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Medical Negligence: Law and practice in Bangladesh

Chapter One Introductory Chapter 1.1: Introduction Medical Negligence is the failure of a physician or other medical personnel to meet the standards of conduct for duties relating to the medical profession. Those standards are based on what a reasonable person with the requisite knowledge and skills would or would not do. Medical negligence occurs when the treatment provided by a health service provider (such as a hospital, doctor, dentist, pharmacist etc.) falls bellow an acceptable standard. Medicine is a complicated practice and health service providers are not expected to be perfect. Medical treatment in sometimes become unsuccessful and injuries can sometimes result. But that does not necessarily mean that there has been any negligence. Negligent treatment is that which goes beyond being a simple reasonable mistake or error. The first element in any medical negligence lawsuit is that of a duty owed to the patient. If there is no legal duty to act, a medical professional can stand by doing nothing while a person suffers, and still not be a negligent. Thus the first question to address in a medical negligence lawsuit is whether the medical professional owed any duty to the plaintiff or not. Often this question is easily answered. When a patient go to a doctor with a problem and the doctor agrees to treat the patient, the doctor has assumed a duty to treat the patient. The doctor has indicated that he or she has the appropriate training and skill to adequately care for the patient and has assumed a duty towards the patient. To take reasonable care, the health professionals are also under a common duty to take reasonable care for the safety and well being of the patient. Breaches of that duty may give


rise to claim damages. A court will often need evidence from medical specialists about correct procedures and usual safeguards followed in particular medical treatments before a decision can be made about whether or not a particular health professional has been so careless in providing that to a patient as to be considered negligent. The importance of negligence prevention through reducing risks, preventing harm and promoting best practice, rather than remedial cure through damages. Where remedial action is required a better coordinate response and the development of a more predictable and affordable system of redress was proposed, encapsulated by the suggested establishment. 1.2: Aims and Objectives of the Research I think every study must have some aims and objectives. So to prepare this Research paper we have some aims and objectives. After completing the research Paper correctly we shall able to find out the doctors negligence on medical treatment and also be able to take a legal action against the doctor’s medical malpractice. We shall also be able to find out the doctors rights and duties towards the patients and the rights and duties of the patients to their surgeons and when a doctor fails to provide proper care to his patient then what will be its consequences and what remedies are available for a victim of medical negligence. In a nutshell we shall able to know details about medical negligence. 1.3: Nature and Scope of the Research Every Research paper has nature and scope. So my Research paper is not beyond the nature and scope. As my selected topic for Research is “Medical Negligence: Law and practice in Bangladesh�, so it is related with analytical, historical, scientific, historical and systematical methods. The assigned topic is an important and a demandable topic for law students. Especially for those who wants to spend theirs life in human rights sector. 1.4: Research Methodology This assigned topic is very important one in our legal sector. This thesis has been done and published with more reference from books, journals, and internet and from some articles. This thesis paper is tort and human rights related subject matter. When I had started this research paper I had always looked for strong references and correct information. I have tried to enrich this Research paper by providing all necessary information. The scheme has also been improved and has been made much more methodical, analytical, historical, scientific To prepare the term paper I have used some methods and these are I collected some books which are related with my Research topic, I have also collected some news from the daily news papers of Bangladesh, I have also browse some websites from which I got some important data which are related with my Research topic. As my topic is related with medical negligence, so for the purpose of collecting data I had to go some hospitals. I have visited at Bangabandhu Sheikh Mujib Medical University hospital, Lab Aid Hospital (Dhanmondi), BIRDEM Hospital (Shahbagh), City Hospital (Muhammadpur). As my Research topic is a Human Rights perspective topic so I had to go to in N.G.O. institution. So I have visited at Ain O Salish Kendra (Lalmatia)


from where I got maximum information of my Research topic. There I talked to some officials who also provide me some information about my topic. 1.5: Limitation of the Research Every research study has some limitations. So this research monograph is not the exception of this limitation and reduced the scope of the study. The main limitation to prepare this thesis is time limitation. To make a fulfill thesis the time period is not sufficient. Another problem is that every body talks, write articles on “Medical Negligence” but there is no book from where we can informed about “Medical Negligence”. Therefore, it is difficult to collect materials in Bangladesh perspective. Though I have taken the help a Bengali book but as it is written in Bengali, so I have to face some trouble to make it in English. By going to make a research on “Medical Negligence: Law and Practices in Bangladesh” I have to face some medical term which are totally unknown to me. Beside these, there are also some negligible problems to make this thesis fruitfully. Chapter Two Fundamental Concepts of Medical Negligence

2.1: Definition of Negligence Negligence may be defined as the breach of a duty, caused by the omission to do something which a reasonable man (guided by those considerations which ordinarily regulate the conduct of human affairs) would do – or doing something which a prudent and reasonable man would not do. In other words, negligence may arise from non-feasance or from misfeasance. 1. Austin defines negligence thus – “In case of negligence, a party performs not an act to which he is obliged; he breaks a positive duty.1” 2. Actionable negligence consists in the neglect of the use of the ordinary care or skill towards a person to whom the defendant owes the duty of observing

1

Noshirvan H. Jhabvala, “The Law of Torts”, 25th Edition , p.162


ordinary care and skill, by which neglect the plaintiff has suffered injury to his person or property.2 3. Salmond considered ‘negligence’ as state of mind which was an element for liability for torts, in general, as an alternative to ‘intention’. It is, however, established that negligence is a specific tort1 if the following conditions are present, which must be established by the plaintiff(i) That the defendant was under a duty to take care towards the plaintiff to avoid the damage complained of; (ii) That there was a breach of that duty on the part of the defendant; and (iii) That the plaintiff has suffered actual damage and that the breach was the direct and proximate cause of the damage complained of.3 Thus, if a man walks across a crowd of people, carrying sharp edged tools in his hand, he is under a duty to ensure that he does no injury to those around him. He will have to be more careful than a man who merely carries an umbrella (even though this is nearly as bad in crowded cities today). – And, of man with the umbrella would have to be more careful than a man who carries nothing at all. 2.2: Essentials of a Suit for Negligence The burden of proving negligence is on the part of the plaintiff who alleges it. In order to succeed in an action for negligence, the plaintiff must prove the following five things: 1. That the defendant was under a legal duty to exercise due care and skill, - as there cannot be any liability for negligence unless there is a breach of some legal duty. 2. That the duty was towards the plaintiff. 3. That, in the circumstances of the case, the defendant failed to perform that duty, i.e. the duty to exercise due care and skill. 4. That the breach of such duty was the causa causans, i.e. the direct and proximate cause, of the damage complained of. If the causal connection between the negligent act and the damage is not direct, the damage is too remote, for which there is no remedy at law. 5. That the damage was caused on account of this breach of duty. The Bombay High Court has laid down that in an action for negligence against a doctor, the plaintiff has to prove three things, viz.(i) That the doctor was under a duty to take reasonable care towards the plaintiff, to avoid the damage complained of, or not to cause damage to the patient by failure to use reasonable care; (ii) That there was a breach of such duty on the part of the doctor; and (iii)

That such breach of duty was the real cause of the damage complained of, and such damage was reasonably foreseeable.4

2

Heaven vs. Pender, 1883 11 Q.B.D.507.

3

Ibid Philips India Ltd. V. Kunju Punnu, (1974), B.L.R. 337.

4


2.3: Definition of Medical Negligence

Medical negligence is a species of professional negligence and, as such, forms part of the law of tort. Medical negligence, or clinical negligence as it is more commonly known today, is concerned with claims for damages for injuries suffered by patients (and others) at the hands of doctors and other health care professionals. Unlike in other professional contexts, the law of contract plays little or no part in medical law. Other than in situations where the seeks treatment privately, patients do not enter into contracts with their doctors. 5 or, Medical malpractice is professional negligence by act or omission by a health care provider in which care provided deviates from accepted standards of practice in the medical community and causes injury or death to the patient.6 or, Failure of a physician or other medical personnel to meet the standards of conduct for duties relating to the medical profession. Those standards are based on what a reasonable person with the requisite knowledge and skills would or would not do. 7 2.4: Essentials of a Suit for Medical Negligence A person who alleges negligent medical malpractice must prove four elements: (1) A duty of care was owed by the physician; (2) The physician violated the applicable standard of care; (3) The person suffered a compensable injury; and 5

6

7

Pfizer Corp vs. Ministry of Health 1965 AC 512. Available on: en.wikipdia.org/wiki/Medical_negligence; last accessed on: 18/09/2010 Available on: www.california-personal-injuuy.com/medical-malpractice-legal-glossary/ medicalmalpractice-legal-glossarym.html; last accessed on: 18/09/2010


(4) The injury was caused in fact and proximately caused by the substandard conduct. The burden of proving these elements is on the plaintiff in a malpractice lawsuit. 2.5: Defences to an action for negligence The following three defences can be raised in an action for negligence, viz (A) Vis major, (B) Inevitable accident, and (C) Contributory negligence of the plaintiff. 2.5.1: Vis Major Vis Major (or act of God) is such a direct, violent, sudden, and irresistible act of nature as could not, by any amount of human foresight, have been foreseen, or, if foreseen, could not, by any amount of human care and skill, have been resisted. Thus, acts which are occasioned by the elementary forces of nature, unconnected with the agency of man or other cause, will come under the category of acts of God. E.g. storm, tempest, lightning, extraordinary fall of rain, extraordinary high tide, extraordinary severe frost. Etc. 8 The defendant had a series of artificial lakes on his land, in the construction or maintenance of which there had been no negligence. Owing to a most unusual fail of rain, so great that it could not have been reasonably anticipated some of the reservoirs burst and carried away four country barges. It was held that the defendant was not liable inasmuch as the water escaped by an act of God.9 2.5.2: Inevitable accident The second defense in an action for negligence is that of inevitable accident. Thus, A is lying drunk on a roadway. B approaches in a motor car round a bend in the road, but just before he reaches the point at which, under ordinary circumstances, he would first see a, sheet of newspaper is blown by the wind against his windscreen and materially obscures his view. He runs over A, and injures him. Here, A cannot succeed, it being a case of inevitable accident or misfortune.10 X was on a golf course as a spectator, and Y, who was not striking the ball in a game of golf, but was merely demonstrating a stroke to S’s brother, negligently struck X in the face with the golf club. In a suit by X against Y for damages, Y contended that by going to the golf course, X took the risk of such an accident. It was held that X was entitled to damages. This is not a case of sport or a game, but a regular business.11 2.5.3: Contributory negligence of the plaintiff 8

9

Noshirvan H. Jhabvala, “The Law of Torts”, 25th Edition ,p.174 Niochls v. Marsland, L.R. 2 Ex. Div. 1.

10

Noshirvan H. Jhabvala, “The Law of Torts”, 25th Edition , p. 175

11

Cleghorn v. Oldham, (1927) W.N. 147.


The third defence to an action for negligence is that of the contributory negligence of the plaintiff himself. Contributory negligence has been defined as “negligence in not avoiding the consequence arising from the negligence of some other person, when means and opportunity are afforded to do so”. The term negligence in this context does not, ordinarily, mean any breach of duty to another, but only failure to take reasonable care of one’s own self. Every man has a duty to look after himself, and he will have no remedy for injuries which he might have a voided by the use of reasonable care. As stated in an old case, “One person being in fault will not dispense with another’s using ordinary care of himself” 12

Chapter Three Principles of Negligence and Burden of Proof of it 3.1: Contributory Negligence Contributory negligence has been defined as “negligence in not avoiding the consequence arising from the negligence of some other person, when means and opportunity are afforded to do so”. The term negligence in this context does not, ordinarily, mean any breach of duty to another, but only failure to take reasonable care of one’s own self. Every man has a duty to look after himself, and he will have no remedy for injuries which he might have a voided by the use of reasonable care. As stated in an old case, “One person being in fault will not dispense with another’s using ordinary care of himself” 13 More recently, Lord Denning has distinguished ‘negligence’ and ‘contributory negligence’ as follows: “Negligence depends on a breach of duty, whereas contributory negligence does not, Negligence is a man’s carelessness in breach of duty to others. Contributory negligence is a man’s carelessness in looking after his own ---safety”. 14 1. The principle underlying the doctrine has been stated to application of the maxim “In pari delicto potior est condition defendantis”, which means that when both parties are equally to blame, neither can hold the other liable. But the more accepted view is that it is an application of the rule as to remoteness of damage.

12 131.

Butterfield v. Forrester, (1809), 11 East 90 Butterfly v. Forrester, (1809) 11 East 90.

142. Froom

vs. Butcher, (

1975) 3 All E.R. 520 (524) C.A.


