“CONSTITUTIONAL PROTECTION AND CLAIMS FOR MEDICAL NEGLIGENCE”

- Md. Rafiqul Islam Hossaini

2016-05-23-1464041655-470072-terrifyingcasesofmedicalnegligence2

Published On - December 5, 2016 [Vol. 5, Jul - Dec, 2016]

What is Negligence?

“Negligence” is a significant branch of the law of Tort.  When the word “negligence” is used in the law of torts it means simply “more than mere carelessness.”[1]

A definition for the meaning of the word “Negligence” has been given by L.B Curzon in the Longman Dictionary of Law as a breach of legal duty of care, breach of which caused damage to the claimant which was not even expected by the defendant.[2] Moreover, the term “negligence” was defined as “the omission to do something which a reasonable man guided upon those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do”.[3]

Negligence of course means carelessness, but in 1934 Lord Wright[4] said, “in strict legal analysis, negligence means more than heedless or careless conduct, whether in omission or commission: it properly connotes the complex concept of duty, breach and damage thereby suffered by the person to whom the duty was owing”.

The successful claimant in a negligence action must establish three propositions: 1) that the defendant owed the claimant a duty of care; 2) that the defendant had breached the duty of care; 3) that as a result of the breach the claimant suffered damage of a kind that the law deems worthy of compensation.[5]

What is Medical Negligence?

Medical negligence or malpractice simply refer to an act or omission done by the professional health care providers (especially by a physician, dentist, nurse, medical assistant, pharmacist or any other medical service provider) which moves downward and lower to the accepted standard of practice, which caused the patient to suffer injury or even death.[6]

To prove medical malpractice or negligence claimant must successfully have established four important ingredients:

  • Duty was owed by the professionals;
  • Professionals violated the duty to take reasonable care;
  • Claimant suffered compensable injury;
  • Injury was caused proximately by the conduct of the professionals.[7]

There is a problematic question: when does duty of care arise? This has been answered by Smith LJ in the case of Le Lievre v Gould[8] where he held that, “a duty to take care did arise when the person or property of one was in such proximity to the person or property of another that if due care was not taken, damage might be done by the one to another”.[9]

Medical Negligence in Bangladesh: Preliminary Discussion

Though advanced and state-of-art technologies have been introduced in some health care providing institutions in our country, it is often perceived that a quantity of patients of the total population of Bangladesh do not rely on the treatment of national health care providers. These people rush to another foreign country for better treatment by indicating the negligent behavior of our health care providers. People are cognizant or aware of such negligent behavior done by the health care providers through media (news paper publication or television broadcasting).[10]

Form June 1995 to September 2008 Ain O Salish Kendra, which is one of the leading human rights organization in Bangladesh, ascertained 504 medical negligence cases. As far as the medical negligence is concerned most of the cases provide evidence of very unpleasant picture of our health care sectors.[11]

However, there are some limitations in Bangladesh which cannot be denied. According to World Health Organization (WHO), expenditure on health sector should be $ 34 per person, whereas in Bangladesh it is only $ 5. In Bangladesh the Doctor to Nurse ratio is 1:0.48, where the standard ratio should be 1:3. Both of them are evident experiences in Bangladesh which cannot be remedied overnight.[12]

Furthermore, it has been alleged by general doctors that two doctor’s organizations, one is Doctors Association of Bangladesh (DAB) (patronized by pro-BNP-Jamaat doctors) and another is Swadhinata Chikitsha Parishad (SWACHIP) (patronized by pro-AL doctors), are interrupting the general activity of our health care providing institutions. Good doctors who are independent or belong to a party opposition of the ruling party are basically granted the most unpleasant workstation.[13]

Constitutional Protection

The right to health and medical care has given significant importance in the Constitution of the People’s Republic of Bangladesh. In Bangladesh the right to health and medical care is endorsed in the Constitution as fundamental necessity of every citizen. There are a number of Articles in our Constitution where the right to health and medical care is ensured.

