By Shyikh Mahdi
The recent fiasco between students of University of Dhaka and the doctors community reignited the prevalent mistrust and lack of confidence between the groups, which ultimately led to violence, legal actions and a huge uproar in social media. The authentic cases of medical negligence and the cases which are not tend to reach the national media on a regular basis these days, where violence between doctors and patient’s families result into strikes of doctors, thus tripling the suffering of general people. The anger of the perpetrators of violence fumes from the misunderstanding between parties which gains momentum by the grief of losing loved ones, and the end result increases the toiling of everyone concerned. At the same time, over-monetizing of this noble profession has also resulted in an unchecked surge of the cases of medical negligence in Bangladesh.
Understanding the problem
Medical negligence is a clear violation of right to health by a professional group who are actually on duty to protect when emergency strikes and the health rights are under threat. The number of casualties resulting from medical negligence is not negligible at all. A study says that medical errors are the third leading cause of death in America after heart disease and cancer, causing at least 250,000 deaths every year. As for the statistics in Bangladesh, Ain O Shalish Kendra published a report in 2008 where 504 incidents of medical negligence between June 1995 and September 2008 were listed.
The flip side of the coin is equally horrifying. Almost every single day at least a news on violence in hospitals hits the media outlets of the country. According to the World Health Organization (WHO), “between 8% and 38% of health workers suffer physical violence at some point in their careers. Many more are threatened or exposed to verbal aggression. Most violence is perpetrated by patients and visitors.” In a profession that demands tremendous stress on the lives of doctors and medical professionals, an inevitable fear of repercussion from the patient’s family members just adds more pressure to the overwhelming burden.
Let’s take an example. As a common practice, private hospitals and clinics in metropolitan cities generally used to refuse wounded victims of road accidents and refer them to govt. hospitals (mostly due to legal and police hassles and also the fear of violence in case of death of the patient) In this regard, Supreme Court had to intervene by directing the Health Officials and Hospitals to receive and treat road accidents victims (In the 2016 Case of BLAST and Sayed Saifuddin Kamal vs. Bangladesh) without any hesitation.
What is Medical Negligence?
Medical negligence has become a popular topic of attention and discussion in many developed countries, and many of them have enacted and established separate Acts and courts to strengthen legal coverage on health care. In Bangladesh, however, there is no specific and comprehensive legislation yet to prevent medical negligence. As of now, the abundance of incidents of medical negligence mostly goes without any legal action but often lead to violence, which consequently paves to a frustrating situation where the perception of general people about the integrity of medical service are taking a downward turn. 
Medical negligence can be off the different types, but in broad aspect they can be categorized as – (1) Misdiagnosis; (2) Delayed Diagnosis; (3) Surgical Errors (Unnecessary Surgery, Errors and negligence in Anesthesia, wrong site surgery); (4) Childbirth trauma and malpractice (medical negligence and C-sections, complications with induced labor); and (5) Negligent long term treatment.
What constitutes Medical Negligence?
To establish medical negligence against a patient, four elements need to be proved, which are – (1) Duty (the duty was owed by the professionals); (2) Negligence (reasonable care was not taken); (3) Damage (Claimant suffered compensable injury) and (4) Causation (the injury was caused by the conduct of the professionals).
Indian Judiciary stipulated the fulfillment of three elements to constitute medical negligence against a doctor, which are – (1) the Doctor was under a duty to take reasonable care towards the claimant, to avoid the damage complained of, or not to cause damage to the claimant by ensuring reasonable care; (2) There was a breach of such duty on part of the doctor; (3) Such breach of duty was the real cause of damage complained of, and such damage was reasonably foreseeable.
Medical Negligence: Burden of Proof lies on whom?
If the negligence is alleged on part of the Doctor/ Hospital (which is mostly the case), then the burden of proof shall be held upon the complainant, and it is then his/ her liability to establish and proof the negligence. Judicial position in this regard is that, if the complainant fails to prove negligence on part of the doctor after bringing the allegation, then there will be no damages and the claim shall be dismissed.
