Research onMedical Negligence

Law & Practice in Bangladesh

International Islamic University , Chittagong

Presented by Akther Jahan

ID No : LM-131214

Course Code:

Submission Date: 20-4-2014

Submitted to: Adv. Anjuman Ara Begum

Assistant Professor

Law Department

Supervisor of the concerned thesis

1

Preface

In the name of ALLAH, the Most Beneficial,the Most Merciful.

This Research Monograph is submitted in partial fulfillmentof the requirement for the degree of Bachelor of laws. Thecourse teacher gave two options for research. I have chosenthis topic for research due to my interest and strongcuriosity regarding this topic.

In writing this Research paper , I have taken help frommany books, journals and internet. freely used these booksfrom Noshirvan H. Jhabvala’s “The Law of Torts”25th Edition, Markesan’s and Deakin’s “Tort Law” 5th edition,Dr. Durga Das Basu’s “The Law of Torts”’ 11th Edition, andAin O Salish Kendra’s “Chikitshai Obohela”. Beside thesealso I have taken the help of some websites and journals. Iam grateful to the learned authors and to the editors ofthese books and websites and journals.

I would like to give special thanks to honorable supervisorAdv Anju Maan Ara Begum Department of Law, InternationalIslamic University Chittagong, for her motivation. Beingaware of limitations, I discussed this subject with all ofmy teachers. I am grateful to all my learned courseteachers for discussing the complicated issues with me andfor giving valuable suggestions and advice.

2

Acknowledgement

This research paper is made possible through the help and

support from everyone, including: parents, teachers, family,

friends, and in essence, all sentient beings. Especially,

please allow me to dedicate my acknowledgment of gratitude

toward the following significant advisors and contributors.

First and foremost, I would like to thank Adv .Taslima

Khannum and Adv. Anju maan Ara begum for their most support

and encouragement. They kindly have read my paper and

offered invaluable detailed advices on grammar,

organization, and the theme of the paper

.Second, I would like to thank all the respective teachers of

Law department, who longed to read my thesis and to provide

valuable advices, 3

Finally, I sincerely thank to my parents, family, and

friends, who provided the advice and financial support. The

product of this research paper would not be possible without

all of them.

Thank You

Akther Jahan

Abbreviations

ASK……………………. ..Ain o Salish Kendra

BMA………………………Bangladesh Medical Association

BMDC…………………… Bangladesh Medical and Dental Council

CEDAW………………….. Convention on Elimination of All forms of

Discrimination against Women

CPC ……………………..Code of Civil Procedure, 1908

CRC ……………………...Child Rights Convention

CrPC ………………………Code of Criminal Procedure, 1898

4

ICESCR ……………………International Covenant on Economic, Social

and Cultural

Rights

NHP ………………………..National Health Policy

NWDP ……………………...National Women Development Policy

UDHR………………………. Universal Declaration of Human Rights

UN…………………………… United Nations

WHO …………………………World Health Organization.

PIL…………………………….Public Interest Litigation.

List of Instruments and Laws The Constitution of Bangladesh, 1972

The Penal Code, 1860

The Vaccination Act, 1880

5

The Code of Criminal Procedure, 1898

The Code of Civil Procedure, 1908

The Drugs Act, 1940

The Eye Surgery (Restriction) Ordinance, 1960

The Pharmacy Ordinance, 1976

The Drug (Control) Ordinance, 1982

The Medical Practice and Private Clinics and Laboratories

(Regulation)

