Medical Negligence is the failure of a physician or other medical personnel to meet the standards of conduct for duties relating to the medical profession

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Medical Negligence is the failure of a physician or other medical personnel to meet the standards of conduct for duties relating to the medical profession.

Preface

In the name of ALLAH, the beneficial, the merciful. This Research Monograph is submitted in partial fulfillment of the requirement for the degree of Bachelor of laws. The course teacher gave two options to for Research. chosen this topic for research due to my keep interest and strong curiosity regarding this topic. Student having no practical experience as to the matter but which earned from honorable teachers. So, do not have minimum quality to comment on anything about this matter.

Being writing this Research paper has taken help from many books, journals and internet. freely used these books from Noshirvan H. Jhabvala’s “The Law of Torts” 25th Edition, Markesan’s and Deakin’s “Tort Law” 5th edition, Dr. Durga Das Basu’s “The Law of Torts”’ 11th Edition, and Ain O Salish Kendra’s “Chikitshai Obohela”. Beside these also taken the help of some websites and journals. Grateful to the learned authors and to the editors of these books and websites and journals.

Would like to give special thanks to honorable supervisor sir Syed Sarfaraj Hamid, Assistant Prof. and Co-coordinator, Department of Law, Northern University Bangladesh for his motivation. Being aware of limitations timidly I broached this subject with all of my teachers. grateful to all of my learned course teachers to discuss the complicated issues with me and give valuable suggestions and advice. To what extent successful in that is left to everybody concerned.

Chapter One

Introductory Chapter

1.1: Introduction

Medical Negligence is the failure of a physician or other medical personnel to meet the standards of conduct for duties relating to the medical profession. Those standards are based on what a reasonable person with the requisite knowledge and skills would or would not do.

Medical negligence occurs when the treatment provided by a health service provider (such as a hospital, doctor, dentist, pharmacist etc.) falls bellow an acceptable standard. Medicine is a complicated practice and health service providers are not expected to be perfect. Medical treatment in sometimes become unsuccessful and injuries can sometimes result. But that does not necessarily mean that there has been any negligence. Negligent treatment is that which goes beyond being a simple reasonable mistake or error.

The first element in any medical negligence lawsuit is that of a duty owed to the patient. If there is no legal duty to act, a medical professional can stand by doing nothing while a person suffers, and still not be a negligent. Thus the first question to address in a medical negligence lawsuit is whether the medical professional owed any duty to the plaintiff or not. Often this question is easily answered. When a patient go to a doctor with a problem and the doctor agrees to treat the patient, the doctor has assumed a duty to treat the patient. The doctor has indicated that he or she has the appropriate training and skill to adequately care for the patient and has assumed a duty towards the patient.

To take reasonable care, the health professionals are also under a common duty to take reasonable care for the safety and well being of the patient. Breaches of that duty may give rise to claim damages. A court will often need evidence from medical specialists about correct procedures and usual safeguards followed in particular medical treatments before a decision can be made about whether or not a particular health professional has been so careless in providing that to a patient as to be considered negligent. The importance of negligence prevention through reducing risks, preventing harm and promoting best practice, rather than remedial cure through damages. Where remedial action is required a better coordinate response and the development of a more predictable and affordable system of redress was proposed, encapsulated by the suggested establishment.

1.2: Aims and Objectives of the Research

Think every study must have some aims and objectives. So to prepare this Research paper we have some aims and objectives. After completing the research Paper correctly we shall able to find out the doctors negligence on medical treatment and also be able to take a legal action against the doctor’s medical malpractice. We shall also be able to find out the doctors rights and duties towards the patients and the rights and duties of the patients to their surgeons and when a doctor fails to provide proper care to his patient then what will be its consequences and what remedies are available for a victim of medical negligence. In a nutshell we shall able to know details about medical negligence.

1.3: Nature and Scope of the Research

Every Research paper has nature and scope. So my Research paper is not beyond the nature and scope. As selected topic for Research is “Medical Negligence: Law and practice in Bangladesh”, so it is related with analytical, historical, scientific, historical and systematical methods. The assigned topic is an important and a demandable topic for law students. Especially for those who wants to spend theirs life in human rights sector.

