By Miss. Anika Mardiah Chowdhury

Nowadays medical negligence has become a popular topic of attention and discussion in many developed countries also many of them have enacted and established separate Acts and courts to provide legal relief on this.  However, in Bangladesh, there is no specific and comprehensive legislation yet to prevent medical negligence. As a result, the possibility of incidents of medical negligence mostly goes without any legal action often leads to violence, which consequently paves to a frustrating situation.

Medical Negligence and the Burden of Proof lie on whom?

The burden of proof lies towards the complainant if the negligence is alleged on part of the Doctor or either Hospital it is then his liability to establish and prove the negligence. If the complainant fails to prove negligence on part of the doctor or hospital authority after bringing the allegation then he will not get any legal remedy and there will be no damages and the claim of such person shall be dismissed. However, if the doctor alleges contributory negligence as a defense which means lack of reasonable care on part of the patient or patient’s family then the burden of proof shall be held upon the defendant means upon the doctor or the hospital authority.

Legal Remedies to redress Medical Negligence

  1. Remedies under Constitutional law:

 Article 32 of the constitution of Bangladesh states that“the right to life” as a fundamental right for its citizens. Furthermore, article 44 provides the enforcement of fundamental rights. Also, the Fundamental Principles of State Policy states that the State has been obligated to ensure the “basic necessities of life, including food, clothing, shelter, education and medical care under article 15 of the constitution of Bangladesh then article 18 provides improvement of public health as among its primary duties. Those rights ensure under the constitution can be exercised through article 102 of our constitution by filing the writ petition. Therefore, under the constitution, a citizen can claim redress for his right.

In the case of Dr. MohiuddinFarooque vs. Bangladesh & others, Writ Petition No. 1783 of 1999 the court treated it 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 also 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 the following case Prof. Dr. MridulKantiChakrabarty who was a teacher of University of Dhaka died at the LabAid Cardiac Hospital then a PIL filed by Advocate MonzilMorshed, The High Court Division summoned the accused doctor and awarded compensation of fifty Lacs taka to the patient’s family then the LabAid hospital immediately paid the compensation to the family of Professor.

According to section 23 of the following Act, if any medical practitioner or dentist is found guilty of negligence or misconduct in respect of his profession, the Council may refuse to permit registration of that person as the section deals with the additional register. The following Council may also direct to remove the name of any registered doctor or dentist from such Registration whether permanent or for a specified period for such professional misconduct. Section 5(a) of the Code of Medical Ethics provides if there is any gross negligence from doctors and dental practitioners in their duties towards their patients that may be regarded as misconduct and it would be then sufficient to justify the suspension or remove their names from the Registrar.

The criminal complaints for medical negligence can be filed against doctors alleging commission of offenses under Section 304A which states causing death by negligence or Sections 336 or 338 of the Penal Code, 1860 alleging rashness or negligence or act endangering life or safety or causing grievous hurt by the doctors which results loss of life or injury of varying degree to the patient or cause hurt. However, sections 80 and 88 of the Penal Code contain defenses for doctors as an accident in doing a lawful act or act done with good faith for accused of criminal liability.

As per Schedule II of the code of Criminal Procedure, any offense committed under section 336of the penal code, 1860 the offense shall be triable by session court and may arrest without warrant. On the first instance warrant shall be issued and under this section the offense is bailable and the court may give five years of imprisonment or fine or both. Then the offense committed under section 338 the suit triable by any judicial magistrate the same procedure also mentioned for an offense committed under section 304A of the Penal Code, 1860.

 The service of treatment can be treated as a contract so if there was any negligence on part of the doctor that may be treated as a breach of contract, therefore, aggrieved parties are entitled to claim one or more remedies against the opposite party or doctor as per Contract Act 1872. Furthermore, the aggrieved patient may also seek a temporary and permanent injunction under the Specific Relief Act, 1877 as against health professionals violating contractual and service terms.

Lastly, the doctor and patient relationships are made on the basis of faith. And one mistake of this profession can be the reason for the end one life or can make damage which is uncoverable. Law and its practice are needed not for all the cases but only for those cases in which the patients are the victim of medical negligence.

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