2. At common law, contributory negligence of the plaintiff is a complete defence to an action for damages for negligence of the defendant, the burden of establishing it being on the defendant. 3. Contributory negligence is, however, no defence where the plaintiff was not bound to take such care as the defendant contends but has a right to assume that the defendant had done all things rightly and carefully. 4. Again, contributory negligence of the plaintiff is no defence if the defendant had a later opportunity than the plaintiff of avoiding the accident by reasonable care. 5. The soundness of the last opportunity test founded on Davles. Mann has, however, been questioned by the House of Lords in Admiralty Commissioner v. North of Scotland .Their Lordships quoted with approval the statement of the Law Revision Committee, 1939. “In truth, there is no such rule – the question, as in all questions of liability for a tortuous act, is, not, who had the last opportunity of avoiding the mischief, but whose act caused the wrong”.15 6. Another controversial topic relating to contributory negligence is whether the existence of a duty is necessary to raise the plea. The position has been authoritatively summarized by the Privy Council thus.16 (i) When negligence is alleged, as the basis of an actionable wrong, a necessary ingredient in the conception is the existence of a duty owed by the defendant to the plaintiff to take due care. But when contributory negligence is set up as a defence, its existence does not, generally depend on any duty owed by the injured party to the party sued and all that is necessary to be shown in order to establish such defence is that the inured party did not in his own interest take reasonable care of himself and contributed, by his want of care, to his own injury. The principle underlying the defence of contributory negligence is that where a man is part author of his own injury, he cannot call on the other party to compensate him in full. (ii)

In cases relating to ‘running down accidents’, however, the question of duty to take care in relation to the other party does, in fact, come in. The general principle in such cases is: “When two parties are so moving in relation to one another as to involve risk of collision, each owes a duty to the other to move with due care, and this is true whether they are both in control of vehicles, or both proceeding on foot, or whether one is on foot and the other controlling a moving vehicle.

7. In England, the doctrine of contributory negligence has undergone a great shock by the passing of the Law Reform (Contributory Negligence) Act, 1945, which has 15

Boy Andrews v. St. Rongvald, (1947) 2 A.E.R. 350(H.L).

16

Nance v. British Columbia Ry. Co. (1951) 2 All E.R. 448 (P.C).


introduced the principle of apportionment of liability in all cases of contributory negligence, which was before this Act confined to Admiralty proceedings only- After the passing of this Act, the common law rule which applied before, viz, that parties guilty of negligence had no claim has disappeared, and the Court has to assess the liability of both parties, and apportion the damages accordingly. 17 3.2: Contributory Negligence of Children The defence of contributory negligence is more difficult to make out against a child than against an adult. When the plaintiff is a child, he will not be disentitled to relief merely because he has failed to show as much care as a person of, mature age. Allowance must be made for his inexperience and infirmity of judgment 18. This rule is sometimes expressed in the form ‘contributory negligence of a is no defence. This rule however is not to be literally accepted, but only as meaning that what amounts to contributory negligence in a grown-up person may not be so in a child of tender years. 19 Hence the age and mental development of the child becomes relevant. 3.3: Burden of proof of Contributory Negligence The onus of proving affirmatively that there was contributory negligence on the part of the person inured rests, in the first instance, upon the defendant, and in absence of evidence tending to that conclusion, the plaintiff is not bound to prove its non existence. If the Court finds itself unable to discover to what extent the negligence of the plaintiff or that of the defendant contributed to bring about the accident, the defendant is entitled to succeed, for in pari delicto potiorest conditio defendants.20 A few decided cases on the doctrine of contributory negligence are given below. A police constable seeing the door of the defendant’s warehouse open after dark, and in order to see that everything was right, and in the execution of his duty, entered the warehouse and injured himself by falling into an unfenced sawpit inside.21 It was held that he had no legal right to enter, being neither a licensee nor an invitee, but that even assuming he had, the defendant was under no duty to make the place safe for him or to warn him of the danger.22 3.4: Doctrine of Identification

17 .

Durga Das Basu, ‘The Law of Torts’ 11th Edition, pp. 158-162

18

Lynch vs. Nurdin, (1841) 1 Q.B. 29.

19

Glasgow Corporation vs. Taylor, (1922) 1 A.C. 44.

20

Noshirvan H. Jhabvala, “The Law of Torts”, 25th Edition , p. 176

21

GREAT CENTRAL RLY.v. BATES (1921) 3 K.B. 578.

22

Ibid


The doctrine of identification can be explained thus: Where a child is in the actual custody of an adult at the time of the accident, the contributory negligence of the adult will disentitle the child from recovering damages, because the child is so identified with the adult that his negligence would amount to the negligence of the child. So, a special application of the doctrine of identification is to be met with where an infant, who is incapable of taking care of him and is in charge of an adult, suffers injury owing to the negligence of the third person, as well as the contributory negligence of the custodian. 23 At one time, it was though that the contributory negligence of an adult having actual custody of a child at the time of the accident would be a bar to an action by the child against the other party whose, negligence helped to bring about the accident. A child of five under the control of its grand mother was inured by a train owing to the contributory negligence of the grandmother. It was held that the child had to be identified with its grandmother, and so had no right of action against the company.24 But the doctrine of identification laid down in this case has been overruled since the decision in Mills v. Armstrong. An infant, of four years old, was crossing a road under the care of his grand father. He was struck by a motor omnibus and received permanent injuries to his left hand. The infant sued the Omnibus Company for damages sustained by him through the negligent driving of the omnibus belonging to the company for damages sustained by him through the negligent driving of the omnibus belonging to the company. The jury found that the accident occurred through the negligence of the driver of the omnibus and the contributory negligence of the grand father. It was held that, nevertheless, the infant could recover damages. 25 3.5: Res Ipsa Loquitur The rule that in action of negligence, the plaintiff must affirmatively prove negligence may cause hardship in cases where the plaintiff can prove the accident, but cannot show how it happened, the fact being solely outside his knowledge and within the knowledge of the defendant who causes it. In such cases, it is sufficient for the plaintiff to prove the accident and nothing more – for there is a presumption of negligence according to the maxim. “Res ipsa loquitur (the thing speaks for itself). Such a presumption, arises when the cause of the mischief was apparently under the control of the defendant or his servants. The accident itself constitutes reasonable avoidance of negligence in the particular circumstances. The application of the maxim “Res ipsa loquitur” has been explained thus: “Where the thing is shown to be under the management of the defendant or his servants, and the accident in such as, in the ordinary course of things, does not happen, if those who have the management use proper care, it affords reasonable evidence. In the absence of explanation by the dependant that the accident arose from want of care.26 23

Noshirvan H. Jhabvala, “The Law of Torts”, 25th Edition , p. 181

24

White v. N.e. Rly, (1888) E.B. &E. 719.

25

Mills v. Armstrong, (1888) 12 App. Cas.1.

26

Noshirvan H. Jhabvala, “The Law of Torts”, 25th Edition p. 171


Thus, the following are the three essential requirements of the application of the maxim: (i) The accident must be such as would not, in the ordinary course of things, have happened without negligence. (ii) The accident must be such as would not, in the ordinary course of things, have happened without negligence. (iii) There must be no evidence of the actual cause of the accident.27 3.6: Burden of proof of Negligence As a rule, the onus of proving negligence is on the plaintiff. He must not merely establish the facts of the defendant’s negligence and of his own damage, but must show that the one was the effect of the other First, where there is no contract, the plaintiff must prove facts inconsistent with due diligence on the defendant’s part. Where the balance is even as to which party is in fault, the one who relies on the negligence of the other is bound to turn the scale. Secondly, where there is a contract or personal undertaking, the plaintiff must prove such contract or undertaking, and also injury to himself. The mere fact of an injury happening, if unexplained, is evidence of negligence. It is for the defendant to prove that he himself was exercising due care. -Thirdly, under certain circumstances, the mere happening of an accident will afford prima facie evidence that it was the result of not taking due care; res ipsa loquitur (the thing speaks for itself). This is so when – (i) The injurious agency was under the management or control of the defendant; and (ii)

The accident is such as, in the ordinary course of things, does not happen if those who have the management use proper care. Thus, in cases involving res ipsa loquitur, there is a presumption of negligence, and it is for the defendant to rebut it.28 The Rajasthan High court has held that, in a case against a doctor for damages, if the plaintiff shows that the doctor was in fact negligent, but fails to prove that any loss or injury was caused to him by such negligence, he cannot be awarded any damages, and his claim will be dismissed.29 Chapter Four 27

Ibid, p.172

28

Noshirvan H. Jhabvala, “The Law of Torts”, 25th Edition, pp. 165- 166

29

Sidhraj Dhadda v. State of Rajastan, A.I.R. 1994 Raj. 68;


Places of Medical Negligence and Consequence of Medical Negligence

Medical malpractice is professional negligence by act or omission by a health care provider in which care provided deviates from accepted standards of practice in the medical community and causes injury or death to the patient. Standards and regulations for medical malpractice vary by country and jurisdiction within countries. Medical negligence may take place in public hospitals, or in a private hospital or in a private clinic etc. I a nut shell medical negligence may took place in any place of a country where there is an arrangement for medical treatment. 4.1: Medical Negligence in public Hospital A public hospital or government hospital is a hospital which is owned by a government and receives government funding. This type of hospital provides medical care free of charge, the cost of which is covered by the funding the hospital receives. Most hospitals worldwide are public. As most of the people of this country are poor and their economic condition is not good. So for taking treatment they depend on public hospital. But the condition of the public hospitals is not good. The doctors, nurse and the stuffs of the public hospital, all are involved in corruption. They do not do their duty properly. That means the doctors of the public hospitals are not found in their duties. The nurses are also not attentive in their duties. The stuffs are not also do their duty properly .The want money or Brive from the patients. Particularly the surgeons always neglect the patients. Some surgeon tells their patient to go his private chamber. The doctors of the public hospital do not think the patients as human. They always neglect the patient. For example, Omar Faruk, 24, son of Abdul Zabbar of Bazuriya village under Bochaganj upazila of Dinajpur, died due to alleged negligence of doctors at Dinajpur Medical College and Hospital. Faruk was admitted to the hospital on Thursday evening as he took poison. Faruk's relatives alleged he died at about 4:30pm yesterday due to the negligence of the doctors.30

30

Available on: http://www.thedailystar.net/newDesign/news-details.php?nid=143251, last accessed on: 02/11/2010


This is not a single example of the doctor’s medical negligence in public Hospital. There are thousands of examples which shows the prove of medical negligence of the doctors in public hospital. 4.2: Medical Negligence in Private Hospital A private hospital is a hospital owned by a for-profit company or a non-profit organization and privately funded through payment for medical services by patients themselves, by insurers, or by foreign embassies. The citizens of this country who have not confidence in public hospitals of this country and want a better service from a surgeon, they only go to a private hospital. But the conditions of the private hospitals are not good. The doctors, nurse and the stuffs of the public hospital, all are involved in corruption. They do not do their duty properly. That means the doctors of the private hospitals are not taking care of their patients properly. The nurses are also not attentive in their duties. The stuffs are not also do their duty properly .The want money or Bribe from the patients i.e. Baksheesh. That’s why the V.I.P and the people who has a lot of money for a better treatment they go to abroad. In private hospitals, though the patients expend their pocket money but are not getting proper service from their surgeons. In this stage, a true fact will say about the medical negligence in Bangladesh. On October 29, 2007, when Bangladeshi software engineer Masum P. Mohammad, flew back to Bangladesh to see his ill father struggling for life at the Central Care Unit (CCU) of Lab Aid Cardiac Hospital, he was in shock.31 Masum alleges that when he saw his father lying on a bed, full of blood. Then he asked the nurse to show him where he was operated, and he was speechless to see the unhygienic condition where his father was put in. He stood there for the longest moment, not knowing what to say. Masum’s father Late A.K.M Fazlum Haq was admitted at LabAid on October 25 under the treatment of Dr Prof. Baren Chakraborty, after he was struck by a sudden chest pain. After Haq had a massive heart attack on October 26, he was given injection and later a ring was put around his heart on October 27. Later that week, Haq’s chest x-ray revealed dark areas over the lung, after which Prof. Ali Hossain was involved for the lung treatment. ‘On November 2 that day, Hossain told to Masum that, food was stuck in the patient’s lung and he wants a Bronchoscope immediately.’ 32 After the Bronchoscope Prof. Hossain provided cough samples for the Tuberculosis (TB) test in two different diagnostic centres-one in LabAid, and another in Monowara Diagnostic, at Panthopath, Dhaka. Three days later the result was completely different in the two hospitals.Masum alleges that the LabAid results showed that his father has not have TB, and the Monowara Diagnostic test result showed that the report was actually positive!. 33 31

Available on: http://www.newagebd.com/2008/feb/29/feb29/xtra_cover.html; last Accessed on: 16/10/2010