Ordinance, 1982

The Bangladesh Unani and Ayurvedic Practitioners Ordinance,

1983

The Transplant of Organ in Human Body Act, 1999

The Safe Blood Transfusion Act, 2002

The Consumer Rights Protection Ordinance, 2008

The Bangladesh Medical and Dental Council Act, 2010

The National Child Policy, 1994

The National Health Policy, 2011

The National Women Development Policy, 2011

The Code of Medical Ethics, adopted by the Bangladesh

Medical and

Dental Council

6

Table of Contents

Preface…………………………………………………………………………….1

Acknowledgement………………………………………………………………..2

Chapter 1:Introductory Chapter

1.1 Introduction…………………………………………………………………….....9

1.2 Aims and Objectives of Research………………………………………………...10

1.3 Nature and Scope…………………………………………………………………10

1.4 Research Methodology…………………………………………………………...10

1.5 Limitation of Research………………………………………………………….. 11

Chapter 2: Conceptual Analysis of Medical Negligence

2.1 Definition Of Negligence………………………………………………………… 6

2.2 Reasonable Man……………………………………………………………………8

7

2.3 Professional Negligence……………………………………………………………8

2.4 Essential of a suit for Negligence…………………………………………………..9

2.5 Negligence by Medical Professional……………………………………………...10

2.5.1 Definition of Medical Negligence………………………………………………..11

2.5.2 Essential of a suit for Medical Negligence………………………………………11

2.6 Defenses to an action of Negligence………………………………………………..12

2.6.1 Vis Major………………………………………………………………………….12

2.6.2 Inevitable Accident………………………………………………………………..13

2.6.3 Contributory Negligence…………………………………………………………..13

Chapter 3 Principles of Negligence and Burden of Proof

3.1 Contributory Negligence…………………………………………………………. 14

3.2 Contributory Negligence by

Children………………………………………………..16

3.3 Burden of Proof………………………………………………………………………16

3.4Doctrine of identification……………………………………………………………..17

3.5 Res Ipsa Loquitor…………………………………………………………………….18

3.6 Burden of proof of Negligence…………………………………………………….. .19

8

Chapter 4 Places of Medical Negligence and Consequence of

Medical Negligence

4.1 Medical Negligence by Public Hospitals…………………………………………20

4.2 Medical Negligence by Private Hospitals…………………………………………

21

4.3 Medical Negligence by Private Clinic…………………………………………….23

4.4 Consequences of Medical Negligence…………………………………………….25

Chapter 5 Liability And Victim

5.1 Persons liable for Medical Negligence………………………………..……………

26

5.1.1 Doctor…………………………………………………………………………….26

5.1.2 Nurse………………………………………………………..…………….………27

5.1.3 Staffs of the Hospitals………………………………………….…………..…….27

5.2 Victims of Medical Negligence

5.2.1 Women………………………………………………………………………......28

5.2.2 Children………………………………………………………………………..29

5.2.3 Students……………………………………………………………..…………30

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5.2.4 Politicians and Others… ……………………………………………..……….30

Chapter 6 Rights and Duties of Doctor and Patient

6.1 Rights of the patients…………………………….…………………………...…31

6.2 Duties of the Patient…………………………….……………….…………..…..33

6.3 Rights of the Doctor…………………………..…………………………..……..39

6.4 Duties and liabilities of Doctor………………………………………………….39

6.5 Duties of Doctor in general………………………………………………………39

Chapter 7 Real condition of the Health Sector in Bangladesh

7.1 State of our Health sector………………………………………………………....41

7.1.1 Hospitals ,Doctors and Health

Care……………………………………………..41

7.1.2 Melamine in Milk……………………………………………………………..…43

7.1.3 Chart of Health Condition In

Bangladesh………...........................………… …..44

Chapter 8 Remedies under the Law of Bangladesh

8.1 constitutional remedies………………………………………………………….…..47

8.2 Human Rights Law………………………………………………………………….48

8.3 Departmental Remedies………………………………………………….………….49

8.4 Statutory Remedies…………………………….………………………………..…..51

8.4.1 Civil Remedies………………………………………………………….………....51

8.4.2 Criminal Remedies………………………………………………..……………….52

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Chapter 9 Recommendation

9.1 Statutory Recommendations ………………………………………………………..57

9.2 Other Recommendations……………………………………………………………..58

9.3 Recommendation by Government…………………………………………………59

9.4 Recommendation BMDC………………………………………………………….60

Chapter 10 Concluding Chapter

10.1 Findings

10.2 Statutory Limitations

10.3 Procedural Limitation

10.4 Obstruction on Remedy

Appendix A

Appendix B

References

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Abstract

The prime objects of this paper are to undertake stock of the laws that are

in practice in Bangladesh, to guide the healthcare service providers and

users, policy formulators and legislators. Towards these objects the

researcher h a s u n d e r t a k e n d e t a i l e d l i t e r a t u r e s u r v e y ,

d i s c u s s e d i n g r o u p s w i t h  practicing doctors specializing in

Healthcare Administration, attended s e m i n a r s a n d f o r l a t e s t

d a t a s e a r c h e d t h r o u g h a p p r o p r i a t e i n t e r n e t   addresses. The

researcher has addressed the Healthcare Rights under Bangladesh

Constitution, Laws for Medical Negligence & Legal Remedies, Health Policy, , and

a number o f re l evant i s s ues and fi n a l l y , made a nu mber o f

recommend at ions to comply with the original research objectives.