However, if the doctor alleges contributory negligence (lack of reasonable care on part of the patient or patient’s family) as a defense, then the burden of proof shall be held upon the defendant i.e. the doctor/ hospital.
Legal Remedies to redress Medical Negligence
1. Constitutional Safeguard
Our Constitution protects “the right to life”(Article 32) as a fundamental right for its citizens. Furthermore, in the Fundamental Principles of State Policy, the State has been obligated to ensure the “basic necessities of life, including food, clothing, shelter, education and medical care and to ‘raising of the level of nutrition and the improvement of public health’. In brief, the constitutional remedies for protection of health and life can be found under Articles 15, 18 read with Articles 31, 32, 44. Enforcement of such rights can be exercised through article 102 (Writ petitions) of our constitution.
Judicial Activism to prevent medical negligence
In the notable Doctor’s Strike Case (Dr. Mohiuddin Farooque vs. Bangladesh & others, Writ Petition No. 1783 of 1999), the petitioner challenged the continuance of strike by government doctors wherein the court treated it (strike) as ‘failure to perform their statutory and Constitutional duties to ensure health services and medical care to the general public, arising out of the abstention from duties by the striking doctors. It was emphasized that the willful absence of the doctors of BCS (Health Cadre) as members of the Association from their statutory and public duties caused threat to life and body of the public is of no legal effect.
In another case, Prof. Dr. Mridul Kanti Chakrabarty, a teacher of University of Dhaka died at the LabAid Cardiac Hospital in August 2011. On a PIL filed by Advocate Monzil Morshed, High Court Division summoned the accused doctor awarded a compensation of BDT 50 Lacs to the patient’s family. LabAid immediately paid the compensation to the family of Professor Mridul.
In another incident in February, 2016, a child died in the hospital on February 9 but the staffs of Japan Bangladesh Friendship Hospital in Dhaka demanded money from the family for treatment without informing about the death. A day after the incident, a mobile court along with Rapid Action Battalion (Rab) arrested six persons in connection with the incident and fined the hospital Tk 11 lakh. Furthermore, the Division bench of Justice M Moazzam Husain and Justice Md Badruzzaman of the High Court Division issued a suo-motu rule against the hospital authorities and summoned the Management to the Court.
2. Medical and Dental Council Act, 2010
The Medical and Dental Council (BMDC) works as the supervising body for doctors and health professionals in Bangladesh. According to the Act, when any medical practitioner or dentist is found guilty of misconduct in respect of his profession, the Council may refuse to permit registration of that person (Section 23). The Council may also direct the removal of the name of any registered medical practitioner or dentist from the Registration, altogether or for a specified period, on account of professional misconduct. Furthermore, Section 5(a) of the Code of Medical Ethics provides that gross negligence of medical and dental practitioners in their duties to their patient may be regarded as misconduct sufficient to justify the suspension or the removal of their names from the Registrar.
However, BMDC received 337 written allegations over the past six years (2011 – 2017). Out of all these, only one doctor was punished.
3. Medical Practice and Private Clinics and Labs (Regulation) Ordinance 1982
This Act also has given supervisory powers to the Director General of Health. The Director General of Health or any other officer authorized by him shall have the authority to inspect any chamber of registered medical practitioner, private clinic, private hospital or pathological laboratory whether they have contravened or failed to comply with any provision of this Ordinance (Section 11). In case the Director General finds that they have contravened any provision of this Ordinance, he may recommend the government in case of medical practitioner to dismiss him from carrying on medical private practice, in case of private clinic or private hospital to cancel the license in respect thereof and in case of pathological laboratory to close it down.
4. Consumers Rights Protection Act, 2009
Under this Act, “Service” means, inter alia, health services which are made available to the consumers in exchange of price but this will not include free service (Section 2 (22) of the Act). Under the Act, whoever does any act which can endanger life or security of consumer will be punished for imprisonment for a term not exceeding three years or with fine not exceeding 200,000 taka or with both (Section 52). Medical service providers can be prosecuted if there is negligence or intentional act or omission leading to endangering life and security of the patients. According to section 53, medical professionals may also be held liable if their negligence cause damage to money, health or life of service receivers.