32

Ibid

33

Ibid


Masum explains that later they also learnt that his father had suffered from massive brain injury right after being admitted to the hospital, which was not detected by any of the doctors. ‘When he had a heart attack earlier, blood was stuck in his brain. So, he was not being treated for his brain injury during all these days. 34 Masum says that his father’s TB test was sent on November 3, 2007. He asked that why did it take so long to send the TB test for diagnostic, and why did it take so long to detect this TB? Masum also alleged that even the TB diagnosis result was wrong. Masum also told when his father was given a medication; his father could not recognize them anymore. At that time they requested Prof. Chakraborty to call a neurologist to check his father’s brain, but again he did not bother to listen to him. Two days later, on November 11, his father was announced dead.35 ‘Masum’s story is nothing exceptional,’ 36 says Dr Quamruzzaman who heads the Dhaka Community Hospital in Malibagh and has himself been a victim of medical negligence through which he lost a perfectly-functioning kidney. ‘We have countless other cases of medical negligence and ignorance. But, it is important to realize that one of the biggest flaws of our health care system is that we have no accountability what so ever.’ Indeed, Masum’s case is not an isolated one. According to an investigation of a Dhaka-based NGO, Ain-o-Shalish Kendra, between January to October 2007 alone, there were over 76 death cases reported to be caused by medical negligence.37 4.3: Medical Negligence in Private Clinic, etc. In Bangladesh, clinical negligence is a regular phenomenon. Every year hundreds of people die due to clinical negligence in Bangladesh. Most of them are child and woman. As, it takes much expense to treat in private clinic and as the public hospitals are not providing well services in our country. So for getting a better service the people of this country, by finding no other alternatives are bound to go to a nearest private clinic. But in spite of great expense the people of this country are becoming the victims of medical negligence. The surgeons, the nurses and the stuffs of the hospitals are mainly liable for clinical negligence. In this stage, I am referring a true fact about medical negligence in private clinic of Bangladesh. This fact will say about the clinical medical negligence in Bangladesh. 34

Daily New age, 11th may 2007, Xtra Cover; Ref: http://www.newagebd.com/2008/feb/29/feb29/xtra_cover.html 35

36

37

Ibid Ibid Ibid


A Pregnant housewife Nayan Begum from Chanpur village of Bhairab upazila was rushed to the Sadek Medical Hall in Bhairab town with severe pain in her stomach. On her arrival at the hospital, they were relieved to find that the owner of the clinic ‘Doctor Sadek’ was one of the attending doctors. He insisted that she deliver the baby immediately. ‘Without any proper investigation of what the cause of the pain might be,’ he told the victim that he will have to deliver the baby, dismissing our suggestions that perhaps he should do an ultrasound,’ says Nayan’s daughter Mili Begum, a third honors student at Dhaka’s Eden College.38 She was instantly taken to a dirty, dark room in the medical facility used for delivery purposes. The doctor insisted that none of her female relatives who accompanied her to the hospital be in the operating theatre with her. She was already very nervous. Mili says that when she was wheeled inside, she was asked to close her eyes and not given any anesthetics or pain killers to ease her delivery process. Mili also told that initially, doctor Sadek had tried to use his spiritual powers to deliver the baby. But when his spiritual powers were of no use and ma’s situation was getting worse, he made a forced delivery attempt on her. In trying to forcefully deliver the baby, he caused severe head injuries to the fetus using a sharp blade. My mother was screaming in pain as she was subject to blade swipes on her internal organs by an unskilled hand. My mother also started to bleed profusely. 39 When Nayan’s family discovered her in such dire condition, they immediately rushed her to a hospital in Dhaka. On April 19, the baby died at a hospital in Dhaka. Luckily, Nayan had escaped with her life. Mili said that her mother was in a crazed state when she had recovered always asking about the baby. The baby was a boy and my mother kept on asking every one where her son was.40 In this stage, I am referring another true fact about medical negligence in private clinic of Bangladesh. This fact fact will say about the clinical medical negligence in Bangladesh. Khokan is an inhabitant of Dinajpur, who admit his wife at Janata Clinic, Dinajpur on 14 th October. His wife was a patient of fiver. He was informed from clinic that his wife is attacked by typhoid. She was under treatment at that hospital for 5 days. On 18 th October she felled oxygen problem. But at that clinic, oxygen was not available. The duty nurses of the clinic make a communication with Dr. Saidur Rahman. Then Mr. Rahman instructs them to send her at the Dinajpur Medical College for removing her oxygen problem. At about 8.00 pm in the way of hospital.41 But according to the Schedule C of the Medical Practice and Private Clinics and Laboratories (Regulation) Ordinance, 1982 the following stuffs must be present in a private clinic a. one registered medical practitioner for every bed round the clock 38

Available on:http://www.newagebd.com/2007/may/11/may11/xtra_cover.html; last Accessed on: 16/10/2010

39

The Daily New Age, 11th May, 2007, Xtra cover

40

Ibid

41

Chikitshai Obohela, Ain O Salish Kendra , December, 2008, p. 136


b. Two nurses for every 10 beds round the clock c. Two sweeper for every 10 beds round the clock But in that clinic it was totally absent. This is also a violation of the Medical Practice and Private Clinics and Laboratories (Regulation) Ordinance, 1982. But the concerned authorities do not keep their attention regarding this matter. Finally it can be said that the victims should be properly compensated for their suffering. When a person places themselves under medical care, they place their entire welfare in the hands of another. When things go wrong, the consequences can be serious. Medical Negligence can lead to physical, emotional and personal trauma, as well as loss of earnings. 4.4: Consequence of Medical Negligence Medical malpractice is professional negligence by act or omission by a health care provider in which care provided deviates from accepted standards of practice in the medical community and causes injury or death to the patient. Standards and regulations for medical malpractice vary by country and jurisdiction within countries. The consequences of medical malpractice can be deadly. When the physicians fail to do their jobs correctly, this may causes a harmful result for the patient and for his family. The consequence of medical negligence may verities, such as the patient may become injured, or he may die or infirm or he may lose any one organ of his body or he may face pecuniary loss or damages etc. Most often the consequence of medical negligence becomes very deadly. In a statistic by Dhaka based N.G.O. named Ain O Salish Kendra, made a list of 504 persons of the victims of medical negligence from year1998 to 2008 on the basis of the news of the daily news papers. Where it is shown that about 465 persons dies as a result of medical negligence.42 About 30 persons become in crippled for medical negligence 43 and rest of the persons lost their kidneys, eyes or any one of the organs of their body.

Chapter Five Who are liable for Medical Negligence and who are victims of it 5.1: The persons who are liable for Medical Negligence Medical malpractice is professional negligence by act or omission by a health care provider in which care provided deviates from accepted standards of practice in the medical community and causes injury or death to the patient. Standards and regulations for medical malpractice vary by country and jurisdiction within countries. All the persons who are involved in treatment matters are liable for medical negligence. Particularly the doctors, nurses, stuffs of the hospitals, hospital management or authority etc. are liable for medical 42

Chikitshai Obohela, Ain O Salish Kendra , December, 2008 pp. 150-185

43

Ibid


negligence. In short, those persons who do not care a patient in times of his disease are liable for medical negligence. In this chapter I’ve tried to make a list of the persons who are liable for medical negligence and are the victims of medical negligence. 5.1.1: Doctor Mainly the doctors or surgeons are liable for medical negligence. They do not do their duty properly. Every year hundreds of people become the victim of medical negligence by the surgeons. In a statistic by Dhaka based N.G.O. named Ain O Salish Kendra, made a list of 504 persons of the victims of medical negligence from year1998 to 2008 on the basis of the news of the daily news papers. Where it is shown that about 492 persons dies as a result of medical negligence of the surgeons. 44 Doctor’s medical negligence may take place in any public or private hospitals of Bangladesh even in the house of the patient or in the chamber of a doctor. Most often, medical negligence take place in public hospitals of Bangladesh. 5.1.2: Nurse Not only the doctors of our country are liable for medical negligence but also the stuffs of the hospitals of our country are also equally liable for medical negligence. Most of the time the nurses remain in the hospitals to do their duty. They act in place of the doctors. They are engaged to take care of a patient. They have to give medicine to a patient regularly. But most of the nurse does not do their duty properly. When a patient needs a nurse in the time of taking medicine, they are not found. Without money they are not interested to serve the patients properly. They want extra money from the patients. In a statistic by Dhaka based N.G.O. named Ain O Salish Kendra, made a list of 504 persons of the victims of medical negligence from year1998 to 2008 on the basis of the news of the daily news papers. Where it is shown that about 8 persons dies as a result of medical negligence of the surgeons.45 5.1.3: Stuffs of Hospitals, etc. Not only the doctors and the nurses of our country are liable for medical negligence but also the stuffs of the hospitals of our country are also equally liable for medical negligence. The maximum stuffs of the country are corrupted. They do not do their duties properly. Their manner of speaking to the patients is not also good. Most of the stuffs want extra money from the patients. Without money they are not interested to serve the patients properly. In a statistic by Dhaka based N.G.O. named Ain O Salish Kendra, made a list of 504 persons of the victims of medical negligence from year1998 to 2008 on the basis of the news of the daily news papers. Where it is shown that about 4 persons dies as a result of medical negligence of the medical stuffs.46

44

Chikitshai Obohela, Ain O Salish Kendra , December, 2008 pp. 150-185

45

Chikitshai Obohela, Ain O Salish Kendra , December, 2008 pp. 150-185

46

Ibid


Tajnin Sultana who is a baby of one and half years old. Her parents admitted her at that hospital for a surgery in her mouth as she is a patient of talukata. On 07/11/2010 47 her parents admitted her at that hospital for the purpose of operation. They have come from Brahman Baria. During time of admission, as whole environment of the hospital was unknown to her, the baby started crying. At that time the stuffs of the hospital made a rough conduct with her even with her parents. They also threatened the innocent baby. It is also mentionable here that the hospital treat the babies without any cost who are the patients of talukata. But the baby’s parents paid 60,000 tk. for her operation. In spite of paying tk.they did not get redeem from their rough conduct. This is a glorious example of the negligent of the Hospitals stuffs.48 5.2: Victims of Medical Negligence One who is harmed or killed by a doctor or a surgeon or by a nurse or by a stuff of the hospital or by the management of the hospital is called a victim of a medical negligence. That’s means whoever become an injured person by aforesaid persons shall be treated as a victim of medical negligence. The victims of the medical negligence may be a woman, the children, the students, the politicians, the lawyers, the businessman, the teachers, the journalists, the actors, the actress and the painters etc. In short, those who take medical treatment from hospital or from any other places may be the victim of medical negligence. But in most cases, women and the children becomes the victim of medical negligence. 5.2.1: Women For the reason of socioeconomic condition of Bangladesh the Women of this country are treated weak and dependant to others. That’s why they are becoming oppressed in every sectors of the country. In 2008, there were 518 cases of violence against women in Bangladesh, according to a report released by Ain O Salish Kendra, a human rights organization. Of the victims, 172 women were killed over dowry disputes and 246 through domestic violence, while 83 were killed after being raped. The list includes 17 female domestic helpers. Furthermore, 367 more women were raped and eight of them committed suicide during the one-year period. Two domestic helpers also committed suicide. Also, 20 women fell victim to punishment according to Fatwa, or religious edicts by religious village leaders.49 Medical sector is not exception to this. Large number women are becoming the victim of medical negligence. In a statistic by Dhaka based N.G.O. named Ain O Salish Kendra, made a list of 504 persons of the victims of medical negligence from year1998 to 47

48

49

A case study conducted by me at the City Hospital on: 07/11/2010 Ibid

Available on: http://www.upiasia.com/Blogosphere/williamgomes/20090222/victims_of_brutality_women_in_bangladesh/; last Accessed on: 09/11/2010


2008 on the basis of the news of the daily news papers. Where it is shown that about 165 woman dies as a result of medical negligence of the surgeons of Bangladesh. Maximum medical negligence occurred with the women in times of delivery. A glorious example of medical negligence is given here where the victim is a woman. 50 5.2.2: Children The children are considered as the future of a country. But in our country becoming the oppressed by the major persons. In Bangladesh a large number of children are deprived of their basic human rights due to unacceptable health, nutrition and education as well as social conditions. In addition, children are exposed to severe forms of physical and mental violence at home, in the work place, in institutions and other public places. The nature and extent of violence against children irrespective of age, sex and class has been increasing day by day. On the whole, our children are not safe despite efforts made by government and non-government organizations in ensuring the rights of the children. Broadly, violence against children can be defined to include physical, emotional or psychological violence or threat of violence against children perpetuated by individuals, as well as by institutions or society at large. Depriving children of basic necessities of life, health care and education, so much widespread in a developing country like Bangladesh, are encompassed by this holistic definition.51 Though there is a debate regarding the age of a child. But generally the persons who are between the ages of 16 are treated as child. As the children of this country are totally dependent on their parents and also on other persons of the society. That’s why the children of this country are becoming the victim in every sphere of the society. In a statistic by Dhaka based N.G.O. named Ain O Salish Kendra, made a list of 504 persons of the victims of medical negligence from year1998 to 2008 on the basis of the news of the daily news papers. Where it is shown that about 146 children dies as a result of medical negligence of the surgeons.52 5.2.3: Students The students are considered as the future of a country. In our country all the achievements are acquired by the leading of the students. But the students of our country are not beyond the oppressed. They are becoming the victim in every sphere of the society. In a statistic by Dhaka based N.G.O. named Ain O Salish Kendra, made a list of 504 persons of the victims of medical negligence from year1998 to 2008 on the basis of the news of the daily news papers. Where it is shown that about 100 students dies as a

50

Ibid

51

Available on: http://www.odhikar.org/report/pdf/child.pdf; last Accessed on: 09/11/2010

52

Chikitshai Obohela, Ain O Salish Kendra , December, 2008 pp. 150-185


result of medical negligence of the surgeons. 53 A glorious example of the medical negligence to a student is Rubel’s case. Where he died for the negligence of the doctors.54 5.2.4: Politicians, etc. The politicians play a vital role in a country. They are the social reformist in a society. But they are also not the beyond the medical negligence. Every year a numerable politician for the fear of medical negligence is going to abroad for taking treatment. As they do not believe the surgeons of our country. In a statistic by Dhaka based N.G.O. named Ain O Salish Kendra, made a list of 504 persons of the victims of medical negligence from year1998 to 2008 on the basis of the news of the daily news papers. Where it is shown that about 10 politicians dies as a result of medical negligence of the surgeons. 55 A film star named Manna died for the medical negligence on 17 th February in 2008 at United Hospital Dhaka on Sunday afternoon.56 He was also a member of Zia Shangskritic Sanghatan.

