Tort law is a subset of civil law that addresses civil wrongs and enables people to pursue damages for injuries they have suffered as a result of the carelessness or conduct of others. Under Bangladeshi tort law, compensation measures are the main means of redress for victims of carelessness, including medical malpractice. It consists of special damages (compensation for measurable financial losses, such as medical bills, lost income, and rehabilitation costs) as well as general damages (for non-economic losses, such as pain, suffering, and emotional distress).
One common method of receiving compensation for legal wrongs that may not cause major suffering or financial loss is nominal damages, which are small sums awarded. This acknowledges the breach of obligation without significant harm.
Punitive damages, although less common in Bangladesh, may be awarded in cases where the carelessness was particularly severe or deliberate, in order to deter future instances of similar behaviour.
It is essential for patients in Bangladesh to understand tort law and how it relates to medical malpractice. The possibility of legal action is increasing along with public awareness, ensuring that medical professionals are held accountable for their actions and that patients are fairly compensated for injuries sustained due to negligence.
Medical negligence encompasses not just the carelessness of medical professionals but also that of auxiliary staff, nurses, hospital administrators, technicians and suppliers of medication. This situation arises largely due to a lack of accountability. Most individuals are unaware that the medical service is legally required to take corrective action for a number of offences, even though such regulation exists. Consequently, there is a daily rise in medical negligence-related incidents.
Such negligence in the medical field and the occurrence of various associated offences have become daily occurrences in the context of Bangladesh. As stated in the constitution of Bangladesh, medical care is one of the basic needs of the citizens of the state, yet the medical system has long been in a state of severe disorder. 鈥楴egligence鈥� is a vital component of the law of tort. To establish medical negligence, the petitioner must effectively demonstrate four significant elements: (a) duty of care, (b) breach of duty, (c) causation, and (d) damage.
In Bangladesh, the right to health and medical care is guaranteed in the constitution as a fundamental need of every citizen. Although the right to receive proper health and medical care is not directly recognised as a fundamental right, it may be interpreted as part of the right to life, which is protected as a fundamental right under Article 32. The preamble to our constitution states that it shall be a fundamental aim of the state to realise, through democratic means, a just society.
Furthermore, the right to health is also recognised as a fundamental principle of state policy under Article 15. It states that it shall be a primary duty of the state to achieve, through planned economic development, a steady increase in productive capacity and continual improvement in the material and social conditions of life, for the benefit of its citizens.
Complaints related to medical negligence may be filed under tort or civil law, including claims involving harassment, defamation and false inducement. However, in our country, civil litigation is quite complex and costly, which makes it difficult for poor individuals to access justice. There are also complications in gathering evidence. In such cases, the doctor or the relevant person must act as a witness. As a result, uncovering the truth becomes nearly impossible, and remedies remain out of reach.
Doctors often recommend numerous tests at the first consultation. If the prescribed tests are conducted, most results usually return as normal. It is a common belief that doctors suggest unnecessary tests.
Naturally, the question arises: why do they advise patients to undergo additional tests? The answer is straightforward 鈥� when a patient visits a diagnostic centre with a doctor鈥檚 referral, they are charged twice the standard test fee, and the doctor鈥檚 name and address are recorded.
Later, 40鈥�50 per cent of the collected fees are discreetly paid to the doctor, who accepts the money without hesitation. Is this not deception or negligence towards patients?
The Bangladesh Penal Code, 1860 clearly states that if a person causes the death of another through negligence or wilful recklessness, that person shall be deemed to have committed an offence under Section 304(a). If a patient dies due to a doctor鈥檚 negligence, the doctor shall be held liable under Section 304. In the case of Rashidullah vs State (21 DLR 609), it was held that reckless conduct implies taking the risk of engaging in dangerous activity without proper caution.
In addition, abortion-related offences (Section 314), as well as other medical negligence-related offences (Sections 323 to 328), are addressed by the Penal Code. Under Section 337, if death or safety is compromised due to reckless behaviour or negligence, the punishment may include a maximum of three months鈥� imprisonment and a fine of up to Tk 250. Section 338 also prescribes imprisonment of up to six months and a fine of Tk 500 for injuries caused by negligence.
Despite this, several obstacles and challenges hinder justice in medical negligence cases in Bangladesh. These include:
Lack of government resources to monitor instances of medical negligence in both private and public hospitals.
Only a limited number of non-governmental organisations deal with medical negligence issues.
Lack of expertise among appointed judges and lawyers to handle medical negligence prosecutions.
Although tort law exists in Bangladesh, it is not commonly practised.
Medical negligence incidents are not under continuous scrutiny; they only receive attention when highlighted by the media.
General public apathy contributes to the rising rate of medical negligence.
Ordinary citizens are often reluctant to file cases against hospitals and doctors, feeling they are at a disadvantage.
Only a few non-governmental organisations offer legal assistance for medical negligence cases.
Litigation procedures in Bangladesh are lengthy, and final judgements take a long time.
Although laws to address medical negligence exist, they are not effectively enforced.
The constitution, as the supreme law of the land, has strictly guaranteed the right to health for its citizens. The Supreme Court is also empowered to perform its constitutional duties and to provide remedies under constitutional law for claims of medical negligence. Even though there are several loopholes in existing domestic laws and legal systems, now is the time to reassess and become conscious of individual rights.
In Bangladesh, tort law offers a crucial avenue for pursuing compensation in cases of medical malpractice. Even though there are obstacles, victims seeking justice and compensation for their injuries must understand the legal system and the options available to them.
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Shahariar Islam Sovon is a legal researcher and human rights activist.