Historically, the standard of care in medical negligence provided considerable

scope for external evaluation of clinical judgment. Under the Bolam test,

however, determining the standard was seen by the courts as essentially a

matter for the medical profession, to be resolved by expert testimony with

minimal court scrutiny. In recent years, courts have become more willing to

probe such testimony and challenge the credibility of medical experts, although

they would very rarely override clinical judgment

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Key words: Court, Hospitals , Negligence, Medical

Negligence, Doctors and other staffs, Rights and Duties,

Reasonable Man, Judgment, Laws

Chapter One

Introductory Chapter

1.1: Introduction

For a patient, the doctor is like God. And, the God is

infallible. But that is what the patient thinks. In reality,

doctors are human beings. And, to err is human. Doctors may

commit a mistake. Doctors may be negligent. The support

staff may be careless. Two acts of negligence may give rise

to a much bigger problem. It may be due to gross negligence.

Anything is possible. In such a scenario, it is critical to

determine who was negligent, and under what circumstances.

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In a country committed to the rule of law, such matters are

taken to the court and judges are supposed to decide.

Negligence by doctors is difficult to be determined by

judges as they are not trained in medical science. Their

decisions are based on experts’ opinion. Judges apply the

basic principles of law in conjunction with the law of the

land to make a decision. Reasonableness and prudence are the

guiding factors.

However, Medical negligence mainly concerns negligent or

rash act of medical professionals causing any injury to the

patient. Medical negligence is a kind of professional

misconduct on the part of a medical practitioner. In a

strict sense the term, medical negligence, may not include

professional misconduct or malpractice of other kinds such

as fraudulent misrepresentation regarding eligibility or

qualification, prescribing unnecessary drugs or tests for

undue profit, taking undue advantage of the patient’s

situation etc. But, while addressing medical negligence from

a human rights perspective, the whole range of medical

malpractice and misconduct including the professional

negligence of medical professionals, has to be taken into

consideration. Because, all these vices have one thing

common in consequence; they cause serious violation of right

to health and access to medical care. More importantly,

these issues have a nexus at their origin and coexistence.

Therefore, while dealing with medical negligence and right

14

to health care, it is also essential to consider these

aspects of medical services in order to make a comprehensive

assessment.

We would like to go through these principles in the light of

some court judgments and try to understand as to what is

expected from a doctor as a reasonable person. As these

issues are at the core of medical profession and hospitals

are directly affected by new interpretation of an existing

law regarding medical professionals, it is pertinent to deal

with them at the individual level of the doctor, and also at

the employer’s level i.e., hospital.

1.2: Aims and Objectives of the Research

The present study aims at ascertaining the legal status of

medical negligence and fraudulent practice of private

clinics on review of existing laws and policies of

Bangladesh. It should be noted that the first part of the

title of the study ‘Medical Negligence’ refers to the

overall situation of medical negligence and malpractices

existing in both public and private sector, while the latter

part ‘Fraudulent Practice in Private Clinics’ refers to the

fraudulent practice of private clinics to signify a special

emphasis on that particular phenomenon. This study also aims

to identify the gaps and inconsistencies in the existing

15

laws and policies to ensure accountability of health care

service providers and to protect the right to health care of

the citizens. The study finally attempts to make certain

recommendations as to law and policy reform concerning

medical negligence and malpractice. The ambit of the study

is limited to the assessment of the relevant laws and

policies of Bangladesh. It also relies on a number of

previous works and publications, including some of ASK’s own

studies and publications.

After completing the Research Paper in fruitful manner we

shall be 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 of which the Patients are the victims of Death.

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 selected topic

for Research is “Medical Negligence: Law and practice in

16

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 started this research paper, I 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

This study is mainly based on analysis of the existing laws

and policies relating to medical services and medical

malpractice. It relies on a number of previous reports,

publications, laws and policies. The study also attempts a

17

comparative analysis of other countries’ experiences in

legislations and litigations involving medical negligence,

such as India, Nepal, Malaysia and South Africa.

This study makes a comprehensive assessment of the legal

regime of Bangladesh concerning medical negligence. Starting

from constitutional safeguards in favor of right to health

care, it analyzes the different aspects of policy

statements of the Government that have been reflected in the

National Health Policy of 2011 and other two policies on

development of women and children. The study examines a

series of statutes which are relevant to medical services.