Chapter Six Rights and Liabilities of Doctors and Patients 6.1: Rights of the Patients A patient's rights occur at many different levels, and in all specialties. When a patient go to a doctor or a hospital there arise some rights of the patient. In 2003 a lift let is published by the Ministry of Health and Family Welfare. In that lift let the following rights were include as the right of the patient. 1. The right to receive information from physicians about the services 57 2. The right to safe and continuity of health care58 3. The right to confidentiality59 4. Right to get respect and dignity60 5. Right to share idea61

53

Chikitshai Obohela, Ain O Salish Kendra, December, 2008 pp. 150-185 Ibid, pp.186-187 55 Ibid 56 Available on: http://www.highbeam.com/doc/1G1-174942758.html; Last Accessed on: 03/11/2010 57 Chikitshai Obohela, Ain O Salish Kendra , December, 2008 p.98 58 Ibid 59 Ibid 60 Ibid 61 Ibid 54


6. Right to get redress62 7. Right to inform the highest authority when the rights are violated. 63 8. Right to choice treatment and the method of family planning 64 9. Right to get all documents relating to treatment 65 10. Right to receive all information about the treatment.66 Generally all states have recognized these rights as the right of the patient. For example, The American Medical Association (AMA) outlines fundamental elements of the doctorpatient relationship in their Code of Medical Ethics. These rights include the following: 1. The right to receive information from physicians and to discuss the benefits, risks, and costs of appropriate treatment alternatives 2. The right to make decisions regarding the health care that is recommended by the physician 3. The right to courtesy, respect, dignity, responsiveness, and timely attention to health needs 4. The right to confidentiality 5. The right to continuity of health care 6. The basic right to have adequate health care.67

Patient's Bill of Rights The Consumer Bill of Rights and Responsibilities was adopted by the US Advisory Commission on Consumer Protection and Quality in the Health Care Industry in 1998. It is also known as the Patient's Bill of Rights. The summary of The Patient's Bill of Rights is given bellow: 62

Ibid

63

Ibid

64

Ibid, p.98

65

Ibid

66

Ibid

67

http:// www.Emedicinehealth.com/patients_rights /article_em.htm


The Patient's Bill of Rights was created to try to reach 3 major goals: 1. To help patients feel more confident in the US health care system; the Bill of Rights: • • •

Assures that the health care system is fair and it works to meet patients' needs Gives patients a way to address any problems they may have Encourages patients to take an active role in staying or getting healthy

2. To stress the importance of a strong relationship between patients and their health care providers 3. To stress the key role patients play in staying healthy by laying out rights and responsibilities for all patients and health care providers This Bill of Rights also applies to the insurance plans offered to federal employees. Many other health insurance plans and facilities have also adopted these values. Even Medicare and Medicaid stand by many of them.68 So, finally we can say that though there exist different name regarding the rights of the patient but these are part and parcel of each other and are same. 6.2: Duties of the Patients Duty to participate in a “healthcare jurisdiction” The patient should ensure that he is a recognized member of an institutional or social form of healthcare provision (what I will for the purposes of this paper call a “healthcare jurisdiction”). For instance, he should not live intentionally outside society’s margins and then expect to be brought within the jurisdiction simply to get free healthcare. This is a conditional imperative only, of course: one has no absolute obligation to join the club, but membership of the club is a necessary condition of access to its benefits. Doubtless, in some jurisdictions it is not always easy to get into the club; this proposed duty applies only where “entrance” is a realistic possibility and where a meaningful minimal threshold of public healthcare provision is available.69 Duty to uphold his own health The patient should preserve and promote his own health and well-being so far as is reasonably opens to him to do so. For instance, he should follow a responsible lifestyle that does not put his health avoidably at significant risk; he should follow health promotion guidelines; he should take account of the risk factors affecting him, including what he can reasonably know of his own family history.70 68

Available on: http//cancer.org/Treatment/FindingandPayingforTreatment/UnderstandingFinancialandLegalMatters/patientsbill-of-rights, last accessed on: 26/10/2010 69

70

Available on: http://jme.bmj.com/content/33/12/689.full, last accessed on: 26/10/2010 Ibid


Duty to protect the health of others The patient should avoid being a source of ill health for others within the same health jurisdiction. He should promote the health and well-being of his own dependants and he should not engage in, promote, or needlessly tolerate practices that are harmful to health. 71 Duty to seek and access healthcare responsibly The patient should act responsibly regarding when and how he seeks healthcare. For instance, general practice surgeries already expect that patients with non-urgent conditions should accept the need to wait for an initial primary care appointment on a later day. If it is feasible for him to present himself at the surgery, he should not request a home visit. The patient also has a duty to be courteous and tolerant when attending healthcare institutions, including accident and emergency departments, as part of taking responsibility for the reasonableness of his own expectations of care. He should courteously respect all healthcare personnel, including non-clinical and administrative staff. 72 Duty of truthfulness The patient should be truthful during the consultation and history-taking, thereby inter-alias helping the achievement of a realistic diagnosis. For instance, he should divulge everything that is relevant, and he should avoid embellishment and evasion. 73 Duty of compliance The patient should comply with his clinical management and medication unless he has good reason to think that these have not been properly arrived at (in which case he should declare that view and if necessary report it to competent authorities). 74 Duty of inpatient conduct If he is required to stay as an inpatient during the course of his treatment, the patient should be a responsible member of any inpatient community in which he finds himself. For instance, he should limit his noise and disturbance of others to the necessary minimum. 75

Duty of recovery or maintenance During and after treatment, the patient should wherever possible promote his own recovery or, where this is unrealistic (for instance, in the case of chronic illness), try to maintain a reasonable quality of life.76 71

Ibid

72

Available on: http://jme.bmj.com/content/33/12/689.full, last accessed on: 26/10/2010

73

Ibid

74

Ibid

75

Ibid

76

Available on: http://jme.bmj.com/content/33/12/689.full, last accessed on: 26/10/2010


Duty of research participation When certain strict conditions apply, chiefly concerning the therapeutic equivalence of all treatments he is likely to receive in this context, the patient should take part in clinical research relevant to his treatment when he is asked to do so. 77 Duty of citizenship Finally, the patient should whenever the opportunity arises promote the healthcare jurisdiction that he has accessed—that is, appropriately support it beyond simply participating in it for the benefits of membership (as in duty no. 1). For instance, he should pay his relevant taxes in full and on time; and he should support only those political parties that credibly uphold the jurisdiction.78 6.3: Rights of the Doctors A doctor has the following rights: 1. Right to privacy79 2. To know about the patients life-style, particularly if it has an impact on your SCI or complications from the injury, or proposed treatment.80 3. To withdraw from giving treatment to a patient81 ifa) If the doctor himself is not well or free.82 b) Doctor may refuse to give fresh treatment to a patient if he has had a bad experience in the past. c) He cannot be compelled to treat a patient in odd hours. That is at hours other than those ear-marked by him for his profession.83 d) There is no legal obligation to answer a call to visit the patient at his or her place of residence.84 e) Doctor treats a patient in emergency on ethical grounds. It does not mean that he has accepted the patient. He may advise that patient to go to some hospital or a specialist for

77

Ibid

78

Ibid

79

Available on: http://www.expresshealthcaremgmt.com/20021231/focus4.shtml last accessed on: 25/10/2010

80

Ibid

81

Available on: http://www.expresshealthcaremgmt.com/20021231/focus4.shtml last accessed on: 25/10/2010

82

Ibid

83

Ibid

84

Ibid


further treatment.85 f) If a patient does not agree with the method of treatment or fee asked, doctor may refuse to treat the patient.86 g) In his honest opinion, if a doctor feels that he is not in a position to treat a patient because of non availability of certain facilities, instruments, medicines, staff etc. he may refer the patient to a suitable place.87 Besides a Doctor have the following general rights. These rights of doctor’s are shortly described here: Selection of drugs In some diseases, more than one medicines are effective and the decisions as to which of them should be prescribed is the absolute right of the doctor. Here doctor applies his own knowledge, experience and skill, over and above giving consideration to theoretical effects of the medicine.88 Selection of method In medical science, more than one type of treatment are approved and available for a particular disease. A doctor may adopt any one of them. For example, the removal of gall bladder (cholecystectomy) can be performed through various incisions, with the choice of incision depending on the doctor based on his experience. Moreover, in a surgery, from anesthesia to stitch thread, everything is to be decided by the surgeon only. 89 Investigation It is not always possible for a doctor to make certain diagnosis only from clinical examination of the patient. Additional laboratory tests, X-ray, sonography etc., may be required. The doctor is the best judge to decide about number and type of investigations to be carried out. Some doctors insist for a particular laboratory or X-ray clinic as in his opinion their reports are perfect and reliable. Of course patient might take it the other way, so a doctor may insist but should not over insist. In emergencies, the doctor has wider discretion about the treatment.90 Medico-legal case A doctor has a right to take any medical case without hesitation. At the same time, as a duty bound citizen, he is supposed to inform the police about such case as early as possible. 85

Ibid

86

Ibid

87

Ibid

88

Available on: http://www.expresshealthcaremgmt.com/20021231/focus4.shtml last accessed on: 25/10/2010

89

Ibid

90

Ibid


In the case of “Parmanand Katara” and the Union of India (1989 Supreme Court P.2039), the Supreme Court has said, “Doctors should boldly and bravely assert their ethical and legal duties and their right to carry on their profession which is their fundamental right as recognized by Article 19 of the Constitution of India. Further we are of the view that every doctor wherever he is within the territory of India should forthwith be aware of this position and therefore, we direct that this decision of ours shall be published in all journals reporting decisions of this court and adequate publicity highlighting these aspects should be given by the national media as also through the Doordarshan and the All India Radio.” 91 Right to delegate power A patient may be under the treatment of a doctor, but both treatment and care is not a one man show. A doctor may need help of other doctors, nurses, technicians and other qualified staff. So the doctor has to delegate some power to other qualified persons and it doesn’t mean negligence.92 Visit The doctor is not bound to honor every visit call, especially at odd hours. It is expected that a doctor would visit a patient, who is under his treatment and whose condition is worsening. In this sensitive matter, a doctor should take decision according to time, place and circumstances.93 Medical Record As a patient’s medical report is prepared by the doctor on his own stationary, it becomes doctor’s property. Doctor may not disclose it to the patient. If, in his opinion, the disclosure is not in patient’s benefit, he may, on the other hand, disclose the record as a whole or part of it in public interest under some statute.94 Fees The doctor has a right to recover his fees from the patient, whom he has given treatment. Often the patient refuses to pay fees after completion of treatment and the doctor, just to recover the fees, does not discharge the patient or tries to keep some valuable property of the patient in his possession. This is a crime. The only way to recover the fees is a civil suit. To avoid this problem, doctor should explain to the patient about approximate expenses of the treatment and may take part of it in advance and remaining in installments. 95 To end, medical profession is a very respectable profession. Doctors are looked upon by common man as their only hope when a person is hanging between life and death. So in such circumstances, doctor’s rights should be safeguarded. To have rights, doctors should also perform their professional duties with utmost sincerity and devotion upholding medical ethics. 91

Available on: http://www.expresshealthcaremgmt.com/20021231/focus4.shtml, last accessed on: 25/10/2010 92 Ibid 93 Ibid 94 Ibid 95

Ibid


6.4: Duties and Liabilities of the Doctors By International Code of Medical Ethics of the World Medical Association – 1949 the following duties has been included as the duties of a doctor. The duties of a doctor are: Duties of Doctors in General 1. A doctor must always maintain the highest standards of professional conduct. 96 2. A doctor must practice his profession uninfluenced by motives of profit. 97 The following practices are deemed unethical: a. Any self advertisement except such as is expressly authorized by the national code of medical ethics; 98 b. Collaborate in any form of medical service in which the doctor does not have professional independence; 99 c. Receiving any money in connection with services rendered to a patient other than a proper professional fee, even with the knowledge of the patient. 100 Any act or advice which could weaken physical or mental resistance of a human being may be used only in his interest. A doctor is advised to use great caution in divulging discoveries or new techniques of treatment. A doctor should certify or testify only to that which he has personally verified. Duties of Doctors to the Sick 1. A doctor must always bear in mind the obligation of preserving human life from conception. Therapeutic abortion may only be performed if the conscience of the doctors and the national laws permit.101

