinics and Laboratories Ordinance, under which the healthcare facilities are regulated, both provide scope for disciplinary oversight of the profession although the laws lack any provision for the accountability of regulatory bodies — the Bangladesh Medical and Dental
Council and the Directorate General of Health Services.
Meanwhile, the scope for legal action under the penal code is set back by the emphasis on mens rea or guilty mind, in the code.
‘The doctor-patient relationship itself carries a presumption of acting in good faith. As a result, even the cases of gross negligence do not appropriately fit the scope of the sections,’ reads the study.
Civil suits involving medical negligence are also quite rare given the expense, length of proceeding and the strong requirements for providing evidence.
‘Both criminal and civil suits are also beset by the lack of experience and expertise of the legal system — be it the police, lawyers or judges — in dealing with a specialised field like healthcare,’ said Tapos Bandhu Das, a Sylhet-based lawyer and author of the study.
Tapos further points out that the medical profession in the country is very insular by nature and the many associations in the field often act as a hindrance to making individuals in the profession accountable.
‘It is very hard to find a doctor who will speak up against the professional conduct of another doctor in a court of law,’ said Tapos.
Tapos believes that there is scope to try medical negligence under the recent Consumer Protection Act 2009 though it has not yet been tried. Additionally, a specific law that defines the parameters of medical negligence — in regard to to both fraudulent and negligent behaviour of individual medical practitioners and healthcare facilities — is an urgent necessity.
With these in mind, the Law Commission in 2013 drafted a set of proposals that highlighted the need to define medical negligence, to define the relationship between doctors and pathologies and diagnostic centres, to form special civil courts to provide redress for medical negligence, to increase the emphasis of medical ethics in the medical curricula, among other things.
‘It has been around a year since we made the proposals for a draft medical negligence law, and did everything in our capacity to publicise it through the media and seminars. However, the government hasn’t done anything about it,’ said M Shah Alam, member of the Law Commission.
Given the situation, the medical profession remains virtually unaccountable for the many types of negligence and fraudulent practices that are reported in the media almost regularly.
‘Most of the complaints we get have to do with the absence of doctors in government health facilities around the country,’ said Md Emdadul Haque, deputy director (in-charge) of discipline at the Directorate General of Health Services.
‘Every month or two months, we get a complaint about misconduct committed by a doctor. We carry out a preliminary investigation and inform the health ministry of it,’ he added.
According to Emdadul, a doctor accused of misconduct is first investigated through a committee set up by the health services directorate general, and the health ministry can carry out another investigation later. In between, the accused doctor will receive an initial show-cause notice from the health ministry and another one in the future — if he has been judged worthy of punishment — which can involve revoking of medical licence, as the worst punishment.
The rights group over the years has pursued a number of cases of medical negligence — including high profile incidents such as when a young boy died as doctors removed his wrong kidney while 22 people in Rangpur Medical College died as they were provided saline that had expired. None of the victims, however, found redress through the legal system.
‘Most of our cases hardly ever reach the charge sheet stage,’ said Obaid. ‘After a while, the victim’s families, who are already aggrieved with their loss, do not have the mental strength to handle the harassment and uncertainty that comes with finding justice for medical negligence.’
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