The statutes reviewed in this study include:

. The statutes reviewed in this study include:

• The Vaccination Act, 1880 • The Drugs Act, 1940 • The Eye Surgery (Restriction) Ordinance, 1960 • The Pharmacy Ordinance, 1976 • The Drug (Control) Ordinance, 1982 • The Medical Practice and Private Clinics and Laboratories (Regulation) Ordinance, 1982 • The Bangladesh Unani and Ayurvedic Practitioners Ordinance, 1983 • The Transplant of Organ in Human Body Act, 1999 • The Safe Blood Transfusion Act, 2002 • The Consumer Rights Protection Ordinance, 2008 • The Bangladesh Medical and Dental Council Act, 2010

18

On identifying the gaps in the legal regime, this report

cites some statutory/legal arrangement of some other

countries in providing remedy against medical negligence.

1.5: Limitation of the Research

Every research study has some limitations. So this researchmonograph is not the exception of this limitation andreduced the scope of the study. The main limitation toprepare this thesis is time limitation. To make a fulfillthesis the time period is not sufficient. Another problem isthat every body talks, write articles on “MedicalNegligence” but there is no book from where we can informedabout “Medical Negligence. By going to make a research on“Medical Negligence: Law and Practices in Bangladesh” I haveto face some medical term which are totally unknown to me.Beside these, there are also some negligible problems tomake this thesis fruitfully.

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Chapter Two

Conceptual Analysis of Medical Negligence

2.1: Definition of Negligence

It is very difficult to define negligence, however,

the concept has been accepted in jurisprudence. The

authoritative text on the subject in India is the ‘Law of

Torts’ by Ratanlal and Dhirajlal.Negligence has been

discussed as:

Negligence is 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. Actionable

negligence consists in the neglect of the use of ordinary

care or skill towards a person to whom the defendant owes

the duty of observing ordinary care and skill, by which

neglect the plaintiff has suffered injury to his

person or property.

20

The definition involves three constituents of negligence:

(1) A legal duty to exercise due care on the part of the

party complained of towards

the party complaining the former's conduct within the scope

of the duty;

(2) breach of the said duty; and

(3) consequential damage.

Cause of action for negligence arises only when damage

occurs; for, damage is a necessary ingredient of this tort.

Thus, the essential components of negligence are three:

'duty', 'breach' and 'resulting damage'

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 ordinary care and

skill, by which neglect the plaintiff has suffered injury to

his person or property.[2]

21

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 tort 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. 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 The ‘Reasonable Man’

It has been held by the courts that the test of

reasonableness is that of the ‘ordinary man’ or also called

22

as the ‘reasonable man’. In Bolam case, it was discussed

that:

In an ordinary case it is generally said you judge

it by the action of the man in the street. He is the

ordinary man. In one case it has been said you judge it by

the conduct of the man on the top of a Clapham omnibus. He

is the ordinary man.

2.3: 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

23

damage is not direct, the damage is too remote, for which

there is no remedy

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]

2.4 Professional

According to the English language, a professional is a

person doing or practicing something as a full-time

24

occupation or for payment or to a make a living;

and that person knows the special conventions, forms

of politeness, etc. associated with a certain

profession. Professional is contrasted with amateur – a

person who does something for pleasure and not for payment

Negligence by professionals

The Supreme Court of India discussed the conduct of

professionals and what may amount to negligence by

professionals in Jacob Mathew’s case:

In the law of negligence, professionals such as lawyers,

doctors, architects and others are included in the category

of persons professing some special skill or skilled persons

generally. Any task which is required to be

performed with a special skill would generally be

admitted or undertaken to be performed only if the person

possesses the requisite skill for performing that task. Any

reasonable man entering into a profession which requires a

particular level of learning to be called a professional of

that branch, impliedly assures the person dealing with

him that the skill which he professes to possess

shall be exercised and exercised with reasonable

degree of care and caution….

He does not assure his client of the result…A physician

would not assure the patient of full recovery in every case.

25

A surgeon cannot and does not guarantee that the result of

surgery would invariably be beneficial, much less to

the extent of 100% for the person operated on…

…Judged by this standard, a professional may be held liable

for negligence on one of two findings: either he was not

possessed of the requisite skill which he professed to have

possessed, or, he did not exercise, with reasonable

competence in the given case, the skill which he did

possess. The standard to be applied for judging,

whether the person charged has been negligent or not,

would be that of an ordinary competent person

exercising ordinary skill in that profession. It is

not necessary for every professional to possess the highest

level of expertise in that branch which he practices.

…A highly skilled professional may be possessed of better

qualities, but that cannot be made the basis or the

yardstick for judging the performance of the

professional proceeded against on indictment of negligence.