96

World Medical Association Bulletin, vol. no.1, 3rd October 1949, pp. 109

97

World Medical Association Bulletin, vol. no.1, 3rd October 1949, pp. 109

98

Ibid

99

Ibid

100

Ibid

101

Ibid


2. A doctor owes to his patient complete loyalty and all the resources of his science. Whenever an examination or treatment is beyond his capacity he should summon another doctor who has the necessary ability.102 3. A doctor shall preserve absolute secrecy on all he knows about his patient because of the confidence entrusted in him.103 4. A doctor must give emergency care as a humanitarian duty unless he is assured that others are willing and able to give such care. Duties of Doctors to Each Other A doctor ought to behave to his colleagues as he would have them behave to him. A doctor must not entice patients from his colleagues. A doctor must observe the principles of The Declaration of Geneva approved by The World Medical Association.104

Chapter Seven Real conditions of the Health Sector and the Hospitals of Bangladesh 7.1: The state of our health sector 102

Ibid

103

Ibid

104

Ibid


The term ‘health’ does not just mean absence of illness or disease. It also includes physical and mental well—being. However, given the state of our health service delivery system, even physical and mental well—being is adversely affected – if not the patients’, then their family member’s. 7.1.1: Hospitals, doctors and health care According to statistics, there is one hospital bed available per 2,732 persons and one doctor per 3,125 persons according to the Bangladesh Bureau of Statistics. 105 The quality of medicine has gone down and adulterated food, drink and medication has created a negative impact all over the country. For example, in 2008, the disease Kala zar struck 45 districts and it was reported that 7 persons had died after taking the medicine Miltefosin. The medicine was tested in a WHO approved laboratory—and found to be inadequate. Again, in the early 1990’s infants in Bangladesh were falling grievously ill due to adulterated Paracetamolbased medication and on June 5, UNB reported from Faridpur that ‘some 150 children aged between six months and five years reportedly fell sick day before after taking Vitamin A capsules and deforming tablets at Charshalipur village in Charbhadrashan upazila’. 106 On June 9 The New Age reported, ‘Another child reportedly died of complications from Vitamin A plus capsule and antihelminthic or deforming tablet in Munshiganj on Sunday night raising the number of such deaths to two and several thousand children across the country fell sick in the last three days after taking the medicine.’107 Though there are hundreds of upazila health complexes all over the country, it is hard to find service. Denationalization and privatization campaigns of successive regimes have made the situation worse. Conditions imposed by international financial institutions and multilateral donors have made things more complex. Medical service has become a money minting machine instead of a national service. Poor taxpayers rarely get even standard treatment and their health situation has been compromised with the trends of consumerism and commoditization. 108 Health services are delivered by specialized personnel. When one thinks of health and well being, one of the first images that come to mind is that of a doctor. However, given the poor state of our health services, it is safe to say that some doctors are involved in contributing to the terrible state of things. The health ministry established a Monitoring and Supervisory Committee on August 31, 2008, in response to the reports of appalling health care conditions published in newspapers. In September that year, it was reported that 104 personnel in several government hospitals were 105

Available on: http://www.newagebd.com/2009/jul/05/edit.html, last access on : 02/11/2010

106

Ibid

107

Available on: http://www.newagebd.com/2009/jul/05/edit.html, last access on : 02/11/2010

108

Ibid


found to be responsible for mismanagement and corruption, and were penalized.109 Between January and October 2007 alone, there were over 76 death cases reported to be caused by medical negligence, according to an investigation of a Dhaka-based NGO, Ain-o-Shalish Kendra. 110 Again, between January and September 2008, press reports indicate that some 52 persons had allegedly died due to medical negligence. Malpractice cases are numerous, and even affect some of the country’s senior-most and reputed doctors because they treat scores of patients daily, giving each little time or thought, points out Dr Quazi Quamruzzaman of Dhaka Community Hospital. ‘It’s just that the whole system that needs to be fixed.’ 111 According to Dr Mohammad Saiful Islam, pediatric surgeon and dean of surgery, BSMMU, one of the biggest flaws in Bangladesh’s medical system is that there is no monitoring mechanism which checks whether doctors are administering wrong treatment resulting deaths. ‘The organization that is to oversee such cases of negligence, the Bangladesh Medical and Dental Council, is now dead. 112 While an alarming number of cases go unreported, the issue of accountability is hardly on the agenda of health care sector in Bangladesh.113 Again, our country’s numerous private clinics need close monitoring. Many of such clinics are nothing but money—making ventures, paying little regard to human life. In the last two years many such clinics, especially those outside Dhaka City, have been fined or shut down due to malpractice and fraud. In Dhaka, LabAid and United seem to have gained some notoriety, especially in recent times.114 7.1.2: Melamine in milk At the end of 2008, the world-wide scare of Chinese infants critically ill in hospitals due to melamine poisoning hit Bangladesh and caused major public concern. The government was forced to carry out tests on 8 popular brands of milk, resulting in the ban of three brands on November 3, 2008. What about other food products? Fruits and vegetables are being sprayed/ injected with harmful chemicals to ripen them faster; crops are being sprayed with chemical pesticides and fed chemical fertilizers which may have serious effects on our bodies. Genetically modified seeds are being sown, slowly wiping out the ‘healthier’ indigenous crops and making environment and ecology vulnerable. All these, too, affect our right to health.

115

The Government obtained three different results from three testing labs. The Dhaka University Chemistry Department, in its tests, found that melamine had been spotted in all 109

Daily Prothom Alo, September 22, 2008 Ref: http://www.newagebd.com/2009/jul/05/edit.html Ibid 111 New Age, February 29, 2008 Ref: http://www.newagebd.com/2009/jul/05/edit.html 112 Ibid 113 Ibid 114 Ibid 110

115

Available on: http://www.newagebd.com/2009/jul/05/edit.html last access on: 02/11/2010


eight brands. However, the Bangladesh Standard and Testing Institute (BSTI) and the private testing lab Plasma Plus found melamine in only one brand (Yashlee-1). The Government, with the aid of World Food and Agricultural Organization, again sent samples of eight brands for testing to a research lab in Bangkok and to the Bangladesh Council of Scientific and Industrial Research (BCSIR). However, given its inaction the High Court, on hearing a public interest petition by HRPB, filed on 23 October 2008, stayed the sale and display of the eight brands of powered milk in consideration of public health until the publication of the test result and issued a Rule Nisi upon the Government to show cause within four weeks why their failure to stop the sale should not be declaredillegal.23On 3 November, after receiving three reports, and results obtained by the Bangkok Research Institute, the Government banned three brands, Yashlee-1, Yashlee-2 and Sweet Baby-1.116 These are the glorious examples of the conditions of our health sector which shows us whether it is in a position of bad or good. 7.1.3: Chart: health condition of Bangladesh at a glance Topic

Number

Government Hospital

589

Registered Private Hospital

2271

No. of Bed in Government Hospital

38171

No. of Bed in Private Hospital

36244

Registered Doctor

49994

Registered Nurse

23729

Doctors in Government Services

12382

Nurses in Government Services

14377

Trained Midwives

5000

Total Population

143.9 million.117

Masses of people in Bangladesh face a perilous situation due to hazardous health conditions in the country, according to reports from health workers and the World Bank. The main source of these conditions is the poverty and backwardness maintained and deepened by capitalist rule. According to the survey of the government in April 2009, the total numbers of registered doctors are 49,994 & nurses 23,729. 118 According to the health department of 116 117

118

“Harmful Melamine in three brands of milk�, Prothom Alo, 4 November 2008 Available on: http://www.chintaa.com/index.php/chinta/showAerticle/55; last Accessed on: 08/11/2010 Ibid


Bangladesh government, there are estimated one doctor for every 2860 people and one nurse for every 5720 people. 119 According to the public health specialists, one doctor required 3 nurses and 5 assistants. The proportion is 1:3:5. But in Bangladesh the proportion is1: .54: .27.120 According to the WHO the estimation of doctor and nurse for every 10,000 people in South Asian countries are as follows: Country Bangladesh

Doctor 3

Nurse 3

India

6

13

Srilanka

6

17

Pakistan

8

5121

This summary states that our work force in health sector is very poor. According to the health department, 12,382 doctors and 14,377 nurses are working in government health sectors. They are serving in 589 government establishments including Thana Health Complex, District Hospital, Medical College Hospital, Specialized Hospital and Research Institute. The most pathetic information is that maximum portions of these 12,382 are serving in cities, metropolitan towns or areas alongside the towns. Therefore, the sceneries of rural areas are more formidable. In some areas there, only one doctor runs a total health complex or hospitals. He has to manage about 300-400 patients everyday. A report in Prothom Alo states that there is only one doctor in Sadullapur health complex of Gaibandha. There total posts for doctor are 20. But government appointed only five. Among them two went to deputation, one went to abroad for higher studies and the remaining one is busy with government duties. So there is only one doctor to look after the whole health complex.122 According to health department, 6861 posts of doctor and 16707 posts of nurse & medical assistants are still empty.123 The reason behind this is most of the doctors are interested to practice privately. On the other hand, every year thousands of ill Bangladeshis go abroad in the hope of getting better; in spite of huge costs of travel, hospital care & surgery. This large-scale exodus of patients reflects the dismal condition of health care in Bangladesh. Wrong diagnosis & medical negligence are rampant even in the most prestigious hospitals. This has led to a deterioration of public trust in medical professionals. Many patients complain that doctors refuse to talk to them properly or explain what their ailment is or how they will be treated. Those who can afford it & those who manage to scrape up their 119

Ibid

120

Ibid

121

Ibid

122

Ibid

123

Ibid


savings or use whatever source of funding they have opt for going thousands of miles away where they believe they will get the proper treatment. 124 At a glance these are the conditions of our health sectors.

The government should take

appropriate measures for removing these problems of our Health Sector.

7.2: The conditions of the Hospitals of Bangladesh The environment of the Hospitals of Bangladesh is not patient intensive. The maximum hospitals are ruled by corruption and by mismanagement. Particularly the condition of the public hospitals are very much bed. In the public hospitals are also corrupted by dirty politics. Their different types of labor organizations which are governed under the shadow of different types of political party. These organizations of doctors or nurses or the stuffs without any cause call strike for obtaining private gain. For such activities of these organizations the patients becoming deceived from their service. In an interview Advocate Nizam Ul Huq Nasim told that the doctors or the nurses have no right to call such strike at the hospitals.125 The conditions of the private hospitals are better than the public hospitals. But against these hospitals there are some allegations that they take high fees. In this stage, I tried to make some reports on the public and private hospitals of Bangladesh by going to the premises of the hospitals of Bangladesh. 7.2.1: Bangabandhu Sheikh Mujib Medical University Hospital The ground floor of the Bangabandhu Sheikh Mujib Medical University Hospital is Houses by 20 general wards, morgue, ticket counter, X-ray room, administrative office and OCR. On the first floor, there are 16 more wards, blood transfusion centre and eye bank. The operation theatres, intensive care and coronary care units are on the second floor. The third floor has the gateway to the rooftop, which is locked. Through an opening on the third floor I spot another building where some patients lay outside the wards on the corridor. 126 I find the pathway to the building, which is accessible from the emergency ward. I climb up the stares and run into Mukul Islam, a salesperson of a pharmaceutical company. Mukul is from Kushtia and has problem hearing with his left ear. His first visit to the doctor at the Dhaka Medical College Hospital cost him only Tk 5. The doctor advised him to see him at his private clinic. He was charged Tk 500 for a session with the same doctor at his private clinic. He tells me that ‘The doctor told me that I needed an operation and it will be done better at his clinic’. ‘The operation would have cost me Tk 20,000. As I said I could not afford that much money, he referred me back to the Dhaka Medical College Hospital where he will perform the surgery.127 124

Ibid

125

“Chikitshai Obohela” , Ain O Salish Kendra, December, 2008, p. 89

126

A case study conducted by me at BSMMUH in 06/11/2010

127

Ibid


At about 7.45 pm I buy a lemon drink from the canteen, located right next to the burnt unit. Most of the people having evening snacks there are brokers. They were gossiping about their income throughout the day.128 Dipali Karmakar, 62, finally lost the battle after a 24-hour struggle for life. The duty doctors met her yesterday evening when she was admitted but that was as if a courtesy visit to prescribe the prerequisite medicines. Dipali, mother of three sons and a daughter, suffered brain hemorrhage after she was hit by a motorcycle in front of her house on the DhakaKhulna highway. The nearby Faridpur Sadar Hospital did not have any expertise for brain injuries and the doctors referred her to Dhaka Medical College Hospital, telling her family that time was of the essence.129 ‘We came all this way, only for my mother to die like this? The doctors ruined all the possibilities of her survival despite our efforts,’ says her son Swapan Karmakar. Other members of the family complain that none of the doctors has examined her since her admission to hospital. Swapan says that she was unconscious but still breathing and could have been saved if the doctors had taken care of her. Moreover, she was not even given a bed and put on the floor of a room, which is the doorway to upper floors. Dipali was among 20-30 other patients also lying on the floor of the hospital waiting for care, a common scene in the hospital.130 The nurses and doctors who had been busy all this while finally found the time to come and declare her dead. ‘We had no idea that the hospital is so terribly crowded and patients have to wait for days to find treatment, if any at all,’ says Swapan. While the wards are packed with patients at any time of the day, the condition is worse for patients waiting outside the wards and lying on the floor for days unattended by doctors.131 The entire day has passed by watching how brokers and syndicates made money out of patients. I am now walking through the second floor of the hospital’s emergency unit. The constant scream of a woman from one of the 16 wards in the floor makes me curious. I walk down the floor to the first ward at the farthest end. Only two doctors are there for the 16 wards that accommodate more than 500 patients. A nurse is sleeping in one of the wards. A high official of the hospital was bragging the other day about the presence of doctors and nurses in each ward round the clock. ‘Patients cannot be left alone at any period of time as long as they are in hospital,’ he had said. The hospital packed with more than 2,000 patients against its capacity of 1,441 was bursting at the seams.132 Except for saline which is sealed with DMCH logo, all medicines are sold outside. Even though as per the regulations patients are supposed to get medicines free, the doctors advise the patients to buy medicines from pharmacies near the hospital. Most medicines are 128

