William Shakespeare famously quoted the soliloquy, “To be, or not to be: that is the question” in Hamlet, to express Hamlet’s dilemma of whether to be alive or dead. Although our judiciary and legislature are constantly required to make challenging decisions in line with this soliloquy, it is incomprehensible as to why the legal system is in such a big dilemma to initiate the practice of Tort law in Bangladesh. “Tort” derives from the Latin term ‘tortum’, and encompasses a wrongful act or an infringement of a right (other than breach of contracts), leading to a civil as opposed to a criminal claim. This demanding area of law is thoroughly practiced in almost all developing common law countries, whereby, those initiating a claim (claimants) receive monetary damages for negligence that caused the wrongful act.
Medical malpractice falls under ‘personal injury law’, a legal term used in common-law jurisdictions to refer to a type of tort lawsuit, where the claimant suffered from an injury to the body, mind or emotions as opposed to an injury to property. For the purpose of this article, “practitioners” include all types of healthcare professionals, such as doctors, nurses, healthcare administrators, physical therapists, dentists, and psychologists, amongst others.
Despite being a common-law jurisdiction, our people are unfairly deprived of holding medical practitioners accountable for a genuine claim of medical malpractice or negligence
Since the purpose of my article is not to antagonize doctors or hospitals (public or private), it is incumbent on me to stipulate that medicine by nature is a risky profession, and not all medical injuries give rise to negligence. To bring a valid claim under tort, you need to prove that 1) the practitioners/hospital owed you a duty of care, 2) the practitioners/hospital failed to provide a reasonable standard of care, 3) the injuries suffered/death were reasonably foreseeable, 4) the practitioner’s actions were the proximate cause of your injuries and 5) you suffered actual, demonstrable damages. Some examples include but are not limited to: failing to obtain or review medical history before treatment; not ordering sufficient or appropriate diagnostic tests; failing to warn you of significant risks of treatments; failing to advise you on all your treatment options; not communicating with other attending practitioners about your condition; operating on iron body parts; performing unnecessary surgeries; prescribing wrong medications or dosage; failing to provide a proper follow-up.
Unfortunately, since tort or personal injury law is not practiced in Bangladesh, despite being a common-law jurisdiction, our people are unfairly deprived of holding medical practitioners accountable for a genuine claim of medical malpractice or negligence. This unaccountability of healthcare practitioners is the leading cause of the prevalence of medical malpractice. According to a Canadian Medical Association Journal study, over 87,000 patients in Canada suffer from medical malpractice, and preventable medical errors contribute to between 9,000 to 24,000 deaths yearly. In contrast, Ain O Salish Kendra’s report indicates that only 504 instances of medical malpractice were listed from June 1995 to September 2008. Evidently, this comparison draws two questions in mind: (1) is Bangladesh’s medical system running without the practitioners’ negligence or error, unlike other developed countries? Or (2) has the unaccountability of practitioners and the norm of non-reporting made the numbers stagnant? I solemnly believe it is not a work of art for the readers to figure it out.
Back to the accountability issue, Bangladesh relies on few national strategies to combat medical malpractice, which unfortunately does not have a simple, all-inclusive, and codified legislation. We depend on constitutional, criminal, civil, or international instruments to fight against medical malpractice, which is a complex and ineffective process for reasons I will discuss below.
Back in 2019, I worked on a landmark judgment concerning a Public Interest Litigation (PIL) on behalf of Bangladesh Legal Aid and Services Trust (BLAST), that relied on Articles 27, 31 and 32 of the Bangladesh’s Constitution to hold the Government (Secretary of the Ministry of Health and Family Welfare, Director General of the Directorate of Health Services and the President of Bangladesh Medical and Dental Council) liable for: 1) failing to effectively regulate private and public maternal healthcare service providers and 2) prevent medically unnecessary caesarean-sections (c-sections) in such hospitals.
This PIL evolved from medical malpractice at Tungipara clinic, which was owned by two sham doctors who killed a woman while performing a c-section on her. The Supreme Court issued a rule for the claimants and passed an interim order, directing the Government to form a committee of stakeholders and formulate guidelines (that will have legal effect until a legislation is formed) to prevent medically unnecessary c-sections. As part of the multidisciplinary stakeholder committee, we formed a National Action Plan to stop unnecessary c-sections and promote normal delivery in association with Save the Children, DGHS, BMDC, ICDDR,B and others.
Although, applying Constitutional law/PIL resulted in a National Guideline, the problem is that, PILs only generate positive outcomes in the clearest of cases. As in, tackling medical negligence using PILs is very rare and will provide an outcome for just one aspect of medical negligence (such as, preventing medically unnecessary c-sections only).
Furthermore, we can rely on Criminal law for medical malpractice, whereby sections 304A and 336 of the Penal Code 1860 define ‘negligence’, and other sections of the Penal Code provide limited remedies. Consumer Rights Protection Act, 2009 is another instrument that safeguards against malpractice. However, these criminal law remedies are limited to seeking ‘revenge’ in the form of imprisonment or fine. On the contrary, had Bangladesh practiced personal injury law, a civil lawsuit could have been brought against doctors and hospitals simultaneously, that could have been worth a lot of money in damages (depending on the severity of injury or harm).
Similarly, Bangladesh too, offer civil remedies for monetary compensation pursuant to s.9 of the Code of Civil Procedure, 1908. It is stated in s.23(a) of the Bangladesh Medical and Dental Council Act, 2010 that professional misconduct or violation of the Act by any physician will result in cancellation of their registration, which has seldom been implemented. As per s.5(a) of the Code of Medical Ethics, “gross negligence” of dentists and medical professionals may be regarded as misconduct sufficient to justify suspension or removal from the Register. Unsurprisingly, the term “gross negligence” is not even defined in the Act.
Countries like Canada, America and the UK practice personal injury law, which covers a wide range of medical negligence. In Canada, people can choose to bring a claim under either criminal or personal injury law. However, almost everyone prefers the latter because the legal standard to prove liability, that is, “departure from the standard of care of a reasonably prudent person”, is lower than criminal law, which is “marked and substantial departure from the standard of a reasonably prudent person”. Moreover, who does not want a remedy worth thousands or million of dollars for the loss of enjoyment of life due to pain and suffering (general damages), and the loss of past and future income and competitive position in the marketplace (specific damages)?
Practitioners in Ontario, Canada, sue doctors under the Negligence Act, 1990 and jurisprudence (using case law). In addition to doctor’s negligence, Canada can simultaneously bring a claim under Occupier’s Liability Act, 1990 (another field of tort law that is codified in statute) to hold hospitals accountable for breach of statutory duty of care, which is, ensuring that every patient entering hospitals’ “premises” are reasonably safe. Few other legislations in Canada that impose a duty of care on the doctors and are thoroughly implemented, unlike Bangladesh, are the Regulated Health Professions Act, 1991 and the Drug and Pharmacies Regulation Act, 1990.
To draw on a practical example from Canada, our injured client brought a successful medical malpractice lawsuit against a Canadian public hospital called the North York General Hospital, and the doctor who operated on her, for breaching their occupier’s duty of care and fiduciary duty respectively (negligently, left two staples inside the patient’s bladder while performing a surgery to remove prostate cancer). Therefore, given the prevalence of medical malpractice in Bangladesh, why are the legislature and the judiciary still pondering like Hamlet, that is, whether to initiate or not to initiate the practice of personal injury law in Bangladesh? Rather, the question should be “WHEN to initiate” this practice within our common law jurisdiction. If authorities act now, the future of effectively combatting medical malpractice in Bangladesh is not bleak.