2.5: Negligence by Medical Professionals

In Jacob Mathew case, the Supreme Court of India

has gone into details of what is the meaning of

negligence by medical professionals.

26

Negligence in the context of medical profession necessarily

calls for a treatment with a difference. To infer rashness

or negligence on the part of a professional, in particular a

doctor, additional considerations apply.

A case of occupational negligence is different from one of

professional negligence. A simple lack of care, an error of

judgment or an accident, is not proof of negligence on the

part of a medical professional. So long as a doctor follows

a practice acceptable to the medical profession of that

day, he cannot be held liable for negligence merely

because a better alternative course or method of

treatment was also available or simply because a more

skilled doctor would not have chosen to follow or resort to

that practice or procedure which the accused followed.

When it comes to the failure of taking precautions

what has to be seen is whether those precautions

were taken which the ordinary experience of men has

found to be sufficient; a failure to use special or

extraordinary precautions which might have prevented

the particular happening cannot be the standard for

judging the alleged negligence.

So also, the standard of care, while assessing the practice

as adopted, is judged in the light of knowledge available

at the time of the incident, and not at the date

of trial. Similarly, when the charge of negligence27

arises out of failure to use some particular

equipment, the charge would fail if the equipment was not

generally available at that particular time (that is, the

time of the incident) at which it is suggested it should

have been used.

2.5.1: 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

28

person with the requisite knowledge and skills would or

would not do.[7]

2.5.2: 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

(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.

2.6: 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.

2.6.1: Vis Major

29

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]

2.6.2: 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

30

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]

2.6.3: Contributory negligence of the plaintiff

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]

31

Chapter Three

Principles of Negligence and Burden of Proof

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

32

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.

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.

33

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

34

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 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

35

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

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

36

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

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

37

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]

38

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]

Thus, the following are the three essential requirements of

the application of the maxim:

39

(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.

40

-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

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

41

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. 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.42

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 relatives alleged he died

at about 4:30pm yesterday due to the negligence of the

doctors.[30]

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 patients43

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 Lab Aid

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

44

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

centers-one in Lab Aid, and another in Monowara Diagnostic,

at Panthopath, Dhaka. Three days later the result was

completely different in the two hospitals. Masum alleges

that the Lab Aid results showed that his father has not have

TB, and the Monowara Diagnostic test result showed that the

report was actually positive!.[33]

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.

45

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

46

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, referring a true fact about medical

negligence in private clinic of Bangladesh. This fact fact

will say about the clinical medical negligence in

Bangladesh.

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. 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 was47

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, 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 14th October. His wife was a48

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 18th 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]

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.

49

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.

50

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 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

51

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.

52

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]

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 of53

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.

54

0

100

200

300

400

500

600

Dow rydispute

DomesticViolence

Raped andKilled

Victim ofMedical

Negligence

Dow ry dispute

Domestic violence

Raped and Killed

Victim of MedicalNegligence

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 2008

on the basis of the news of the daily news papers. Where it

55

0

100

200

300

400

500

600

victim by medicalnegligence

children being thevictim of MedicalNegligence

victim by medicalnegligencechildren being the victimof Medical Negligence

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

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 are56

0

100

200

300

400

500

600

victim of M edicalNegligence

Student being the victimof M edical Negligence

victim of M edicalNegligenceStudent being the victim ofM edical Negligence

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

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.[5]57

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.A film star named Manna

died for the medical negligence on 17th February in 2008 at

United Hospital Dhaka on Sunday afternoon. He was also a

member of Zia Shangskritic Sanghatan.[55]

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 goes to a

doctor or a hospital there arise some

58

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

2. The right to safe and continuity of health care

3. The right to confidentiality

4. Right to get respect and dignity

5. Right to share idea

6. Right to get redress

7. Right to inform the highest authority when the rights are

violated.

8. Right to choice treatment and the method of family

planning

9. Right to get all documents relating to treatment

10. Right to receive all information about the treatment[56]

59

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

doctor-patient 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.

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

60

known as the Patient’s Bill of Rights. The summary of The

Patient’s Bill of Rights is given bellow:

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

6.2: Duties of the Patients

1. 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;

61

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.

2. 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.

3. 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.

4. Duty of truthfulness: The patient should be truthful

during the consultation and history-taking, thereby

inter-alias helping the achievement of a realistic

62

diagnosis. For instance, he should divulge everything

that is relevant, and he should avoid embellishment and

evasion.

5. 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 .[57]

6. 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.