1.4: Research Methodology

This assigned topic is very important one in our legal sector. This thesis has been done and published with more reference from books, journals, and internet and from some articles. This thesis paper is tort and human rights related subject matter. When started this research paper always looked for strong references and correct information. Tried to enrich this Research paper by providing all necessary information. The scheme has also been improved and has been made much more methodical, analytical, historical, scientific

To prepare the term paper used some methods and these are collected some books which are related with Research topic, have also collected some news from the daily news papers of Bangladesh, have also browse some websites from which got some important data which are related with my Research topic. As my topic is related with medical negligence, so for the purpose of collecting data had to go some hospitals. Visited at Bangabandhu Sheikh Mujib Medical University hospital, Lab Aid Hospital (Dhanmondi), BIRDEM Hospital (Shahbagh), City Hospital (Muhammadpur). As my Research topic is a Human Rights perspective topic so I had to go to in N.G.O. institution. So have visited at Ain O Salish Kendra (Lalmatia) from where maximum information of my Research topic. There talked to some officials who also provide me some information about my topic.

and systematical.

1.5: Limitation of the Research

Every research study has some limitations. So this research monograph is not the exception of this limitation and reduced the scope of the study. The main limitation to prepare this thesis is time limitation. To make a fulfill thesis the time period is not sufficient. Another problem is that every body talks, write articles on “Medical Negligence” but there is no book from where we can informed about “Medical Negligence”. Therefore, it is difficult to collect materials in Bangladesh perspective. Though I have taken the help a Bengali book but as it is written in Bengali, so to face some trouble to make it in English. By going to make a research on “Medical Negligence: Law and Practices in Bangladesh” I have to face some medical term which are totally unknown to me. Beside these, there are also some negligible problems to make this thesis fruitfully.

Chapter Two

Fundamental Concepts of Medical Negligence

2.1: Definition of Negligence

Negligence may be defined as the breach of a duty, caused by the omission to do something which a reasonable man (guided by those considerations which ordinarily regulate the conduct of human affairs) would do – or doing something which a prudent and reasonable man would not do. In other words, negligence may arise from non-feasance or from misfeasance.

1. Austin defines negligence thus – “In case of negligence, a party performs not an act to which he is obliged; he breaks a positive duty.[1]

2. Actionable negligence consists in the neglect of the use of the ordinary care or skill towards a person to whom the defendant owes the duty of observing ordinary care and skill, by which neglect the plaintiff has suffered injury to his person or property.[2]

3. Salmond considered ‘negligence’ as state of mind which was an element for liability for torts, in general, as an alternative to ‘intention’. It is, however, established that negligence is a specific tort1 if the following conditions are present, which must be established by the plaintiff-

(i) That the defendant was under a duty to take care towards the plaintiff to avoid the damage complained of;

(ii) That there was a breach of that duty on the part of the defendant; and

(iii) That the plaintiff has suffered actual damage and that the breach was the direct and proximate cause of the damage complained of.[3]

Thus, if a man walks across a crowd of people, carrying sharp edged tools in his hand, he is under a duty to ensure that he does no injury to those around him. Will have to be more careful than a man who merely carries an umbrella (even though this is nearly as bad in crowded cities today). – And, of man with the umbrella would have to be more careful than a man who carries nothing at all.

2.2: Essentials of a Suit for Negligence

The burden of proving negligence is on the part of the plaintiff who alleges it. In order to succeed in an action for negligence, the plaintiff must prove the following five things:

1. That the defendant was under a legal duty to exercise due care and skill, – as there cannot be any liability for negligence unless there is a breach of some legal duty.

2. That the duty was towards the plaintiff.

3. That, in the circumstances of the case, the defendant failed to perform that duty, i.e. the duty to exercise due care and skill.

4. That the breach of such duty was the causa causans, i.e. the direct and proximate cause, of the damage complained of. If the causal connection between the negligent act and the damage is not direct, the damage is too remote, for which there is no remedy at law.