5. Penal Code, 1860
The criminal complaints are being filed against doctors alleging commission of offences punishable under Section 304A or Sections 336 or 337 or 338 of the Penal Code, 1860 alleging rashness or negligence on the part of the doctors resulting in loss of life or injury of varying degree to the patient. However, sections 80 and 88 of the Penal Code contain defenses for doctors accused of criminal liability.
6. Civil Liability
Doctors in Bangladesh may be held liable for their services individually or vicariously as per civil law and the medical professionals can be liable or provide compensation for medical negligence. It means that whenever there is breach of a contract (regarding treatment or service), the aggrieved parties are entitled to claim one or more remedies against the opposite party as per Contract Act 1872. Furthermore, an aggrieved patient may also seek temporary and permanent injunction under the Specific Relief Act, 1877 as against health professionals violating contractual and service terms.
7. The new Medical Services Act (draft): Light or darkness in the horizon?
The draft Medical Services Act which the government began formulating in February 2014 is finally ready to be submitted before the Cabinet within a few weeks. According to the draft act, negligence of healthcare providers will constitute a cognizable crime, but it will be bailable and negotiable, whereas threats to the healthcare providers, hindering their jobs, assaulting them or destroying any properties of the care-giving institution will be considered crimes, and they will be cognizable, non-bailable and non-negotiable. The draft contains a provision of a maximum of three years in jail or up to Tk 5 lakh as fine for assaulting doctors in any health service-related issues. The act aims to avoid clashes between doctors and nurses and patients or their attendants. It will also protect health service providers from any incidents which arise regarding negligence or malpractice allegations. Section 21(5) the draft act provides that no doctor can be arrested without he permission from the Court.
However, critics argued that the draft medical care protection act giving healthcare providers “immunity” for negligence in treatment during “any act in good faith”. This provision has come under serious criticism from health experts, journalists, and lawyers, many of them indicating that this provision might provide a blank check to medical negligence and malpractice to the doctors, which will turn this act as a “draconian law” where common people will be deprived of justice.
The Medical profession is one of the noblest professions in the world, and understandably it is not easy to provide medical service in a overpopulated country like Bangladesh where the resources are scarce but the expectations are high. Apart from the sporadic rise of violence on doctors as well as medical negligence, what is more alarming is that there is a growing mistrust among the public towards the intent of doctors. Due to the infrastructural and human resource limitations, patients often have long waits to see a doctor, and there are delays in treatments due to the overload of patients. The violation of visiting hours, with too many relatives visiting patients at once, and the economic hardships of patients burdened with the grief of losing a loved one are all part of the root causes for violent reactions on doctors.
Nevertheless, violence and attacks on doctors cannot be tolerated under any circumstances. It is true that as of today, there is no law or procedural safeguard to prevent violence against doctors in Bangladesh. It is also true that laws cannot provide solution to a problem, if the mindset of the people are not ready to accommodate the change. In a country like Bangladesh where poverty and illiteracy is high, adverse events like death of patient, irreparable injuries or allegations of medical negligence are not at all accepted by the patients’ families and peers and often results in misperceptions which fume the anger to violence. There is a social need for awareness to change this perception. Most importantly, as general law abiding citizens of the country, we need to understand that doctors or medical service providers should not be held responsible for every single event of adversity or fatality, because most of the time (of these situations) it is beyond the control of a human hand, i.e. a doctor.
About the Author
 “Medical Negligence Laws and Patient Safety in Bangladesh: An analysis”, Journal of Alternative Perspectives in the Social Sciences( 2013) Volume 5 No 2, 424-442
 “Medical Negligence Laws and Patient Safety in Bangladesh: An analysis”, Journal of Alternative Perspectives in the Social Sciences( 2013)Volume 5 No 2, 424-442
 Philips India Ltd. vs. Kunju Punnu (1974) BLR 337 (Bombay High Court)
 Sidhraj Dhadda vs. The State of Rajasthan, AIR 1994 (Raj) 68