6.3: Rights of the Doctors

A doctor has the following rights:

1. Right to privacy

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.

3. To withdraw from giving treatment to a patient if-

a) the doctor himself is not well or free.

63

b) the doctor has had a bad experience in the past.

c) He cannot be compelled to treat a patient in odd hours.

d) There is no legal obligation to answer a call to visit

the patient at his or her place of residence.

e) Doctor treats a patient in emergency on ethical grounds.

It does not mean that he has accepted the patient.

f) If a patient does not agree with the method of treatment

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.

Besides a Doctor have the following general rights. These

rights of doctor’s are shortly described here:[58]

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.

64

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 th em. 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.

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.

65

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.

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:

6.4.1: Duties of Doctors in General

1. A doctor must always maintain the highest standards of

professional conduct.

2. A doctor must practice his profession uninfluenced by

motives of profit.

The following practices are deemed unethical:

a. Any self advertisement except such as is expressly

authorized by the national code of medical ethics;

b. Collaborate in any form of medical service in which the

doctor does not have professional independence;

66

Receiving any money in connection with services rendered to

a patient other than a proper professional fee, even with

the knowledge of the patient.

Chapter Seven

Real conditions of the Health Sector and the Hospitals of

Bangladesh

7.1: The state of our health sector

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. The quality of

medicine has gone down and adulterated food, drink and

medication has created a negative impact all over the

67

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 Paracetamol-

based 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’. 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.’

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

68

were found to be responsible for mismanagement and

corruption, and were penalized. 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.

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.’

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. While an alarming number of

cases go unreported, the issue of accountability is hardly

on the agenda of health care sector in Bangladesh.

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 the69

Num ber

589, 0%2271, 1%38171, 21%

36244, 20%

49994, 27%

23729, 13%

12382, 7%14377, 8%

5000, 3%

Governm ent Hospital

Registered Private Hospital

No. of Bed in Governm entHospitalNo. of Bed in PrivateHospitalRegistered Doctor

Registered Nurse

Doctors in Governm entServicesNurses in Governm entServicesTrained M idwives

last two years many such clinics, especially those outside

Dhaka City, have been fined or shut down due to malpractice

and fraud. In Dhaka, Lab Aid and United seem to have gained

some notoriety, especially in recent times.

7.1.2: Chart: health condition of Bangladesh at a glance

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. According to

the health department of Bangladesh government, there are

70

estimated one doctor for every 2860 people and one nurse for

every 5720 people. 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. According to the WHO the estimation of doctor

and nurse for every 10,000 people in South Asian countries

are as follows

Country Doctor Nurse

Bangladesh 3 3

India 6 13

Srilanka 6 17

Pakistan 8 5

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

71

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.

According to health department, 6861 posts of doctor and

16707 posts of nurse & medical assistants are still empty.

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

72

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 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.

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 Causes of Medical Negligence and Medical Wrong

In course of providing the aforesaid services, medical

negligence is a common phenomenon. Numbers of such

incidents are unknown in Bangladesh, as there is no

accurate data recording system. However, i n t h e

n e w s p a p e r s , a l m o s t e v e r y d a y , t h e r e i s n e w s o n

m e d i c a l negligence of a kind or the other. In

microscopic level, legal actions are seen to be taken for

wrong diagnosis, Wrong prescription, wrong doses of

medicine, Wrong or faulty medical equipments , lack

of maintenance, Prescribing extra medicine with

business i n t e r e s t , M e d i c a l C o r r u p t i o n , O u t -

d a t e d m e d i c i n e s , M e d i c a l Malpractice, Breach of

Confidence by the Doctors and Nurses, False Medical

Certificates, Lack of quality Care

73

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

74

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

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.

Article 8 speaks of social justice

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

provision of the basic necessities of life, including

food, shelter, education and medical care.[60]

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

75

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.

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.

76

8.2: Remedies under Human Rights Law

Human right to health is now widely recognized in numerous

international instruments. Universal Declaration of Human

Rights

• Article 25( basic necessities)

‘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.’

International Covenant on Economic, Social and Cultural

Rights 1996

• Article 12( enjoyment of the highest attainable

standard of physical and mental health’ )

Right to health is also recognized in the following

conventions

• International Convention on the Elimination of All

Forms of Racial Discrimination of 1965 (Article 11)

77

•  Convention on the Elimination of All Forms of

Discrimination against Women of 1979 (Article 12)

• Convention on the Rights of the Child of 1989 (Article

24)

• European Social Charter of 1961  (Article 11)

• 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.