Ibid

129

Ibid A case study conducted by me at BSMMUH in 06/11/2010

130

131

Ibid

132

Ibid


unavailable at the hospital pharmacy, as the syndicate sells them to neighboring pharmacies. The neighboring pharmacies on the other hand are involved in a number of unethical business practices that include selling spurious medicines and charging high price for those, knowing fully well that most buyers will pay them in desperation or ignorance. 133 I also found that before at the back side of the emergency department there was some dust particularly the used bandage, syringes of the patients. This is also one kind of negligence of the hospital authority.134 7.2.2: Lab Aid Hospital Labaid Hospital is situated in Dhanmondi residential area. It has two separate building. One building is for specialized treatment and another is for Cardiac treatment. Labaid Hospital is well known for good treatment. It takes high fees to treat at Lab Aid Hospital. But it is also not free from negligence. The patients often allege that the conduct of the doctors before and after surgery is not same to the patients. They also allege that the doctors are not interested to talk with them without fees after their operation/surgery. 135 But the concerned doctors refused the allegation. Dr. Col. Harun told that there arises no question for taking extra fees from the patients. Another allegation against Lab Aid Hospital is that though the patients need not keep at CCU or ICU unit but only for capital gain they send the patients at those units. For example, kamal who came at Lab Aid Hospital with his son Pavel for the treatment of his heart disease. He told me that though his pain of heart is normal but the hospital authorities only for profit are not sending him at cabin.

136

It seems to me that the environment of the hospital is patients intensive. The hospital authority regularly keeps clean the hospital. But the relatives of the patients alleged that the stuffs including ward boy and nurse want extra money from them for taking extra care of their patients. Nasima Banu who came with her husband Mustafa Ali (who is taking treatment for his kidney disease at the hospital), told me that as her husband is now at ICU unit, so whenever she wants to see her husband she has to give extra money to the ward boy.137 In this stage I am referring another fact which is collected from internet. Negligence of the hospital authorities led to the death of 47-day-old baby Afia at Labaid Specialized Hospital on December 27. The baby Afia was admitted to Labaid hospital on December 24 and underwent a successful cardiac operation the next day. 138 Father of the baby Shafiqul said that on December 27, the hospital authorities suddenly informed him at 11:00am that the oxygen supply to the ICU was interrupted and he would have to shift his daughter to another hospital. The problem, however, started at 4:00am. 133

A case study conducted by me at BSMMUH in 06/11/2010

134

Ibid

135

136 137

138

In a speech with me a patient named Fazlur Rahman at Lab Aid Hospital in 10/11//2010 Ibid In a speech with me Nasima told me that at Lab Aid Hospital in 10/11/2010 A case study conducted by me at Lab Aid Hospital in 10/11/2010


Mr. Shafiqul says that “I made all arrangements for her shifting, but the hospital authorities kept my ill baby hostage for about half an hour until I paid all the dues worth Tk 7,740. When I took my daughter to another hospital the doctors there declared her already dead”.139 But the Coordinator of Labaid Specialised Hospital Mahbubul Hoque told that the child had congenital cardiac problem and was in a critical condition with lung infection. He also added that “The baby underwent septrostomy, an invasive procedure, on December 25 and was kept in the ICU. As her condition was deteriorating gradually, we informed her parents of it and they agreed to shift the baby”. 140 He denied that the hospital authorities told the girl’s father about an interrupted oxygen supply and said there was no trouble in the supply. Even an alternative system was ready and the moment the parents wanted to shift the baby, the hospital authorities initiated the emergency procedure to transfer the baby by an ambulance. Another example of medical negligence in Labaid Hospital is given bellow. On October 29, 2007, when Bangladeshi software engineer Masum P. Mohammad, flew back to Bangladesh to see his ill father struggling for life at the Central Care Unit (CCU) of Lab Aid Cardiac Hospital, he was in shock. Masum alleges that when he saw his father lying on a bed, full of blood. Then he asked the nurse to show him where he was operated, and he was speechless to see the unhygienic condition where his father was put in. He stood there for the longest moment, not knowing what to say. 141 Masum’s father Late A.K.M Fazlum Haq was admitted at LabAid on October 25 under the treatment of Dr Prof. Baren Chakraborty, after he was struck by a sudden chest pain. After Haq had a massive heart attack on October 26, he was given injection and later a ring was put around his heart on October 27. Later that week, Haq’s chest x-ray revealed dark areas over the lung, after which Prof. Ali Hossain was involved for the lung treatment. ‘On November 2 that day, Hossain told to Masum that, food was stuck in the patient’s lung and he wants a Bronchoscope immediately.’ 142 After the Bronchoscope Prof. Hossain provided cough samples for the Tuberculosis (TB) test in two different diagnostic centres-one in LabAid, and another in Monowara Diagnostic, at 139

Available on: http://www.thedailystar.net/story.php?nid=17482; last Accessed on: 01/11/2010

140

Ibid

141

Daily New age, 11th may 2007, Xtra Cover Ref: http://www.newagebd.com/2008/feb/29/feb29/xtra_cover.html; last Accessed on: 16/10/2010

142

Ibid


Panthopath, Dhaka. Three days later the result was completely different in the two hospitals. Masum alleges that the LabAid results showed that his father has not have TB, and the Monowara Diagnostic test result showed that the report was actually positive! 143 Masum explains that later they also learnt that his father had suffered from massive brain injury right after being admitted to the hospital, which was not detected by any of the doctors. ‘When he had a heart attack earlier, blood was stuck in his brain. So, he was not being treated for his brain injury during all these days. 144 Masum says that his father’s TB test was sent on November 3, 2007. He asked that why did it take so long to send the TB test for diagnostic, and why did it take so long to detect this TB? Masum also alleged that even the TB diagnosis result was wrong.145 Masum also told when his father was given a medication; his father could not recognize them anymore. At that time they requested Prof. Chakraborty to call a neurologist to check his father’s brain, but again he did not bother to listen to him. Two days later, on November 11, his father was announced dead.146 ‘Masum’s story is nothing exceptional,’ 147 says Dr Quamruzzaman who heads the Dhaka Community Hospital in Malibagh and has himself been a victim of medical negligence through which he lost a perfectly-functioning kidney. ‘We have countless other cases of medical negligence and ignorance. But, it is important to realize that one of the biggest flaws of our health care system is that we have no accountability what so ever.’ 148 Indeed, Masum’s case is not an isolated one. According to an investigation of a Dhaka-based NGO, Ain-o-Shalish Kendra, between January to October 2007 alone, there were over 76 death cases reported to be caused by medical negligence.149 7.2.3: BIRDEM Hospital BIRDEM Hospital is the teaching hospital of the college. It is a 600 bedded multidisciplinary Hospital Complex at Shahbag, yet another prestigious institution of the Diabetic Association of Bangladesh. It has already earned national and international reputation as center of excellence for medical services and research. 143

Ibid

144

Daily New age, 11th may 2007, Xtra Cover Ref: http://www.newagebd.com/2008/feb/29/feb29/xtra_cover.html; last Accessed on: 16/10/2010

145

Ibid

146

Ibid

147

Ibid

148

Ibid

149

Ibid


The hospital is housed in two magnificent buildings one is 5 storied & other is 15 storied twin-towers. The 15 storied twin-towers accommodates the hospital, while the 5 storied building houses the outpatient services, intensive care unit and a modern sophisticated cardiac center Ibrahim Cardiac Hospital & Research Institute (ICHRI). 150 Over 3000 patients are attending outpatient departments daily. The in-patient departments have a total of 600 beds of which over 100 (number is flexible) are free. Internal Medicine & sub-specialties have a total of 220 beds. General Surgery & sub-specialties have a total of 165 beds, while gynecology and obstetrics have 60 beds. Emergency Units have a total of 30 beds, which include emergency (10), Intensive care unit (10) and Coronary care unit (10). Besides it has 120 cabins.151 It is also mentionable here that I’ve tried to make a consultation with Dr. Al Mamun who is a surgeon of BIRDEM Hospital, Dhaka. But I failed as he didn’t have enough time. Though, the BIRDEM Hospital has a reputation for better treatment of the disease of diabetics, but it has failed to provide good services to its patients. There also exists medical negligence.152 An observation at Birdem Hospital is given bellow: I went at BIRDEM Hospital on 05/11/2010 for the purpose of my Research. The day was Friday and as it was a public holiday so it was overcrowded. I saw some persons were waiting for their doctors. I told with Mrs. Naima Begum who was a patient of Dr. Tareq M. Bhuiyan who was a medicine specialist. She came from Barisal and she obtained the doctors serial by his youngest son Rana Sarkar who lived in Indira Road, Dhaka. She told me that she is waiting for doctor for 2 hours. The visiting hour of the doctor is 5.00 pm but the doctor came in hospital at 6.30 pm.153 The outer environment of the hospital was satisfactory. Because there was overcrowded environment in the hospital even the ICU was also overcrowded. But we know that the ICU should keep crowding free. The relatives of the patients were coming and going at ICU. Though there is a time for visiting hour to visit the patients but it was not obeyed. The duty servant of the hospital took money from the relatives of the patients for visiting. I also observed that the doctors were not available in the hospital even at their visiting hours. 154 7.2.4: City Hospital The Hospital is a twelve floor high rise building which is situated in nearest to Muhammadpur thana. Basically it is an NGO based institution. It is 140 beaded Hospital. In last 07/11/2010 I visited at that Hospital. As it is an NGO based hospital, so it was well decorated. The management system of the hospital is also good. But the conduct of the hospitals stuffs is not good.155 150

A case study conducted by me at BIRDREM Hospital in 07/11/2010

151

Ibid

152

Ibid A case study conducted by me at BIRDREM Hospital in 07/11/2010

153

154

Ibid

155

A case study conducted by me at City Hospital Muhammadpur in 07/11/2010


For instance, Tajnin who is a baby of one and half years old. Her parents admitted her at that hospital for a surgery in her mouth as she is a patient of talukata. On 07/11/2010 her parents admitted her at that hospital for the purpose of operation. During time of admission, as whole environment of the hospital was unknown to her, the baby start to crying. At that time the stuffs of the hospital made a rough conduct with her even with her parents. They also threatened the innocent baby. It is also mentionable here that the hospital free treat the babies who are the patients of talukata and all kinds of medical surgery is retreated freely. But the baby’s parents paid 60,000 tk. for her operation. In spite of paying tk.they did not get redeem from their rough conduct. In ICU unit which is situated in 3 rd level of the hospital there I’ve also observed some corruption. Though in the door of the hospital, it was written that no money transfer is allowed except money receipt. But this rule was not followed properly. Rahima khatun who came from Narail district with her grand son, told that last night she gave some money in the hands of duty servant, that’s why he did not make any obstruction to visit her patient. She also told that today she will also do that for 156

stopping the mouth of the duty servant.

157

These are in a nutshell the conditions of Hospitals of Bangladesh. Finally it can say that the quality of care at government hospitals isn’t satisfactory because the care providers are not interested to do the job. In the private clinics, they take higher fee but do not provide the appropriate care because they are not accountable for their action. Many happy families are shattered due to medical negligence. So we should take a measure to prevent medical negligence in the hospitals of Bangladesh.