5. That the damage was caused on account of this breach of duty. The Bombay High Court has laid down that in an action for negligence against a doctor, the plaintiff has to prove three things, viz.-

(i) That the doctor was under a duty to take reasonable care towards the plaintiff, to avoid the damage complained of, or not to cause damage to the patient by failure to use reasonable care;

(ii) That there was a breach of such duty on the part of the doctor; and

(iii) That such breach of duty was the real cause of the damage complained of, and such damage was reasonably foreseeable.[4]

2.3: Definition of Medical Negligence

Medical negligence is a species of professional negligence and, as such, forms part of the law of tort. Medical negligence, or clinical negligence as it is more commonly known today, is concerned with claims for damages for injuries suffered by patients (and others) at the hands of doctors and other health care professionals. Unlike in other professional contexts, the law of contract plays little or no part in medical law. Other than in situations where the seeks treatment privately, patients do not enter into contracts with their doctors.[5] or,

Medical malpractice is professional negligence by act or omission by a health care provider in which care provided deviates from accepted standards of practice in the medical community and causes injury or death to the patient.[6] Or,

Failure of a physician or other medical personnel to meet the standards of conduct for duties relating to the medical profession. Those standards are based on what a reasonable person with the requisite knowledge and skills would or would not do.[7]

2.4: Essentials of a Suit for Medical Negligence

A person who alleges negligent medical malpractice must prove four elements:

(1) A duty of care was owed by the physician;

(2) The physician violated the applicable standard of care;

(3) The person suffered a compensable injury; and

(4) The injury was caused in fact and proximately caused by the substandard conduct.

The burden of proving these elements is on the plaintiff in a malpractice lawsuit.

2.5: Defences to an action for negligence

The following three defences can be raised in an action for negligence, viz

(A) Vis major,

(B) Inevitable accident, and

(C) Contributory negligence of the plaintiff.

2.5.1: Vis Major

Vis Major (or act of God) is such a direct, violent, sudden, and irresistible act of nature as could not, by any amount of human foresight, have been foreseen, or, if foreseen, could not, by any amount of human care and skill, have been resisted. Thus, acts which are occasioned by the elementary forces of nature, unconnected with the agency of man or other cause, will come under the category of acts of God. E.g. storm, tempest, lightning, extraordinary fall of rain, extraordinary high tide, extraordinary severe frost. Etc.[8]

The defendant had a series of artificial lakes on his land, in the construction or maintenance of which there had been no negligence. Owing to a most unusual fail of rain, so great that it could not have been reasonably anticipated some of the reservoirs burst and carried away four country barges. It was held that the defendant was not liable inasmuch as the water escaped by an act of God.[9]

2.5.2: Inevitable accident

The second defense in an action for negligence is that of inevitable accident. Thus, A is lying drunk on a roadway. B approaches in a motor car round a bend in the road, but just before he reaches the point at which, under ordinary circumstances, he would first see a, sheet of newspaper is blown by the wind against his windscreen and materially obscures his view. He runs over A, and injures him. Here, A cannot succeed, it being a case of inevitable accident or misfortune.[10]

X was on a golf course as a spectator, and Y, who was not striking the ball in a game of golf, but was merely demonstrating a stroke to S’s brother, negligently struck X in the face with the golf club. In a suit by X against Y for damages, Y contended that by going to the golf course, X took the risk of such an accident. It was held that X was entitled to damages. This is not a case of sport or a game, but a regular business.[11]

2.5.3: Contributory negligence of the plaintiff

The third defence to an action for negligence is that of the contributory negligence of the plaintiff himself.

Contributory negligence has been defined as “negligence in not avoiding the consequence arising from the negligence of some other person, when means and opportunity are afforded to do so”. The term negligence in this context does not, ordinarily, mean any breach of duty to another, but only failure to take reasonable care of one’s own self. Every man has a duty to look after himself, and he will have no remedy for injuries which he might have a voided by the use of reasonable care. As stated in an old case, “One person being in fault will not dispense with another’s using ordinary care of himself”[12]

Chapter Three

Principles of Negligence and Burden of Proof of it

3.1: Contributory Negligence

Contributory negligence has been defined as “negligence in not avoiding the consequence arising from the negligence of some other person, when means and opportunity are afforded to do so”. The term negligence in this context does not, ordinarily, mean any breach of duty to another, but only failure to take reasonable care of one’s own self. Every man has a duty to look after himself, and he will have no remedy for injuries which he might have a voided by the use of reasonable care. As stated in an old case, “One person being in fault will not dispense with another’s using ordinary care of himself”[13]

More recently, Lord Denning has distinguished ‘negligence’ and ‘contributory negligence’ as follows:

“Negligence depends on a breach of duty, whereas contributory negligence does not, Negligence is a man’s carelessness in breach of duty to others. Contributory negligence is a man’s carelessness in looking after his own —safety”.[14]

1. The principle underlying the doctrine has been stated to application of the maxim In pari delicto potior est condition defendantis”, which means that when both parties are equally to blame, neither can hold the other liable.