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,

78

2. Medical Practice and Private Clinics and Laboratories

(Regulation) Ordinance, 1982 and

3. Drag (Control) ordinance, 1982 etc.[61]

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.

But till December 2007 there is not found any single prove

that such measures has been taken against any doctor. At

present how much allegation is deposited in BMDC and what is79

present situation of these allegations, there is no

information about these.

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.

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

80

negligence. There exist 45 civil statutes relating to health

affairs. 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.

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

are-

1. 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.

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.

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.

4. For much cost of the suit the victims are not

interested to file a suit in the court.[8

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 may81

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.Sections 269 and

270 covers punishments for negligent

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

82

with fine which may extend to one thousand taka, or with

both.”

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.[62]

. There are some materials, though these are used as

medicine, but under Section 275 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.

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

83

used from a medicinal dispensary; or that he

caused it to be used for medicinal purpose.

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.[63]

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 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.

Section 304A of the Penal Code, 1860 deals with causing

death by negligence.

“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.”

84

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 patient a toxic medicine

in replace of good one. Here, offence under section 304A has

been committed.

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.[According to section 304A, both

are equal offence.

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

85

Secondly, whether such act was done with due thought and

caution or not.

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.

Where the negligence is mot directly related to the death of

the deceased person, then the accused person is entitled to

get facilities. 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.

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

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.”

86

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.[64]

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.

87

Chapter Nine

Recommendations

The following recommendations may be consider for proper

remedy of medical negligence.

9.1: Statutory Recommendations

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

88

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.[65]

2. With these inclusions, the definition of medical

negligence, its types and its scale must be clearly

mentioned.

3. In case of medical negligence, all the procedural

complication must be removed.

89

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.

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.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. 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 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.

90

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.[66]

9.2: Other Recommendations

The following recommendations may also be considered.

9.3: 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,

91

right to choice treatment and the method of family planning,

right to get all documents relating to treatment etc.[67]

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.[68]

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.

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.

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.

6. Unwanted political interfere should be reduced.

92

7. The budget for health sector should be increased and

proper use of such budget must be ensured.

8. The government should establish a separate Food, Health,

Cosmetics and Consumer Tribunal.[69]

9.4: 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

2. During the renewal of the doctors registration there

should a measure for the reevaluation.

3. The environment of the hospitals should make as the

patient intensive.[

4. The accountability of the management of the hospitals

must be ensured.

5. The tribunal of the BMDC should make active.[70]

93

Chapter Ten

Concluding Chapter

10.1: 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.

10.2: Statutory Limitations

94

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 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.

95

10.3 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 prima-facie 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.

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.

96

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.

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.

10.4: Obstructions on Criminal Remedy

In case of criminal offence the following three obstructions

creates an obstruction from getting proper remedy.

10.4.1: 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

97

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.

10.4.2: 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.

10.4.3: 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

98

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,

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.

10.4.4: 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.

99

2. Investigating officers has lack knowledge and technical

ability in case of dealing of a case.

3. Destroy of the evidence as a result of delay.

4. Lack of Knowledge of the lawyers and the judges

regarding this matter.

5. It is difficult to collect medical records, witness,

etc.

6. Lack of the provision for taking technical opinion.

Bibliography

Books Name

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

2. Durga Das Basu, ‘The Law of Torts’ 11th Edition

3. Gazi Shamsur Rahman, Dandabidhir Vashya, 6th Edition

(amended), July 2001, Re-printed2007

100

4. Msrkesinis and Dekinn, “Tort Law”, 5th Edition

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

6. Ratanlal Ranchhodas and Dhirajlal Keshavial Thakore,

“The Indian Penal Code” 28th Edition

7. Zahirul Huq, The Penal Code, 4th Edition 2001

Journals

1. Daily New age, 11th may 2007, Xtra Cover

2. Daily Prothom Alo

3. Daily Star

4. Pakistan Criminal Law Journal 1970, Page-1159

5. . Pakistan Criminal Law Journal 1985, Page-813(Lahore)