Chapter Eight Remedies under the law of Bangladesh for Medical Negligence Medical negligence is such act which a health care provider is bound to provide but he has failed to provide it. On the other hand, malpractice is such a things where the health care provider has done some wrong act and during doing so he ought to know that he has done wrong. But in practice, these are so related that in case of filing a suit these must consider together. For medical negligence the remedies which are available are mainly tortuous remedies. That means, to make good. Besides, there are also available remedies regarding medical negligence these are Departmental remedy and Professional remedy. For instance, the Ministry of Health and Family welfare can take a departmental remedy against the doctors of Public Hospital for the allegation of medical negligence. On the other hand, the BMDC gives license to the doctors. BMDC can cancel license of a doctor if the allegation is proved. Another remedy is available here, i.e. filing a suit under criminal law. These remedies are shortly described here. 8.1: Constitutional Remedies 156

A case study conducted by me at City Hospital Muhammadpur in 07/11/2010

157

Ibid


The Constitution of Bangladesh has recognized to promote and protection of Human Rights. In the Constitution of Bangladesh Civil and Political Rights are included as the fundamental rights. But the right to get Medical treatment is not included as the fundamental rights. It is said about social justice in Article 8 of the Constitution of Bangladesh. It is also said in Article 11 of the Constitution of Bangladesh that the Republic shall be a democracy in which fundamental human rights and freedoms and respects for the dignity and worth of the human person shall be guaranteed. The Constitution has ensured that 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 the living of the people with a view to securing its citizens – The provision of the basic necessities of life, including food, shelter, education and medical care.158 It is mentioned in Article 16 of the Constitution of Bangladesh that the state shall adopt effective measures for the improvement of public health. Again in Article 18 it is mentioned that the state shall regard the raising of the level of nutrition and the improvement of public health as among primary duties and in particular it shall adopt effective measures for medical care. In Article 19 of the Constitution it is also said that the state shall adopt effective measures to remove social and economic inequality between man and man. Lastly by Article 32 the right to life is recognized as fundamental right. So the Constitution has recognized the right to healthy life by getting medical facilities. Besides, according to Article 21(2) of the Constitution, ‘Every person in the service of the Republic has a duty to strive at all times to serve the people.’ So in the light of this provision it is possible to make liable all the doctors and all other employee of the Public Hospitals on the ground of negligence in the duty. And in this circumstance it is possible to get redress by filling a writ petition in higher court. For example, in a case filed by the Ain O Salish Kendra, the High Court Division of the Supreme Court of Bangladesh has promulgated a rule nisi directing to the concerned authorities to provide the citizens proper and sufficient health service by abiding the provisions of law.159 8.2: Remedies under Human Rights Law Human right to health is now widely recognized in numerous international instruments. Article 25.1 of the Universal Declaration of Human Rights affirms: ‘Everyone has the right to a standard of living adequate for the health of himself and of his family, including food, clothing, housing and medical care and necessary social services.’ The International 158

Article 15 of the Constitution of Bangladesh.

159

Chikitshai Obohela, Ain O Salish Kendra , December, 2008 p. 116


Covenant on Economic, Social and Cultural Rights provides the most comprehensive article on the right to health in international human rights law. In accordance with article 12.1 of the covenant, signatories recognize ‘the right of everyone to the enjoyment of the highest attainable standard of physical and mental health’, while article 12.2 enumerates, by way of illustration, a number of ‘steps to be taken by the states parties ... to achieve the full realization of this right’. Additionally, the right to health is recognized, among others, in article 5 (e) (iv) of the International Convention on the Elimination of All Forms of Racial Discrimination of 1965, in articles 11.1 (f) and 12 of the Convention on the Elimination of All Forms of Discrimination against Women of 1979 and in article 24 of the Convention on the Rights of the Child of 1989. Several regional human rights instruments also recognize the right to health, such as the European Social Charter of 1961 as revised (art. 11), the African Charter on Human and Peoples’ Rights of 1981 (article 16) and the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights of 1988 (article 10). Similarly, the right to health has been proclaimed by the Commission on Human Rights, as well as in the Vienna Declaration and Programs of Action of 1993 and other international instruments.160 8.3: Departmental Remedies Departmental remedies means to take a step by the higher authority against the liable doctors and employees. Some mentionable regulatory statutes to control the doctors and hospitals or clinics in Bangladesh are: 1. BDMC Code of Ethics, 2. Medical Practice and Private Clinics and Laboratories (Regulation) Ordinance, 1982 and 3. Drag (Control) ordinance, 1982 etc.161 In these statutes some measures has been included for the protection of the interests of the patients and some measure has taken to make liable the doctors, employees and stuffs for their negligence in their service. But the uses of these statutes are so limited and these are not so familiar to the people. According to the Medical and Dental Council Act, 1980 the Bangladesh Medical and Dental Council may refuse to permit the registration of any person or direct the removal altogether or for a specified period from the Register of the name of any registered medical practitioner or registered dentist who has been convicted of any such offence as implies in the opinion of the Council a defect of character or who, after any inquiry at which opportunity has been given to such person to be heard in person or through advocate, has been held by the Council as guilty of infamous conduct in any professional respect or who has shown himself to be unfit to continue in practice on account of mental ill health or other grounds.162 160

Available on: http://www.newagebd.com/2009/jul/05/edit.html, last access on: 02/11/2010

161

Chikitshai Obohela, Ain O Salish Kendra , December, 2008, p. 116

162

Section 28 of the Medical and Dental Council Act, 1980


But till December 2007 there is not found any single prove that such measures has been taken against any doctor.163 At present how much allegation is deposited in BMDC and what is present situation of these allegations, there is no information about these. 164 There is a lot of power in the hands of the Director General of the Ministry of Health and Family Planning. He can take measure against any doctor, hospital, clinic etc. of Bangladesh. The office of the Director General, Can suo moto make inquiry against any hospital and clinic. If the alleged hospital or clinic is found guilty then he can take any legal action against these hospitals or clinics. But such actions are quite administrative, such as cancellation of the license of the alleged hospital or clinic, imposing fine etc. But such statutory measures can not bring good result for the victim or for his family. But these can be more effective for the prevention of future event. There is a Civil Surgeon in every district of the country under the Director General of Health. He can apply his power like the Director General in every district of Bangladesh. 8.4: Statutory Remedies There are two statutory remedies are available in Bangladesh. These are shortly described here. 8.4.1: Civil Remedies Tort laws have not developed in Bangladesh still now. That’s why there is no effective remedy for the event of negligence. There exist 45 civil statutes relating to health affairs. 165 Among these: Vaccination Act, 1880 Pharmacy Ordinance, 1976 Medical Practice and Privet Clinics and ;laboratory (Regulation) ordinance, 1982 Medical and Dental Council Act,1980 Safe Blood Transfusion Act,2002 Privet Health Service Act, 2005 etc. 166 If a victim wants then he can take a step by the help of the aforesaid statutes. But the main problems of the civil suit are1. The victim should pay advalurem court fee under the Court Feed Act, 1887. For the incapability to pay court fees maximum victims cannot file a suit in the court for proper remedy.167 2. As the civil case takes much time so the victims or their families are undesired to file a suit in the court for proper remedy.168 3. For the corruption, bribe etc. of the courts Clark, employees or stuffs of the hospitals the victims are not interested to file a suit in the court. 169 163

Ibid

164

Ibid Chikitshai Obohela, Ain O Salish Kendra , December, 2008, p.117

165

166

Ibid

167

Ibid

168

Ibid

169

Ibid


4. For much cost of the suit the victims are not interested to file a suit in the court. 170 For the aforesaid reasons a victim party is interested to file a civil suit. Besides, in some cases the doctor or hospital authorities come to a solution by way of negotiation with the poor victims. These negotiations may take place before the trial or when the suit is pending in a court. 8.4.2: Criminal Remedies Many lawyers believe that under existing criminal laws the remedies for medical negligence can be affordable. According to them, if the sections of the Penal Code can change to some extend then the remedies will available under existing law. Now we will discuss the sections of the Penal Code by which are related to criminal remedies. Section 275 of the Penal Code, 1860 deals with Sale of adulterated drugs. Which states that whoever, knowing any drug or medical preparation to have been adulterated in such a manner as to lessen its efficacy, to change its operation, or to render it noxious, sells the same, or offers or exposes it for sale, or issues it from any dispensary for medicinal purposes as unadulterated, or causes it to be used for medicinal purposes by any person not knowing of the adulteration, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand taka, or with both. Scope and Application of the Section 275 The offence under this section consists in selling, or offering or exposing for sale, or issuing from any dispensary, an adulterated drug as unadulterated. This section prohibits its sale and also its issue from any dispensary. This section should be read along with section 521 CrPC.171 There are some materials, though these are used as medicine, but under section275 these will treated as medicine. For example, there are some Unani Surgeons who use kerosene as medicine. But under this section, kerosene will not be called as medicine. Those things are used as medicine only these are treated as medicine not other things. 172 Under this section the following things must be proved: 1. That the drug has been adulterated. 2. That the adulteration was such as to lessen its efficacy or change its operation, or renders it noxious. 3. That the accused sold, or offered or exposed, such drug for sale; or that he issued it from a medicinal dispensary; or that he caused it to be used from a medicinal dispensary; or that he caused it to be used for medicinal purpose. 170 171

172

Ibid 5 BCR 251 AD Gazi Shamsur Rahman, Dandabidhir Vashya, 6th Edition (amended), July 2001, Re-printed2007, p.600


4. That he sold, or issued such drug as an unadulterated drug; or caused it to be used by a person who did not know of such adulteration. 5. That he knew that such drug was so adulterated when he sold, etc.173 Section 284 of the Penal Code deals with negligent conduct with respect to poisonous substance which states that whoever does, with any poisonous substance, any act in a manner so rash or negligent as to endanger human life, or to be likely to cause hurt or injury to any person, or knowingly or negligently omits to take such order with any poisonous substance in his possession as is sufficient to guard against probable danger to human life from such poisonous substance shall be punished with imprisonment of either description for a term which may extend to six months, or with fine, which may extend to one thousand taka, or with both. Under this section the following things must be proved: 1. That the substance in question is poisonous, and if taken, would be dangerous to life or likely to cause heart or injury.

2. That the accused did an act there with, which endangered or likely to endanger, human life or was likely to cause hurt or injury.

3. That he did such act rashly or negligently. Or to be proved thata. That the substance in question was poisonous, and if taken, would be dangerous to life, or likely to cause heart or injury b. That the accused was in possession of such substance. c. That he omitted to take such order therewith as was sufficient to guard against a probable danger to human life there from. d. That such omission was negligent, or with a knowledge of such probable danger. 174 Section 304A of the Penal Code, 1860 deals with causing death by negligence. In this section it is said that whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both. Under this section, Criminal rashness is hazarding a dangerous or wanton act with the knowledge that it is so, and that it may cause injury, but without intention to cause injury, or knowledge that it will probably be caused. When a doctor by his busyness gives to his

173

Zahirul Huq, The Penal Code, 4th Edition 2001, P.487-488.

174

Zahirul Huq, The Penal Code, 4th Edition 2001, P.500.


patient a toxic medicine in replace of good one. Here, offence under section 3104A has been committed.175 In this section ‘Negligence’ means a gross negligence. Here ‘Negligence’ meant lack of due care. Negligence means lack of due care by going to protect the interest of another person.176 Though, criminal rashness and criminal negligence is used for same meaning, but there are differences between these. Criminal rashness is hazarding a dangerous or wanton act with the knowledge that it is so, and that it may cause injury, but without intention to cause injury, or knowledge that it will probably be caused. On the other hand, criminal negligence is acting without the consciousness that the illegal and mischievous effect will follow, but in circumstances which show that the actor has not exercised the caution incumbent upon him, and that if he had, he would have had the consciousness. 177 According to section 304A, both are equal offence.178 Whether there exists a rashness or negligent in an act, may be proved by the following two ways. Firstly, the amount of care and cautions which a reasonable person deemed sufficient and Secondly, whether such act was done with due thought and caution or not.179 Under this section the following things must be proved: 1. The death of the person in question 2. That the accused caused such death 3. That such act of the accused was rash or negligent, although it did not amount to culpable homicide.180 Where the negligence is mot directly related to the death of the deceased person, then the accused person is entitled to get facilities 181. For example- When a contractor of a bus dies from the Patatan of that bus, then the driver of that bus could not be liable. In this case, if it is claimed that the driver of that bus has driven the bus by shaking is not cognizable. 182 Section 316 of the Penal Code deals with causing death of quick unborn child by act amounting to culpable homicide. Which provides that whoever does any act under such 175

176

Chikitshai Obohela, Ain O Salish Kendra , December, 2008, p.121 Pakistan Criminal Law Journal 1970, P.1159

177

Ratanlal Ranchhodas and Dhirajlal Keshavial Thakore, “The Indian Penal Code” 28th Edition,p.422

178

Chikitshai Obohela, Ain O Salish Kendra , December, 2008, p.121

179

180

Pakistan Criminal Law Journal 1977, Page-1159

Zahirul Huq, The Penal Code, 4th Edition 2001, P. 611. Pakistan Criminal Law Journal 1985, Page-813(Lahore) 182 Ibid 181


circumstances, that if he thereby caused death he would be guilty of culpable homicide, and does by such act cause the death of a quick unborn child, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine. For example, A, knowing that he is likely to cause the death of a pregnant woman, does an act which, if it caused the death of the woman, would amount to culpable homicide. The woman is injured but does not die; but the death of an unborn quick child with which she is pregnant thereby caused. A is guilty of the offence defined in this section. This section is only applicable in case of an unborn quick child. But when the pregnant woman dies then this section will not applicable.183 Under this section the following things must be proved: 1. That the woman was pregnant 2. That the accused did an act to cause the death of the child. 3. That the circumstances under which the act was done was such as to make the accused guilty of culpable homicide if death has been caused. 4. That such act caused the death of the quick unborn child.184 These are the remedies available for a victim of medical negligence in our country.