But the more accepted view is that it is an application of the rule as to remoteness of damage.

2. At common law, contributory negligence of the plaintiff is a complete defence to an action for damages for negligence of the defendant, the burden of establishing it being on the defendant.

3. Contributory negligence is, however, no defence where the plaintiff was not bound to take such care as the defendant contends but has a right to assume that the defendant had done all things rightly and carefully.

4. Again, contributory negligence of the plaintiff is no defence if the defendant had a later opportunity than the plaintiff of avoiding the accident by reasonable care.

5. The soundness of the last opportunity test founded on Davles. Mann has, however, been questioned by the House of Lords in Admiralty Commissioner v. North of Scotland .Their Lordships quoted with approval the statement of the Law Revision Committee, 1939.

“In truth, there is no such rule – the question, as in all questions of liability for a tortuous act, is, not, who had the last opportunity of avoiding the mischief, but whose act caused the wrong”.[15]

6. Another controversial topic relating to contributory negligence is whether the existence of a duty is necessary to raise the plea. The position has been authoritatively summarized by the Privy Council thus.[16]

(i) When negligence is alleged, as the basis of an actionable wrong, a necessary ingredient in the conception is the existence of a duty owed by the defendant to the plaintiff to take due care. But when contributory negligence is set up as a defence, its existence does not, generally depend on any duty owed by the injured party to the party sued and all that is necessary to be shown in order to establish such defence is that the inured party did not in his own interest take reasonable care of himself and contributed, by his want of care, to his own injury. The principle underlying the defence of contributory negligence is that where a man is part author of his own injury, he cannot call on the other party to compensate him in full.

(ii) In cases relating to ‘running down accidents’, however, the question of duty to take care in relation to the other party does, in fact, come in. The general principle in such cases is: “When two parties are so moving in relation to one another as to involve risk of collision, each owes a duty to the other to move with due care, and this is true whether they are both in control of vehicles, or both proceeding on foot, or whether one is on foot and the other controlling a moving vehicle.

7. In England, the doctrine of contributory negligence has undergone a great shock by the passing of the Law Reform (Contributory Negligence) Act, 1945, which has introduced the principle of apportionment of liability in all cases of contributory negligence, which was before this Act confined to Admiralty proceedings only- After the passing of this Act, the common law rule which applied before, viz, that parties guilty of negligence had no claim has disappeared, and the Court has to assess the liability of both parties, and apportion the damages accordingly.[17]

3.2: Contributory Negligence of Children

The defence of contributory negligence is more difficult to make out against a child than against an adult. When the plaintiff is a child, he will not be disentitled to relief merely because he has failed to show as much care as a person of, mature age. Allowance must be made for his inexperience and infirmity of judgment[18]. This rule is sometimes expressed in the form ‘contributory negligence of a is no defence. This rule however is not to be literally accepted, but only as meaning that what amounts to contributory negligence in a grown-up person may not be so in a child of tender years.[19] Hence the age and mental development of the child becomes relevant.

3.3: Burden of proof of Contributory Negligence

The onus of proving affirmatively that there was contributory negligence on the part of the person inured rests, in the first instance, upon the defendant, and in absence of evidence tending to that conclusion, the plaintiff is not bound to prove its non existence. If the Court finds itself unable to discover to what extent the negligence of the plaintiff or that of the defendant contributed to bring about the accident, the defendant is entitled to succeed, for in pari delicto potiorest conditio defendants.[20]

A few decided cases on the doctrine of contributory negligence are given below. A police constable seeing the door of the defendant’s warehouse open after dark, and in order to see that everything was right, and in the execution of his duty, entered the warehouse and injured himself by falling into an unfenced sawpit inside.[21]

It was held that he had no legal right to enter, being neither a licensee nor an invitee, but that even assuming he had, the defendant was under no duty to make the place safe for him or to warn him of the danger.[22]

3.4: Doctrine of Identification

The doctrine of identification can be explained thus: Where a child is in the actual custody of an adult at the time of the accident, the contributory negligence of the adult will disentitle the child from recovering damages, because the child is so identified with the adult that his negligence would amount to the negligence of the child. So, a special application of thedoctrine of identification is to be met with where an infant, who is incapable of taking care of him and is in charge of an adult, suffers injury owing to the negligence of the third person, as well as the contributory negligence of the custodian.[23]

At one time, it was though that the contributory negligence of an adult having actual custody of a child at the time of the accident would be a bar to an action by the child against the other party whose, negligence helped to bring about the accident. A child of five under the control of its grand mother was inured by a train owing to the contributory negligence of the grandmother. It was held that the child had to be identified with its grandmother, and so had no right of action against the company.[24]

But the doctrine of identification laid down in this case has been overruled since the decision in Mills v. Armstrong.