6. World Medical Association Bulletin, vol. no.1, 3rd

October 1949

Websites

1. http//cancer.org/Treatment/

FindingandPayingforTreatment/

UnderstandingFinancialandLegalMatters/patients-bill-of-

rights

101

2. www.california-personal-injuuy.com/medical-malpractice-

legal-glossary/ medical- malpractice-legal-

glossarym.html

3. http:// www.Emedicinehealth.com/patients_rights

/article_em.htm

4. en.wikipdia.org/wiki/Medical_negligence

5. http://www.expresshealthcaremgmt.com/20021231/

focus4.shtml

6. http://www.highbeam.com/doc/1G1-174942758.html

7. http://jme.bmj.com/content/33/12/689.full

http://www.newagebd.com/2009/jul/05/edit.html

8. http://www.newagebd.com/2008/feb/29/feb29/

xtra_cover.html

9. http://www.newagebd.com/2007/may/11/may11/

xtra_cover.html

10. http://www.odhikar.org/report/pdf/child.pdf

http://www.thedailystar.net/newDesign/news-details.php?

nid=143251

http://www.upiasia.com/Blogosphere/williamgomes/2009022

2/victims_of_brutality_women_in_bangladesh/.

[1] Noshirvan H. Jhabvala, “The Law of Torts”, 25th

Edition ,

102

[2] Heaven vs. Pender, 1883 11 Q.B.D.507.

[3] Ibid

[4] Philips India Ltd. V. Kunju Punnu, (1974), B.L.R. 337.

[5] Pfizer Corp vs. Ministry of Health 1965 AC 512.

[6] Available on: en.wikipdia.org/wiki/Medical_negligence;

last accessed on: 18/11/2013

[7] Available on:

www.california-personal-injuuy.com/medical-malpractice-

legal-glossary/ medical-

malpractice-legal-glossarym.html; last accessed on:

18/11/2013

[8] Noshirvan H. Jhabvala, “The Law of Torts”, 25th

Edition ,

[9] Niochls v. Marsland, L.R. 2 Ex. Div. 1.

[10] Noshirvan H. Jhabvala, “The Law of Torts”, 25th Edition

,

[11] Cleghorn v. Oldham, (1927) W.N. 147.

[12] Butterfield v. Forrester, (1809), 11 East 90

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

103

2. Froom vs. Butcher, (1975) 3 All E.R. 520 (524) C.A.

[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).

[17] . Durga Das Basu, ‘The Law of Torts’ 11th Edition,

[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

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

[22] Ibid

[23] Noshirvan H. Jhabvala, “The Law of Torts”, 25th Edition

,

[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

[27] Ibid,

[28] Noshirvan H. Jhabvala, “The Law of Torts”, 25th

Edition,

104

[29] Sidhraj Dhadda v. State of Rajastan, A.I.R. 1994 Raj.

68;

[30] Available on:

http://www.thedailystar.net/newDesign/news-details.php?

nid=143251, last accessed on: 02/11/2013

[31] Available on:

http://www.newagebd.com/2008/feb/29/feb29/xtra_cover.html;

last Accessed on: 21/11/2013

[32] Ibid

[33] Ibid

[34] Daily New age, 11th may 2007, Xtra Cover; Ref:

http://www.newagebd.com/2008/feb/29/feb29/xtra_cover.html

[35] Ibid

[36] Ibid

[37] Ibid

[38] Available

on:http://www.newagebd.com/2007/may/11/may11/xtra_cover.html

; last Accessed on:21/11/2013

[39] The Daily New Age, 11th May, 2007, Xtra cover

[40] Ibid

105

[41] Chikitshai Obohela, Ain O Salish Kendra , December,

2008,

[42] Chikitshai Obohela, Ain O Salish Kendra , December,

2008.

[43] Ibid

[44] Chikitshai Obohela, Ain O Salish Kendra , December,

2008.

[45] Chikitshai Obohela, Ain O Salish Kendra , December,

2008.

[46] Ibid

[47] A case study conducted at the City Hospital on:

07/11/2010

[48] Ibid

[49] http://www.upiasia.com/Blogosphere/williamgomes/

20090222/victims_of_brutality_wome n_in_bangladesh/; last

Accessed on: 23/11/2013

[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

106

[53] Chikitshai Obohela, Ain O Salish Kendra, December,2008

[54] Ibid,

[55] Ibid

[56] https://www.samedical.org/drs-patients-rights.html

[57] https://www.samedical.org/drs-patients-rights.html

[58] https://www.samedical.org/drs-patients-rights.html

[60]  Constitution of Bangladesh.

[61] Chikitshai Obohela Ain o Salish kendro

[62] Zahirul Huq, The Penal Code, 4th Edition 2001,

[63] ibid

[64] ibid

[65 ] Chikitshai Obohela, Ain O Salish Kendra, December,

[66] ibid

[67] ibid

[68] ibid

[69] ibid

[70] ibid

107

108