Published:  01:10 AM, 07 May 2021

Legal Protection for Medical Negligence in Bangladesh Context

Medical negligence refers not only to the negligence of doctors but also to the ancillary arrangements, nurses, hospital authorities, technicians, drug suppliers, and suppliers. The only reason for this is that there is no accountability anywhere. Although there is a law in the medical service to take remedial measures for various crimes, most people are not aware of it. As a result, the crime related to medical negligence is increasing day by day. Such negligence in the field of medical treatment and the occurrence of various crimes has become a daily occurrence in the context of Bangladesh. As mentioned of the constitution of Bangladesh, medical care is one of the basic needs of the citizens of the state, but the medical system has been in a state of extreme anarchy for a long time. "Negligence" is a vital part of the law of tort. To determine medical negligence or negligence petitioner should effectively set up four significant ingredients: a) Duty of care b) Breach of duty c) Causation and c) Damage

In Bangladesh, the right to health and medical consideration is guaranteed in the Constitution as a fundamental need of each citizen. Under the Constitution of Bangladesh, the right to get proper health and medical care isn't straightly perceived as the fundamental rights of a resident, however, it can be perceived as a part of the right to life which is ensured as the fundamental right of a citizen (Article 32). The preamble of our Constitution provides, it will be a basic point of the State to acknowledge through the democratic measure of a society.

Notwithstanding, the "right to health' and is likewise perceived as the fundamental principle of state policy under Article 15. It says that it will be a crucial duty of the state to achieve, through arranged monetary development, a consistent increment of profitable powers and a consistent improvement in the material and social way of life of individuals with the end goal of getting to its citizens.

Complaints can be filed against medical negligence in tort or civil cases, including harassment, defamation, and false temptation. But in our country, civil cases are quite complex and cost a lot of money to manage, which is difficult for the poor to raise. There are also complications in taking evidence. In such cases, the doctor or the person concerned has to be the witness. As a result, it becomes impossible to reveal the truth about the incident and remediation is not possible. The doctor advised them to do many tests at their first meeting. If prescribed tests have been done, then most of the test results are normal. It is a common misconception that doctors recommend additional tests. Naturally, the question arises why do they advise patients to undergo additional tests? The answer is very simple when a patient comes to a diagnostic center for a test with a doctor's advice, the patient is charged double the fair test fee and the name and address of the counselor are noted. Later, 40-50% of the charges collected from the patient were secretly brought to the doctor. The doctor also accepted the money without hesitation. Isn't it cheating or the negligence of doctors with patients?

The Bangladesh Penal Code, 1860 clearly states that if a person causes the death of another person through negligence or arbitrary action, that person shall be deemed to have committed an offense under Section 304 (a) of the Penal Code. If the patient dies due to negligence of the doctor, he will be liable (Section-304). In the case of Rashidullah v. State (21) DLR (609), it stipulates that reckless work means taking the risk of any dangerous work and performing the work with caution.

In addition, abortion-related offenses (section-314), and it is possible to get redress for offenses related to medical negligence (sections 323 to 328). In addition, under section 337, if death or security is disrupted due to reckless work or negligence, there is a maximum imprisonment of 3 months and a maximum fine of Tk 250. Section 337 also provides imprisonment for 6 months and fine of Rs 500 for injury due to negligence.

In these regards, there are a few impediments and challenges for medical negligence cases in Bangladesh that can't be disregarded. Some critical limits and difficulties are:

1.    Lack of governmental assets to follow up the medical negligence frequencies that generally happen in private and public hospitals of the country.

2.    Only a predetermined number of Non-Governmental organizations manage the issue of medical negligence frequencies.

3.    Lack of expertise among the appointed judges and the legal counselors to manage the prosecutions of medical negligence.

4.    Though the law of "tort" is accessible in Bangladesh but has no normal practice.

5.    Medical negligence occurrences are not under constant oversight rather, individuals and the government become concerned about it, it has been given importance through media.

6.    Lack of seriousness of general people, the rate of medical negligence increasing day by day.

7.    General people as a rule don't show a readiness to file a case against the clinics, hospitals, and doctors, catching that they are not on a level playing field.

8.    Only a couple of Non-Governmental Organizations provide "legal help" in regards to medical negligence cases.

9.    Litigation methodology in Bangladesh is a protracted cycle; it takes an extensive stretch to get a final judgment.

10.    There are a few laws in Bangladesh to relieve medical negligence events yet these have no productive execution.

The Constitution of Bangladesh as the incomparable law of the country has ensured the right to health of its resident in an exacting manner. The Supreme Court of Bangladesh is additionally able to play out its Constitutional obligation and to give remedy under constitutional law for medical negligence claims. Even though there are a few provisos in the current domestic laws and legal systems. Now it's time to turn back and should be conscious of identifying individuals' rights.

Shahriar Islam Shovon, Department of Law & Human Rights, University of Asia Pacific.

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