By Md. Zillur Rahaman

Allegation of patient death or any other kind of harm due to medical negligence or wrong treatment is not new in our country. Recently another child died while undergoing circumcision. The United Hospital incident was repeated in a medical center in Malibagh. A class IV student of Motijheel Ideal School and College did not wake up after giving anesthesia. The child was admitted to a medical center in Malibagh around 8 pm on February 20 for circumcision and was declared dead within an hour.

Two accused doctors were arrested immediately after the incident. Relatives alleged that general anesthesia was supposed to be administered, but the child was given full anesthesia and later he did not regain consciousness. The child's father complained that the doctor repeatedly pushed the anesthetic into the body, and the hospital authorities, including the doctors concerned, are responsible for this death.

Earlier on December 31, a child named Ayham was taken to United Medical College Hospital in Badda for circumcision. The child was given anesthetic around 9 am. Later he was sent to United Hospital in Gulshan as he did not regain consciousness. He was kept on life support for seven consecutive days in the PICU (Child Intensive Care Unit) there and doctors declared the child dead on January 7 midnight.

A case of death in a treatment as common as circumcision has never been heard of before, two cases in a row of doctor's negligence have given rise to much discussion, criticism, curiosity and many questions. Soon after the incident, a young man named Rahib Reza died while undergoing treatment in the ICU at the capital's LabAid Hospital. Relatives of the patients complained that these deaths occurred due to the negligence of the doctor. Although medical negligence or wrong treatment is a punishable offence, there are very few examples of taking legal action and exemplary punishment of the concerned doctor in our country.

The Medical Practice and Private Clinics and Laboratories (Registration) Ordinance, 1982 provides guidance on many matters including the determination of fees for doctors in Bangladesh. Medical malpractice is not only related to 'operation' or surgery, but also includes improper examination of the patient, mistreatment of the patient, haggling over fees, giving wrong medication, keeping a dead patient in ICU, forcing the patient, not treating the patient elsewhere, abandoning a patient, not providing treatment on the pretext of non-availability of hospital beds, false reporting of health issues—these are also included in medical negligence.

But medical negligence in legal parlance means that when a patient comes to a doctor for treatment, an unwritten specific contract, whether written or not, is created between the two. There the matter of providing services in exchange of money or without exchange becomes important. Medical negligence basically refers to the negligence of doctors and related persons associated with the patient's treatment.

In Bangladesh, relatives often complain of patient deaths due to wrong treatment or negligence. The only place to make such a complaint is the Bangladesh Medical and Dental Council or BMDC, a statutory government body that regulates doctors. As per the rules of BMDC, when a written complaint is sent to the accused, time is fixed for reply and the reply of the accused is communicated to the complainant. If he does not accept it, an investigation committee is formed and arrangements are made to settle the complaint. In this case there is a provision to suspend the accused doctor's license. But Sections 80 and 88 of the Penal Code of 1860 exempted the physician from liability for accidents 'in the course of medical treatment carried out in good faith'.

However, in most cases in Bangladesh the victims are not well aware of or do not go through the process of BMDC. The law also does not clearly say anything about the liability of doctors. If such cases are too many, complaints can be made to BMDC. The inquiry committee consists of doctors and investigations and complaints are mostly unsubstantiated or the decision goes in favor of the doctor.

Moreover, when allegations of negligence are raised against doctors, they create obstacles in proving the allegations by carrying out strict programs like strike. However, there is scope for criminal prosecution in case of death due to negligence. According to Section 304A of the Penal Code of 1860, if a person causes the death of another by any reckless or negligent act and the offense is not punishable by homicide, then the person shall be considered negligent.

For this, he can be punished with rigorous imprisonment or fine or both for any term up to five years. Whether or not an offense has been committed under this section, three elements are required to be proved. They are, the person died due to negligence, the death was caused by negligence and the negligence is not considered culpable homicide. According to this section, the police can arrest the accused doctor without a court warrant if there is an allegation of medical negligence. The victim is often forced to file a writ in the High Court. But the Supreme Court discourages routine arrest of a doctor in these cases.

However, most complaints in Bangladesh end up in courts as a civil or criminal case, and doctors are rarely held accountable due to the lack of an adequate legal framework. Although the BMDC is the body responsible for ensuring the conduct of doctors, in its entire history it has disciplined only 14 doctors and only one doctor has lost their license permanently. But the picture is in stark contrast with neighboring India, where nearly 52 lakh complaints of medical negligence are filed every year. India's National Consumer Disputes Redressal Commission awarded compensation in 135 out of 253 medical negligence complaints it reviewed from 2015 to 2018. Due to these reasons doctors in India are very aware of these issues and many patients of our country travel to India for treatment every year.

According to a recent BBC report, India's Penal Code of 1860 stipulates a two-year prison term for the death of a patient due to medical negligence. There is also a provision to approach the appropriate civil court for monetary compensation. Various sections of the Consumer Rights Protection Act provide for compensation ranging from one crore to ten crore rupees to the victim.

Moreover, India has the “Indian Medical Council” which takes disciplinary action against doctors and can suspend or revoke the license of doctors. On the other hand, in UK law, doctors are regulated by the General Medical Council and hospitals are regulated by the Care Quality Commission. The country has strict laws on medical negligence. This is popularly known as “Medical Manslaughter Law”. Although the law is quite old, it was amended by the country's parliament in 2018. The General Medical Council can revoke a doctor's license subject to investigation if a patient complains in the country. An independent committee investigates whether there has been any gross wrongdoing or negligence against the person accused under this Act. If proven, there is a provision of cancellation of license and imprisonment of two to ten years.

However, in Bangladesh last year the Ministry of Health drafted a law called “Health Care and Protection Act 2023” but it has not yet been enacted into law. In the proposed draft law, if a patient dies due to medical negligence, it is said to be prosecuted under the criminal law and the compensation determined by the court. The said draft mentions the recommendation of cancellation of license if applicable to hospitals and cancellation of registration in case of doctors and at the same time it is mentioned that all these offenses will be cognizable, bailable and negotiable.

One of the reasons doctors are not effectively prosecuted for medical negligence is the legal ambiguity surrounding the offense and lack of proper enforcement. Due to this, medical negligence is increasing at an alarming rate. Meanwhile, the health minister said in a statement that the negligence of doctors and authorities in the hospital will not be accepted in any way. We are deeply saddened by such incidents and noticed such an incident a few days ago. We have also taken appropriate action in that incident. However, even after that incident, those who could not be careful, such negligence or neglect of any responsibility will not be accepted in any way. Just as the negligence of doctors in treatment is not desired by anyone, it is also the responsibility of the state to create an environment so that doctors and health workers can perform their duties freely without fear.

The writer is a Banker and Columnist