In our Constitution the right to health and medical care is not directly recognized as fundamental right of a citizen but it can be recognized as a branch of right to life which is guaranteed as fundamental right of a citizen under Article 32 of the Constitution. The Preamble of our Constitution can be referred as strong evidence where it is the fundamental aim of a state to keep  the fundamental human rights intact.[14]

Preamble of our Constitution provides, “… it shall be a fundamental aim of the State to realize through the democratic process a socialist society, free from exploitation a society in which the rule of law, fundamental human rights and freedom, equality and justice, political, economic and social, will be secured for all citizens; …”[15]

Right to health and medical care is recognized as fundamental principle of state policy under Article 15 of the Constitution. Article 15 of the Constitution says 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 living of the people with a view to securing to its citizens- 1) the provision of the basic necessities of life, including food, clothing, shelter, education and medical care.”[16]

Article 18 of the Constitution further says, “The state shall regard the raising of the level of nutrition and improvement of public health as moving its primary duties, and in particular shall adopt effective measures to prevent the consumption, except for medical purposes or for such other purposes as may be prescribed by law, of alcohol and other intoxication drinks and of drugs which are injurious to health”.[17]

Furthermore, Article 21 of our Constitution provides some duties of every citizen and for persons in public service, as it states, “(1) It is the duty of every citizen to observe the Constitution and the laws, to maintain discipline, to perform public duties and to protect public property. (2) Every person in the service of the Republic has a duty to strive at all times to serve the people.”[18]

Constitutional Remedy: Judicial Review or Public Interest Litigation

Judicial review can be considered as an effective remedy for medical negligence litigations. It can be filed by any person, being aggrieved and having no other efficacious alternative remedy, before the Honorable High Court Division in the form of Public Interest Litigation or in the form of other Writ petitions.  The judicial review power has been given to the Honorable High Court Division of the Supreme Court of Bangladesh under Article 102 of the Constitution of the People’s Republic of Bangladesh[19]. If the government fails to fulfill it’s legal and Constitutional obligation regarding right to health and medical care, obviously in this situation the court has power to intervene in this matter and can force the government to perform its obligations in accordance with legal and constitutional obligations. [20]

However, remaining problems regarding judicial review in connection with medical negligence situation are:

  • In litigations against the government the non- cooperation of government for hearing the case is generally seen.
  • Through the process of judicial review it is not always possible for an individual to get proper and appropriate benefit rather it is a useful mechanism to get collective impact regarding medical negligence.
  • locus Standi or right to sue is an important issue for filing judicial review (Public Interest Litigation is an exception), if anyone does not have the requisite locus standi that person will not be allowed to file judicial review before the Honorable High Court Division.
  • Sometimes the court is unable to compel the government to response within a particular period of time.

Limitations and Challenges for medical negligence litigations in Bangladesh:

There are some limitations and challenges for medical negligence litigations in Bangladesh which cannot be ignored. Some significant limitation and challenges are:

  • Lack of governmental resources to follow up the medical negligence incidences usually occur in private and public hospitals of our country.
  • Only a limited number of Non-Governmental organizations deal with the issue of medical negligence incidences.
  • Lack of expertise among the judges and the lawyers to deal with the litigations of medical negligence.
  • Though the law of “tort” is available in our country; it has no natural practice.
  • Medical negligence occurrences are not under continuous supervision rather people and the government becomes concerned about it only when it has been given significance through media.
  • Absence of much awareness of general people concerning medical negligence instances.
  • Doctors and hospitals generally like to mitigate medical negligence situations through negotiation with the victims; as they apprehend that any sort of litigation against them regarding their misconducts will hamper their professional activities.
  • General people usually do not show willingness to file a case against the hospitals and doctors, apprehending that they are not in a level playing field.
  • Only a few number of Non-Governmental Organization provide “legal aid” regarding medical negligence litigations.
  • Litigation procedure in Bangladesh is a lengthy process; it takes a long period of time to get a final judgment.
  • There are a number of effective laws in Bangladesh to mitigate medical negligence occurrences but these have no efficient implementation.
  • Non-Cooperation of government in the litigation process and court’s inability to oblige government to reply within a reasonable period of time.[21]

