Law campaign
Law Commission's proposal of making medical negligence law
What can be nobler than engaging in medical profession? A doctor appears as the sole savior in times of ailments and other physical and psychological disorder. However, it is also true that at times we face negligence on the part of the doctor, which imprints a bad impression in the corpus of this righteous profession. The question, therefore, often haunts us: should the doctors be made accountable for their malpractice or negligence? If so, to what extent? Because, the other side of the coin is that if there is a likelihood of degradation of the patient, the doctor may not be willing to give treatment for the fear of a compulsive legal sanction. Overall, the profession is a very delicate and sensitive one. Doctors receive blame frequently, than bouquet of flower. However, it cannot be denied that amidst the present hospito-patho-culture, capital runs faster than the right to life. State's indifference in addressing the alleged malpractices in the medical centers has added an extra salt to the menu. The widespread practice is that there remains a governing law to oversee the matter. Therefore, necessity of a medical negligence law can hardly be overemphasized. Recently, Bangladesh Law Commission under the Chairmanship of Professor Shah Alam has come up with a proposal to make legislation on the point in order to address the widespread allegations of medical negligence in the country. The move deserves appreciation and attention.
Law Commission's proposal is based on a single basic premise: to raise the standard of health service for the people without obviating the interest of the professionals and concerned authorities. In making a medical negligence law, the first challenge is to legally define and determine the nature of medical negligence. Much depends upon how does the law view 'negligence' itself. Normally, negligence is defined as 'failure to exercise reasonable care and skill' in a particular situation. Pending a draft, the Commission has succinctly presented some basic tenets of negligence: i) the alleged commission or omission must have a causal relation in order to be qualified as negligence, ii) in determining 'negligence' it is to be seen whether in a given situation a person of general prudence would have taken a particular step in that situation and iii) even the state of negligence is to be determined in the light of overall consideration i.e. hospital facilities, assistants' and staffs' activities and behavior etc.
There is a debate as to who would determine the issue of negligence, because the judicial court lacks proper expertise to judge medical matters. On the other hand, if another doctor/body of doctors are relied upon to adjudge the incident of 'negligence' that may very much attract the 'principles against biasness'. The Commission after consulting the established case laws of some other jurisdictions (UK, Australia) has observed that the expert's opinion (on whether negligence has occurred) must come under serious judicial scrutiny in any event. A striking balance between the expert's opinion and that of the court may solve the conundrum.
The Commission has lucidly explained why a separate medical negligence law is inevitable. The prevailing penal law is either trivial or vexatious. The law of torts, being a product of common law, swims in a grey area in Bangladesh, as a result, in absence of a specific legislation, strong case law jurisprudence has not been molded. The consumer law proves to be inert, though the same has tremendously helped to tune some innovative justicing in case of medical negligence in our neighboring country India. The main criticism of invoking consumer law in health rights sector is that it has the tendency to regard Medicare as merely a product. The necessity of enacting a separate medical negligence law, according to Law Commission, is further necessitated by the fact that the Bangladesh Medical and dental Council's power is very confined. They lack power to address the 'negligence' issue. Furthermore, The Code of Medical Ethics, 1991 touches the matter in a triviality. In suggesting the enactment of the new law, the Commission has not forgotten to strengthen the power of the BMDC and Director General of Health Department within the law's purview. Following recommendations are noteworthy:
i) Medical negligence is to be properly defined with its nature and uniqueness. To determine such matter a committee composed of doctors, experts and citizen representatives may be formed.
ii) The relation between doctors and the pathologies and diagnostic centers needs to be revisited.
iii) Proper management of the privately and government owned hospitals would reduce the case of negligence.
iv) Special type of civil courts to redress the negligence issue by way of awarding compensation and alternative dispute resolution may be constituted.
v) An avenue to go to BMDC may be opened as a prior step of resorting to court. In that case, the constitution, powers and functions of BMDC may be remodeled and reformulated.
vi) The hospitals or medical centers will have to take vicarious liability for the works of doctors, assistants and all other staffs.
vii) The government is to fulfill its constitutional and human rights obligation to ensure the right to health of the people by recruiting more doctors, supplying modern technological appliances etc.
viii) Medical ethics should be studied with more importance in the medical curricula.
The proposal of Law Commission is driven by the urge of the day. Government is under an obligation to regard its recommendation with high esteem. Otherwise, such Commission's elegance becomes confined within the paperwork. There should also be a pragmatic role to be played by the doctor community. In standard countries like USA, UK, Germany, Australia and India, medical negligence litigation is credited with bringing about safer practices in the health care provisions. All health professionals involved in this service should become increasingly aware about their legal obligations towards their patients and clients. If necessary, further talk may take place within the legal, citizens and doctors fraternity in order to make a legal regime on medical negligence.
The writer is Assistant Professor, Department of Law, Jagannath University, Dhaka.
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