Society knows the phrase ‘medical negligence’. Though certain health care facilities in Bangladesh have innovative and state-of-the-art technology, a large portion of the population does not depend on them. Due of our health care providers’ negligence, many folks flee to other countries for better care. The Bangladeshi Constitution prioritizes health and medical treatment.
The Bangladeshi Constitution guarantees that all citizens have the right to health and medical treatment. Our Constitution guarantees health and medical treatment in various Articles. Medical negligence cases may benefit from judicial scrutiny. Any aggrieved individual with no other effective remedy may file a Public Interest Litigation (PIL) or Writ petition with the Honorable High Court Division. Medical negligence litigations in Bangladesh face significant obstacles that cannot be overlooked.
How is Negligence?
Tort law’s “negligence” section is important. In tort law, “negligence” denotes “more than mere carelessness” [Goldberg, J.C. and Zipursky, B.C., 2013]. Market fraud. Vanderbilt Law Review, 66.
L.B. Curzon defines “negligence” in the Longman Dictionary of Law as a breach of legal duty of care that caused unexpected damage to the claimant [Curzon, L.B. and Richards, P., 2007. The Longman Dictionary of Law. Pearson Education].
Furthermore, “negligence” was defined as “the omission to do something which a reasonable man guided upon those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do” [Blyth vs. Birmingham Waterworks Co. (1856)11 EX.78].
Negligence is carelessness, but Lord Wright stated in 1934 that “in strict legal analysis, negligence means more than heedless or careless conduct, whether in omission or commission: it properly connotes the complex concept of duty, breach and damage thereby suffered by the person to whom the duty was owing”.
In a negligence action, the successful claimant must prove three things: 1) that the defendant owed them a duty of care; 2) that they breached it; and 3) that they suffered damage that the law considers compensable [Lunney, M. and Oliphant, K., 2008. Tort law: text and materials. Oxford University Press].
Medical Negligence: Definition
Medical negligence or malpractice is an act or omission by professional health care providers, such as doctors, dentists, nurses, medical assistants, pharmacists, and others, that falls below the accepted standard of practice and causes patient injury or death.
A medical malpractice or negligence claimant must show four key elements:
According to Bal (2009), medical malpractice in the US involves experts owed a duty to exercise reasonable care, the claimant received compensable harm, and the behavior of the professionals caused the injury.Clinical orthopedics and allied research, 467(2), 339-347.
Problematic: when does duty of care begin? In Le Lievre v Gould, Smith LJ held that “a duty to take care did arise when the person or property of one was in such proximity to the person or property of another that if due care was not taken, damage might be done by the one to another” [Islam, M.Z., Medical Negligence in Malaysia and Bangladesh: A comparative study].
Introduction to Bangladeshi Medical Negligence
Though certain health care facilities in Bangladesh have innovative and state-of-the-art technology, a large portion of the population does not depend on them. Due of our health care providers’ negligence, many folks flee to other countries for better care. Newspapers and TV broadcasts inform the public of health care providers’ negligent behavior [Hoque, M.M.A. and Chowdhury, F.R., 2008. Medical Malpractice: in Quest of an Effective Legal Protection in Bangladesh. Journal of Medicine, 9(2), pp.87-89].
Ain O Salish Kendra, a major Bangladeshi human rights group, investigated 504 medical malpractice cases from June 1995 to September 2008. Most medical negligence lawsuits provide a bleak image of our health care system.
Bangladesh has unavoidable drawbacks. According to WHO, health spending should be $34 per person, but in Bangladesh it’s $5. The Bangladeshi doctor-to-nurse ratio is 1:0.48, compared to the recommended 1:3 [http://www.askbd.org/ask/wp-content/uploads/2014/02/Report-Medical-Negligence
General doctors also claim that two doctors’ organizations, Doctors’ Association of Bangladesh (DAB) (patronized by pro-BNP-Jamaat doctors) and Swadhinata Chikitsha Parishad (SWACHIP) (patronized by pro-AL doctors), are disrupting our health care institutions. Great physicians who are independent or in opposition to the governing party get the worst jobs.
The Constitution of Bangladesh guarantees every person the right to health and medical treatment. Some Articles of the Constitution guarantee health and medical treatment.