Chapter Nine Concluding Chapter 9.1: Findings There is no separate law in Bangladesh regarding medical negligence. When any one become infirmed or injured physically, then he should get the help of the sections 337 and 338 of the Penal Code for proper remedy. Besides, section 304A includes the provision for causing death by negligence. In Bangladesh, When any one wants to get remedy then he should take the help of the aforesaid sections. But these sections have some limitations. These are shortly described here. 9.1.1: Statutory Limitations The aforesaid sections of the Penal Code have some salutatory limitations. In these sections it is said about general negligence. As the medical negligence is a special negligence and it was necessary to specify those negligence for bring it as the criminal negligence. But in this 183 184

1966 Allahabad, 590. Zahirul Huq, The Penal Code, 4th Edition 2001, P. 633-634.


case it is absent. Though in section 304B of the Penal Code there is a provision of punishment for rash or negligent driving of any vehicle, but there is no special section regarding medical negligence. Medical negligence is one kind of professional negligence. The persons who are specialized in a work, their act of negligence and the negligence of the general people are not the same thing. Here the proof of the act of negligence lies on the expected degree of care, which is quite different from general negligence and professional negligence. But in this Act there is no explanation or illustration regarding this. Generally the patient or his kin could not make a demand that for the surgeon had the intention to kill him or his kin. In case of criminal liability it is a sin qua non that there must be an intention that for committing an offence. But the word itself speaks that the act is not by intentionally but lack of due care.185 9.1.2 Procedural Limitations There exist some procedural limitations in our statutes: 1. At first, when a victim wants to file a suit against the medical negligence or against the doctor, the police station is not interested to take the case. Even the Magistrates are also not showing their interest to take suit. 2. Against the negligence of public hospitals though a case is taken, when after primafacie inquiry it is found that the alleged doctors are guilty then the permission of the Ministry of Health affairs is required. This is very time consuming process and also creates secretariat complications.186 3.

In these suits, the current process of collecting evidence is a lengthy process and in some cases irrational and unnecessary. In any case the cases of death are referred for post mortem report and for surothal. In present situation when a case is referred for a post mortem report or for a surothal report , then the process of the suit will pending for a long period. The customary processes of inquiry hamper and obstruct the main suit.187

4. Fourthly, there exists lack of experience in criminal inquiry. Generally, Criminal investigation is done by police. The police investigations present process is not sufficient for the medical investigation. The Bangladesh police have not sufficient knowledge and capability to investigate like the matters of medical negligence. 188

185

Chikitshai Obohela, Ain O Salish Kendra, December, 2008 p. 144

186

Ibid, p. 145

187

Ibid

188

Ibid


These are the limitations of the criminal laws regarding negligence. Besides section 312, 313, 314, 315 & 316 of the Penal Code are related with abortion and the death of unborn child. These sections are not directly to medical negligence besides the doctors there may involve any other authority for negligence. 9.1.3: Obstructions on Criminal Remedy In case of criminal offence the following three obstructions creates an obstruction from getting proper remedy. 9.1.3.1: Mens Rea In case of criminal trial mens rea is an important thing. The offence which has already been committed, whether there was an intention of the doer, the judge of a case find out by records and evidence. If it is proved, that offender has not any intention to do the offence then the amount of his punishment is also reduced. For example, when a man is charged for an offence and if it is proved that he has done the act for his self defense, then it will deem that he has not committed an offence. Because he has not any intention for committing the offence. So in case of medical negligence, it is difficult to prove mens rea.189 9.1.3.2: Relation between negligence and injury There should be a direct relation between injury and negligence. If there is no direct relation between injury and negligence then the accused person shall not be liable for negligence. 190

9.1.3.3: Good Faith In case of criminal cases, particularly, in negligence suit, good faith is widely used. The accused surgeons show plea of good faith for their self defense. The Penal code also does the offences as offence which are directly relate with good faith. For example, Surgeon, knowing that a particular operation is likely to cause the death of Z, who suffers under the painful complaint, but not intending to cause Z's death, and intending, in good faith, Z's benefit, performs that operation on Z, with Z's consent. A has committed no offence. It is said in section 89 of the Code, that nothing-which is done in good faith for the benefit of a person under twelve years of age, or of unsound mind, or by consent, either express or implied, of the guardian or other person having lawful charge of that person, is an offence by reason of any harm which it may cause, or be intended by the doer to cause or be known by the doer to be likely to cause to that person. For example,

189

Ibid, 124

190

Ibid


A, in good faith, for his child's benefit without his child's consent, has his child cut for the stone by a surgeon knowing it to be likely that the operation will cause the child's death, but not intending to cause the child's death. A is within the exception, in as much as his object was the cure of the child. Nothing is an offence by reason of any harm which it may causes to a person for whose benefit it is done in good faith, even without that person's consent, if the circumstances are such that it is impossible for that person to signify consent, or if that person is incapable of giving consent, and has no guardian or other person in lawful charge of him from whom it is possible to obtain consent in time for the thing to be done with benefit. For example, A, a surgeon, sees a child suffer an accident which is likely to prove fatal unless an operation is immediately performed. There is not time to apply to the child's guardian. A performs the operation in spite of the entreaties of the child, intending, in good faith, the child's benefit. A has committed no offence. So, good faith is an important thing in Penal Code. That’s why in section 52 of the Penal Code, good faith is defined separately. According to that section, nothing is said to be done or believed in "good faith" which is done or believed without due care and attention. 9.1.3.4: Other obstructions Besides the aforesaid obstructions, there are also some obstructions. These obstructions play a vital rule in case of criminal suit. For example, 1. Corruption in the different field of Police and government.191 2. Investigating officers has lack knowledge and technical ability in case of dealing of a case.192 3. Destroy of the evidence as a result of delay.193 4. Lack of Knowledge of the lawyers and the judges regarding this matter. 194 5. It is difficult to collect medical records, witness, etc.195 6. Lack of the provision for taking technical opinion.196 9.2: Recommendations The following recommendations may be consider for proper remedy of medical negligence. 9.2.1: Statutory Recommendations

191

Chikitshai Obohela, Ain O Salish Kendra, December, 2008 p. 124

192

Ibid

193

Ibid

194

Ibid

195

Ibid

196

Ibid


For removing the aforesaid statutory and procedural limitations, the following reforms should be taken. If it is possible to legislate a different statute for medical negligence, then it will be more efficacious. In the proposed law there shall be a definition chapter where the definition of medical negligence and the detailed description of medical negligence and its kind will described. The trial and investigating procedure must be include in that Act for medical negligence. Besides, there must ensure that during the treatment period, there must not make an unreasonable obstruction to the doctors. It also be remember that the safety measures must be adaptable with real situations. Sometimes it has been observed that by the help of safety measures all the criminals are saved. So, all these things must be deeply think at the time of legislation. Above all, it is not possible to change the present situation of our health sectors by a night only. So, to prevent medical negligence and to provide legal remedy to the victims the following recommendations may be consider. 1. Some sub-sections may include for medical negligence with the existing sections (337,338, 304A) of the Penal Code.197 2. With these inclusions, the definition of medical negligence, its types and its scale must be clearly mentioned.198 3. In case of medical negligence, all the procedural complication must be removed. 199 4. In case of medical negligence, all the lump sum inquiry procedure must be removed. As these procedures of inquiry extends the time of the suits. 200 5. The Police must be well trained for investigating the matters of medical negligence. As they have no concept about medical negligence. Particularly, their corrupted mental tendency must be changed. 201 Sometimes it is seen that they are helping the offenders to move openly in spite of committing an offence. The offenders stop the mouth of police by giving bribe. So the corrupted mind of police must be changed for establishing rule of law in the society. 6. According to the Medical Practice and Private Clinics and Laboratories (Regulation) Ordinance, 1982, there must take a measure for the inspection of the private clinics.202 As under the Ordinance there is no scope of inspection of the Private Clinics of our country. As in the Ordinance there is not strict provision of punishment

197

Chikitshai Obohela, Ain O Salish Kendra, December, 2008 p. 148

198

Ibid

199

Ibid

200

Ibid, 148

201

Ibid

202

Ibid


for the violation of the Ordinance. So for taking an action against such violation there must be a provision of punishment for violation of the Ordinance. 7. By amending the Medical Practice and Private Clinics and Laboratories (Regulation) Ordinance, 1982, accountability of the inspecting authority must be ensured. 203 8. The private clinics or hospitals must have sufficient treatment facilities, appropriate medical equipment and adequate sitting arrangements for patient visitors to receive license. 9. There must take appropriate measures for fixing fees for private clinic and private laboratories for surgical operations, medical examinations and services, including pathological and radiological examinations, and maintenance of patient’s records. 9.2.2: Other Recommendations The following recommendations may also be considered. 9.2.2.1: Recommendations for Government 1. There must take a consciousness program by the government for the rights which are available for a patient i.e. the right to receive information from physicians about the services, the right to safe and continuity of health care, the right to confidentiality, right to get respect and dignity, right to share idea, right to get redress, right to inform the highest authority when the rights are violated, right to choice treatment and the method of family planning, right to get all documents relating to treatment etc.204 2. The govt. should form an information store from village to capital for the purpose of preservation of all supporting information’s relating to health affairs. Where all supporting documents and the problems of the public and private hospitals and health care centers will be preserved. If it is required, their must be a measure for supplying information. 205 3. In Upazila Health Complex, there must be improvement regarding equipment, manpower and infrastructure. In every health centre there should be hang a list about what kind of health facilities are available and how much the price of these services are. The proportion of doctor and patient must be reduced by taking effective measures. 206 4. An awareness program may be taken for the nurse and ward boy of the hospitals, clinics and for all institutions relating to health care regarding the rights of the patients. A training program should also be taken for all.207 203

Ibid

204

Ibid, 148

205

Ibid, p. 149

206

Ibid

207

Ibid


5. A cautious measure should be taken in case of writing medical records and of its preservation. If it is required a different training program may be taken. 208 6. Unwanted political interfere should be reduced. 209 7. The budget for health sector should be increased and proper use of such budget must be ensured.210 8. The government should establish a separate Food, Health, Cosmetics and Consumer Tribunal.211 9.2.2.2: Recommendations for Bangladesh Medical and Dental Council The BMDC may consider the following recommendations for the control the medical Colleges and existing hospitals of Bangladesh. 1. The BMDC should make as an institution which will free from political power and shall be people’s representative, impartial and effective.212 2. During the renewal of the doctors registration there should a measure for the reevaluation.213 3. The environment of the hospitals should make as the patient intensive. 214 4. The accountability of the management of the hospitals must be ensured. 215 5. The tribunal of the BMDC should make active.216 9.3: Conclusion To prevent medical negligence, reformation of law is necessary as well as the reformation of the medical management is also necessary. The limitation of our wealth resources are also 208

Ibid, 149

209

Ibid

210

Ibid

211

Ibid

212

Ibid

213

Ibid

214

Ibid

215

Ibid

216

Ibid


great obstruction in this regard. In the present situation it is quite impossible to get remedy for the allegation of gross negligence. But if the proposed reformations are possible then there will be a way to remove the difficulties in case of the trials of medical negligence. To bring accountability in case of medical negligence is the first step of the reformation of law. Besides creating awareness all people of the society should come forward for this. Certainly the surgeon has a great responsibility in this regard. The community of the surgeon should realize, that to have a position against the medical negligence is not treated as to have a position against the whole surgeon communities. Rather it will explore a surgeon’s quality of humanity and a proper respect to his profession.

List of Abbreviations 1. A.C 2. AD 3. A.I.R 4. BD 5. B.L.R 6. BMDC 7. BSMMUH 8. Cr.P.C 9. DMCH 10. E.R 11. HCD 12. K.B.D 13. N.G.O 14. Q.B.D 15. Raj. 16. SC 17. T.B 18. U.S 19. V.I.P

: Appeal Cases : Appellate Division : ALL India Reports : Bangladesh : British Law Reports : Recommendations for Bangladesh Medical and Dental Council : Bangabandhu Sheikh Mujib Medical University Hospital : The Code of Criminal Procedure : Dhaka Medical College Hospital : Eastern Report : High Court Division : kings Bench Division : Non Government Organization : Queens Bench Division : Rajasthan : Supreme Court : Text Book : United States : Very Important Persons


20. W.N

: Western News


List of Cases 1. Boy Andrews v. St. Rongvald, (1947) 2 A.E.R. 350(H.L); 2. Butterfly v. Forrester, (1809) 11 East 90. 3. Cleghorn v. Oldham, (1927) W.N. 147; 4. Froom vs. Butcher, (1975) 3 All E.R. 520 (524) C.A. 5. Glasgow Corporation vs. Taylor, (1922) 1 A.C. 44. 6. GREAT CENTRAL RLY.v. BATES (1921) 3 K.B. 578 7. Heaven vs. Pender, 1883 11 Q.B.D.507. 8. Lynch vs. Nurdin, (1841) 1 Q.B. 29; 9. Mills v. Armstrong, (1888) 12 App. Cas.1. 10. Nance v. British Columbia Ry. Co. (1951) 2 All E.R. 448 (P.C). 11. Niochls v. Marsland, L.R. 2 Ex. Div. 1 12. Pfizer Corp vs. Ministry of Health 1965 AC 512 13. Philips India Ltd. V. Kunju Punnu, (1974), B.L.R. 337. 14. Sidhraj Dhadda v. State of Rajastan, A.I.R. 1994 Raj. 68 15. White v. N.e. Rly, (1888) E.B. &E. 719

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Medical negligence law and practice in bangladesh