An infant, of four years old, was crossing a road under the care of his grand father. He was struck by a motor omnibus and received permanent injuries to his left hand. The infant sued the Omnibus Company for damages sustained by him through the negligent driving of the omnibus belonging to the company for damages sustained by him through the negligent driving of the omnibus belonging to the company. The jury found that the accident occurred through the negligence of the driver of the omnibus and the contributory negligence of the grand father. It was held that, nevertheless, the infant could recover damages.[25]

3.5: Res Ipsa Loquitur

The rule that in action of negligence, the plaintiff must affirmatively prove negligence may cause hardship in cases where the plaintiff can prove the accident, but cannot show how it happened, the fact being solely outside his knowledge and within the knowledge of the defendant who causes it. In such cases, it is sufficient for the plaintiff to prove the accident and nothing more – for there is a presumption of negligence according to the maxim. “Res ipsa loquitur (the thing speaks for itself). Such a presumption, arises when the cause of the mischief was apparently under the control of the defendant or his servants. The accident itself constitutes reasonable avoidance of negligence in the particular circumstances.

The application of the maxim “Res ipsa loquitur” has been explained thus: “Where the thing is shown to be under the management of the defendant or his servants, and the accident in such as, in the ordinary course of things, does not happen, if those who have the management use proper care, it affords reasonable evidence. In the absence of explanation by the dependant that the accident arose from want of care.[26]

Thus, the following are the three essential requirements of the application of the maxim:

(i) The accident must be such as would not, in the ordinary course of things, have happened without negligence.

(ii) The accident must be such as would not, in the ordinary course of things, have happened without negligence.

(iii) There must be no evidence of the actual cause of the accident.[27]

3.6: Burden of proof of Negligence

As a rule, the onus of proving negligence is on the plaintiff. He must not merely establish the facts of the defendant’s negligence and of his own damage, but must show that the one was the effect of the other

First, where there is no contract, the plaintiff must prove facts inconsistent with due diligence on the defendant’s part. Where the balance is even as to which party is in fault, the one who relies on the negligence of the other is bound to turn the scale.

Secondly, where there is a contract or personal undertaking, the plaintiff must prove such contract or undertaking, and also injury to himself. The mere fact of an injury happening, if unexplained, is evidence of negligence. It is for the defendant to prove that he himself was exercising due care.

-Thirdly, under certain circumstances, the mere happening of an accident will afford prima facie evidence that it was the result of not taking due care; res ipsa loquitur (the thing speaks for itself). This is so when –

(i) The injurious agency was under the management or control of the defendant; and

(ii) The accident is such as, in the ordinary course of things, does not happen if those who have the management use proper care.

Thus, in cases involving res ipsa loquitur, there is a presumption of negligence, and it is for the defendant to rebut it.[28]

The Rajasthan High court has held that, in a case against a doctor for damages, if the plaintiff shows that the doctor was in fact negligent, but fails to prove that any loss or injury was caused to him by such negligence, he cannot be awarded any damages, and his claim will be dismissed.[29]

Chapter Four

Places of Medical Negligence and Consequence of Medical Negligence

Medical malpractice is professional negligence by act or omission by a health care provider in which care provided deviates from accepted standards of practice in the medical community and causes injury or death to the patient. Standards and regulations for medical malpractice vary by country and jurisdiction within countries. Medical negligence may take place in public hospitals, or in a private hospital or in a private clinic etc. a nut shell medical negligence may took place in any place of a country where there is an arrangement for medical treatment.

4.1: Medical Negligence in public Hospital

A public hospital or government hospital is a hospital which is owned by a government and receives government funding. This type of hospital provides medical care free of charge, the cost of which is covered by the funding the hospital receives. Most hospitals worldwide are public.