Health and medical treatment are not officially recognized as basic rights in Bangladesh’s Constitution, but they are a part of the right to life, which is protected under Article 32. The Constitution’s Preamble shows that a state’s goal is to protect human rights. Hossain Mollah (2014) critiques Bangladeshi judicial activism and human rights. International Journal of Law and Management 56(6):475-494.
The Constitution’s preamble states that the state aims to create a socialist society free from exploitation, ensuring rule of law, human rights, freedom, equality, justice, political, economic, and social security for all citizens.[Bangladesh Constitution Preamble].
The “right to health and medical care” is also the foundation of governmental policy under Article 15 of the Constitution. Article 15 of the Constitution states, “It shall be a fundamental responsibility of the state to attain, through planned economic growth, a constant increase of productive forces and a steady improvement in the material and cultural standard of living of the people with a view to securing to its citizens 1) the provision of the basic necessities of life, including food, clothing, shelter, education and medical Bangladeshi Constitution Article 15
According to Article 18 of the People’s Republic of China Constitution, “The state shall regard the raising of the level of nutrition and improvement of public health as moving its primary duties, and in particular shall adopt effective measures to prevent the consumption, except for medical purposes or for such other purposes as may be prescribed by law, of alcohol and other intoxication drinks and drugs which are injurious to health.”
Additionally, Article 21 of our Constitution specifies that citizens and public servants must respect the Constitution and laws, maintain discipline, execute public obligations, and preserve public property. (2) Every Republic employee must always serve the people. [18. Bangladeshi Constitution Article 21]
Constitutional Relief: Judicial Review or PIL
Medical negligence cases may benefit from judicial scrutiny. Any aggrieved individual with no other effective remedy may file a Public Interest Litigation (PIL) or other Writ petition with the Honorable High Court Division (HCD).
The High Court Division of the Supreme Court of Bangladesh has judicial review authority under Article 102 of the Bangladeshi Constitution. If the government violates its legal and constitutional obligations regarding health and medical care, the court can intervene and force it to comply [http://www.askbd.org/ask/wp-content/uploads/2014/02/Report-Medical-Negligence.pdf].
The right to sue (locus Standi) is essential for submitting judicial review (Public Interest Litigation is an exception). Without it, you cannot file judicial review with the High Court Division.
ii. While judicial review may not always assist an individual, it may help collectively address medical carelessness.
iii. Government non-cooperation in court cases is common.
The court cannot always force the government to respond within a certain timeframe.
Bangladesh medical negligence litigation limitations and challenges
Bangladeshi medical negligence litigations face various obstacles. Significant constraints and obstacles include:
I) Lack of government resources to investigate medical malpractice in private and public institutions.
II) Few non-governmental groups address medical malpractice.
III) Judges and attorneys lack medical negligence litigation knowledge.
IV) Bangladesh has the law of “tort” but no natural practice.
V) Medical malpractice is not always monitored; individuals and the government get worried if media coverage is significant.
VI) Public ignorance about medical incompetence.
VII) Doctors and hospitals prefer to negotiate with victims of medical malpractice because they fear litigation may hinder their professional operations.
VIII) Because they feel they are not treated equally, most individuals do not sue hospitals and physicians.
IX) Few non-governmental organizations provide “legal aid” for medical malpractice cases.
X) Bangladeshi litigation takes a long time to get a verdict.
XI) Bangladesh has various medical negligence legislation, however they are ineffective.
XII) Government non-cooperation in lawsuit and courts’ incapacity to force government to respond a reasonable time [http://www.askbd.org/ask/wp-content/uploads/2014/02/Report-Medical-Negligence.pdf].
In conclusion, medical malpractice in Bangladesh is a daily occurrence owing to a lack of accountability. We believe physicians have a moral obligation and pledge to defend our lives and health.
Due to profit motives, illegal motives, excess workload, poor management system, lack of knowledge about scientific invention, legal loopholes, people’s unwillingness to sue medical professionals, and other issues, some medical practitioners are negligent in their performance. Our citizens are becoming aware of and ready to sue medical malpractice cases that cause death or injury.
Bangladesh’s primary legislation, the Constitution, strictly protects citizens’ health rights. The Bangladesh Supreme Court is also inclined to provide constitutional remedies for medical malpractice allegations.
There are flaws in Bangladesh’s laws and judicial system, but the government is working to close them.
Medical personnel should also be aware of the legal ramifications of medical negligence and prevent problematic situations and lawsuits. Maintaining professional respect is always demanded.