Concluding Remark:

Medical negligence is a day to day instance in Bangladesh which is usually occurring due to lack of accountability. It is our strong belief that doctors or the medical professionals be obliged under moral duty and oath to serve their best to protect our lives and health. Because of preferring their profit, illegal motives, excess workload, poor management system, lack of knowledge about scientific invention, loopholes in the existing legal system, peoples unwillingness to bring legal action against medical professionals, and for some other difficulties only few medical practitioners are usually found to be negligent regarding their performance. Peoples in our country are getting aware and are willing to bring legal actions for medical negligence instances which cause death and/or damage to the victims. The Constitution of Bangladesh as the supreme law of the country has protected the right to health of its citizen in a strict way. The Supreme Court of Bangladesh is also willing to perform its Constitutional duty and to give remedy under constitutional law for medical negligence claims. Though there are some loopholes in the existing domestic laws and legal system, the government of the People’s Republic of Bangladesh is taking initiatives to mitigate or reduce such instances. Moreover, medical professionals are expected to know about the legal consequences of their medically negligent performances and should avoid themselves landing in such controversial situations and litigations. They are expected as always to maintain their professional dignity.

References:

[1] Goldberg, J.C. and Zipursky, B.C., 2013. The fraud-on-the-market tort.Vanderbilt Law Review, 66.

[2] Curzon, L.B. and Richards, P., 2007. The Longman Dictionary of Law. Pearson Education.

[3] Blyth vs. Birmingham Waterworks Co. (1856)11 EX.78

[4] Lochgelly Iron and Coal Co v McMullan [1934] AC 1 at 25

[5] Lunney, M. and Oliphant, K., 2008. Tort law: text and materials. Oxford University Press.

[6]  http://archive.thedailystar.net/forum/2012/August/on.htm

[7] Bal, B.S., 2009. An introduction to medical malpractice in the United States.Clinical orthopaedics and related research, 467(2), pp.339-347.

[8] Le Lievre v. Gould, 1898 Q.B.1 491 (1898).

[9] Islam, M.Z., Medical Negligence in Malaysia and Bangladesh: A comparative study.

[10] Hoque, M.M.A. and Chowdhury, F.R., 2008. Medical Malpractice: in Quest of an Effective Legal Protection in Bangladesh. Journal of Medicine, 9(2), pp.87-89.

[11] http://archive.thedailystar.net/forum/2012/August/on.htm

[12] http://www.askbd.org/ask/wp-content/uploads/2014/02/Report-Medical-Negligence.pdf

[13]http://bangladesh-tanim.blogspot.com/2011/10/medical-malpractices-dangerous-trend-in.html

[14] Hossain Mollah, A., 2014. Judicial activism and human rights in Bangladesh: a critique. International Journal of Law and Management, 56(6), pp.475-494.

[15] Preamble of the Constitution of the People’s Republic of Bangladesh

[16] Article 15 of the Constitution of the People’s Republic of Bangladesh

[17] Article 18 of the Constitution of the People’s Republic of Bangladesh

[18] Article 21 of the Constitution of the People’s Republic of Bangladesh

[19] Article 102 of the Constitution of the People’s Republic of Bangladesh

[20] http://www.askbd.org/ask/wp-content/uploads/2014/02/Report-Medical-Negligence.pdf

[21] http://www.askbd.org/ask/wp-content/uploads/2014/02/Report-Medical-Negligence.pdf

About The Writer

Article Author Image

Md. Rafiqul Islam Hossaini

LLB (Hon’s) (2nd Class, Division I) (University of London, UK). LLM (1st Class) (Jagannath University).

E-mail: rih.jewel@gmail.com

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