As most of the people of this country are poor and their economic condition is not good. So for taking treatment they depend on public hospital. But the condition of the public hospitals is not good. The doctors, nurse and the stuffs of the public hospital, all are involved in corruption. They do not do their duty properly. That means the doctors of the public hospitals are not found in their duties. The nurses are also not attentive in their duties. The stuffs are not also do their duty properly .The want money or Brive from the patients. Particularly the surgeons always neglect the patients. Some surgeon tells their patient to go his private chamber.

The doctors of the public hospital do not think the patients as human. They always neglect the patient. For example, Omar Faruk, 24, son of Abdul Zabbar of Bazuriya village under Bochaganj upazila of Dinajpur, died due to alleged negligence of doctors at Dinajpur Medical College and Hospital. Faruk was admitted to the hospital on Thursday evening as he took poison. Faruk relatives alleged he died at about 4:30pm yesterday due to the negligence of the doctors.[30]

This is not a single example of the doctor’s medical negligence in public Hospital. There are thousands of examples which shows the prove of medical negligence of the doctors in public hospital.

4.2: Medical Negligence in Private Hospital

A private hospital is a hospital owned by a for-profit company or a non-profit organization and privately funded through payment for medical services by patients themselves, by insurers, or by foreign embassies. The citizens of this country who have not confidence in public hospitals of this country and want a better service from a surgeon, they only go to a private hospital. But the conditions of the private hospitals are not good. The doctors, nurse and the stuffs of the public hospital, all are involved in corruption. They do not do their duty properly. That means the doctors of the private hospitals are not taking care of their patients properly. The nurses are also not attentive in their duties. The stuffs are not also do their duty properly .The want money or Bribe from the patients i.e. Baksheesh. That’s why the V.I.P and the people who has a lot of money for a better treatment they go to abroad.

In private hospitals, though the patients expend their pocket money but are not getting proper service from their surgeons. In this stage, a true fact will say about the medical negligence in Bangladesh.

On October 29, 2007, when Bangladeshi software engineer Masum P. Mohammad, flew back to Bangladesh to see his ill father struggling for life at the Central Care Unit (CCU) of Lab Aid Cardiac Hospital, he was in shock.[31]

Masum alleges that when he saw his father lying on a bed, full of blood. Then he asked the nurse to show him where he was operated, and he was speechless to see the unhygienic condition where his father was put in. He stood there for the longest moment, not knowing what to say.

Masum’s father Late A.K.M Fazlum Haq was admitted at Lab Aid on October 25 under the treatment of Dr Prof. Baren Chakraborty, after he was struck by a sudden chest pain.

After Haq had a massive heart attack on October 26, he was given injection and later a ring was put around his heart on October 27. Later that week, Haq’s chest x-ray revealed dark areas over the lung, after which Prof. Ali Hossain was involved for the lung treatment. ‘On November 2 that day, Hossain told to Masum that, food was stuck in the patient’s lung and he wants a Bronchoscope immediately.’[32]

After the Bronchoscope Prof. Hossain provided cough samples for the Tuberculosis (TB) test in two different diagnostic centers-one in Lab Aid, and another in Monowara Diagnostic, at Panthopath, Dhaka. Three days later the result was completely different in the two hospitals. Masum alleges that the Lab Aid results showed that his father has not have TB, and the Monowara Diagnostic test result showed that the report was actually positive!.[33]

Masum explains that later they also learnt that his father had suffered from massive brain injury right after being admitted to the hospital, which was not detected by any of the doctors. ‘When he had a heart attack earlier, blood was stuck in his brain. So, he was not being treated for his brain injury during all these days.[34]

Masum says that his father’s TB test was sent on November 3, 2007. He asked that why did it take so long to send the TB test for diagnostic, and why did it take so long to detect this TB? Masum also alleged that even the TB diagnosis result was wrong.

Masum also told when his father was given a medication; his father could not recognize them anymore. At that time they requested Prof. Chakraborty to call a neurologist to check his father’s brain, but again he did not bother to listen to him. Two days later, on November 11, his father was announced dead.[35]

‘Masum’s story is nothing exceptional,’[36] says Dr Quamruzzaman who heads the Dhaka Community Hospital in Malibagh and has himself been a victim of medical negligence through which he lost a perfectly-functioning kidney. ‘We have countless other cases of medical negligence and ignorance. But, it is important to realize that one of the biggest flaws of our health care system is that we have no accountability what so ever.’

