PART-VI Implementation of Existing Laws On Medical Negligence Chapter 7

Chapter 7
7 Problems of Implementing Laws on Medical Negligence:
Bangladesh faces many difficulties in implementing the rights of the victims of medical negligence. It does not
have any national health rules still now. The standard of right to health is generally determined by the rules,
which act as an indicator. Where the treatment given by a doctor falls below that standard the patient is said to
have been the victim of medical negligence. Other factors, which create hindrance in making complaints
against medical negligence, have been disused as follows:
7.1 Absence of Law:
As the law on negligence is uncodified in the form of statute, generally attempts are made to give relief to the
victims under the general laws. Bu these attempts have not been proved to be effective. Criminal cases are
generally filed against it under the provisions of the Penal Code dealing with negligence or other relevant
sections in this regard. But it cannot be appreciated as a proper way. Because these provisions are applicable
not only in the field of medicine but to other professions also; an accident caused by the negligence of driver
can even be brought within these sections. In fact in Bangladesh most of the cases under these sections are
filed against drivers negligence. The main problem of proceeding under this section is that they say nothing
about the principles as to how duty of care should be determined, what is standard of care and how damage
should be proved. These are the subjects of the law of torts. But there is no codified law on this subjects in
Bangladesh, and this law has not been developed here by judicial decisions. So victims cannot claim remedy
under this law from a civil court.
7.2 Higher Court Fee:
To impose penalty upon a guilty doctor is not sufficient to satisfy the victim. He should be paid compensation
for the injury caused to him by negligence. It requires a suit to be filed before a civil court, which involves
high court fee. So it is very difficult especially for the poor litigants to bear the expenses of such a suit by
paying the court fee.
7.3 Complex Process of the Court:
The process of the court is dilatory, complex, and costly. It makes individual safeguards and remedies
inaccessible to people. They prefer to take no step in many cases even though they have suffered injury.
Because coming before the court to get relieves may cause to them a further pain.
7.4 Difficulties Regarding Proof of negligence:
It is very difficult to prove a case of medical negligence owing to following reasons: (i) Due to the technicality
of medical issues a doctor is required to prove the negligence of another doctor against whom a charge for
negligence has been brought.

The doctors generally do not give testimony against his fellow doctor. The court has to face trouble in proving
a case because of the non-cooperation of such witnesses.
(ii) Every patient does have a right to know about the steps taken by the doctor for his treatment and the doctor
is under an obligation to provide such information. This right of the patient is recognized in all civilized
countries. But in Bangladesh the patients are not served with any document containing such information except
birth or death certificate and discharge certificate etc. In the absence of the necessary documents, it becomes
very difficult to prove a case of negligence.
7.5 Incompetent Judges and Medical Regulatory Bodies:
Because of the technical nature of medical issues, the judges may not be considered as competent persons and
to decide what is reasonable and what is not in particular case. A probable solution to this problem is to
allocate this function to medical experts and regulatory bodies who are more equipped to handle the subtleties
of medicine as a profession, 79 But in Bangladesh these regulatory bodies do not pay such a role, which is
generally expected from them.
7.6 Inactive Medical Regulatory Bodies:
Bangladesh Medical and Dental Council is the only authority to regulate and control the professional conduct
of the doctor and to take appropriate actions in the case of the negligence. But the actions taken by the Council
are very few. 80 The people even do not know about the existence of such a body, where they may complaint
regarding negligence of doctor. As a result it has become an inactive organization. Another problem is that the
BMDC is subject to some limitations while exercising disciplinary function. it cannot always take action
against a doctor who has committed negligence. Because its jurisdiction is limited to the doctors who are
practicing privately or who are the employees of private clinics. If the doctors act under a hospital authority,
the council has nothing to do with the doctor and the hospital. In such a case Director General of Health or
Health Ministry can take action, They rarely exercise their function in this regard.

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79

Sultana Nishat, Medical Negligence in Bangladesh; An Introduction law Vision, Issue: 9 Department
of Law, University of Chittagong, (2004-2005), p.52.

80

Damayanti S. What is Medical Negligence? What are the Standard of Care Principles op. cit, p. 44.

7.7 Commercialization of Medicine:

There is a growing commercialization of medicine what with quid pro quo deals between physicians
anddiagnostic center. Private clinics have become a very profitable business and many people who do not have
any connection with medicine are the owners of such clinics. These are not well equipped. Low paid junior
doctors; untrained nurses, lack of emergency machines etc. are the main treature of these clinics. These factors
facilitate medical negligence to a large extent. The patients coming to these institutes have to suffer bitterly
instead of getting proper treatment.

7.8 Absence of Consumer Protection Law:

The costly slow and complex process of the court discourages the people to have resort to the ordinary courts.
It requires a system to be introduced which would enable the victims to have an easy access to justice, which
would be more flexible, free of cost and quick in service. A forum established under an Act like Consumer
protection Act can give such a remedy. But unfortunately Bangladesh does not have adopted such a
comprehensive Consumer Protection Law still now.
7.9 Lack of Awareness of the People:
In Bangladesh most of the people are illiterate, who are totally ignorant of the right to make complaint against
medical negligence. Even the educated people are not familiar with this terminology. As a result, the steps
taken either by the court or by medical regulatory bodies in this regard are rarely found.
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