Indeed, Masum’s case is not an isolated one. According to an investigation of a Dhaka-based NGO, Ain-o-Shalish Kendra, between January to October 2007 alone, there were over 76 death cases reported to be caused by medical negligence.[37]

4.3: Medical Negligence in Private Clinic, etc.

In Bangladesh, clinical negligence is a regular phenomenon. Every year hundreds of people die due to clinical negligence in Bangladesh. Most of them are child and woman. As, it takes much expense to treat in private clinic and as the public hospitals are not providing well services in our country. So for getting a better service the people of this country, by finding no other alternatives are bound to go to a nearest private clinic. But in spite of great expense the people of this country are becoming the victims of medical negligence. The surgeons, the nurses and the stuffs of the hospitals are mainly liable for clinical negligence.

In this stage, referring a true fact about medical negligence in private clinic of Bangladesh. This fact fact will say about the clinical medical negligence in Bangladesh.

A Pregnant housewife Nayan Begum from Chanpur village of Bhairab upazila was rushed to the Sadek Medical Hall in Bhairab town with severe pain in her stomach. On her arrival at the hospital, they were relieved to find that the owner of the clinic ‘Doctor Sadek’ was one of the attending doctors. Insisted that she deliver the baby immediately. ‘Without any proper investigation of what the cause of the pain might be,’ he told the victim that he will have to deliver the baby, dismissing our suggestions that perhaps he should do an ultrasound,’ says Nayan’s daughter Mili Begum, a third honors student at Dhaka’s Eden College.[38]

She was instantly taken to a dirty, dark room in the medical facility used for delivery purposes. The doctor insisted that none of her female relatives who accompanied her to the hospital be in the operating theatre with her. She was already very nervous. Mili says that when she was wheeled inside, she was asked to close her eyes and not given any anesthetics or pain killers to ease her delivery process. Mili also told that initially, doctor Sadek had tried to use his spiritual powers to deliver the baby. But when his spiritual powers were of no use and ma’s situation was getting worse, he made a forced delivery attempt on her. In trying to forcefully deliver the baby, he caused severe head injuries to the fetus using a sharp blade. My mother was screaming in pain as she was subject to blade swipes on her internal organs by an unskilled hand. My mother also started to bleed profusely.[39]

When Nayan’s family discovered her in such dire condition, they immediately rushed her to a hospital in Dhaka. On April 19, the baby died at a hospital in Dhaka. Luckily, Nayan had escaped with her life. Mili said that her mother was in a crazed state when she had recovered always asking about the baby. The baby was a boy and my mother kept on asking every one where her son was.[40]

In this stage, referring another true fact about medical negligence in private clinic of Bangladesh. This fact fact will say about the clinical medical negligence in Bangladesh.

Khokan is an inhabitant of Dinajpur, who admit his wife at Janata Clinic, Dinajpur on 14th October. His wife was a patient of fiver. He was informed from clinic that his wife is attacked by typhoid. She was under treatment at that hospital for 5 days. On 18th October she felled oxygen problem. But at that clinic, oxygen was not available. The duty nurses of the clinic make a communication with Dr. Saidur Rahman. Then Mr. Rahman instructs them to send her at the Dinajpur Medical College for removing her oxygen problem. At about 8.00 pm in the way of hospital.[41]

But according to the Schedule C of the Medical Practice and Private Clinics and Laboratories (Regulation) Ordinance, 1982 the following stuffs must be present in a private clinic

  1. one registered medical practitioner for every bed round the clock
  2. Two nurses for every 10 beds round the clock
  3. Two sweeper for every 10 beds round the clock

But in that clinic it was totally absent. This is also a violation of the Medical Practice and Private Clinics and Laboratories (Regulation) Ordinance, 1982. But the concerned authorities do not keep their attention regarding this matter.

Finally it can be said that the victims should be properly compensated for their suffering. When a person places themselves under medical care, they place their entire welfare in the hands of another. When things go wrong, the consequences can be serious. Medical Negligence can lead to physical, emotional and personal trauma, as well as loss of earnings.

4.4: Consequence of Medical Negligence

Medical malpractice is professional negligence by act or omission by a health care provider in which care provided deviates from accepted standards of practice in the medical community and causes injury or death to the patient. Standards and regulations for medical malpractice vary by country and jurisdiction within countries.

The consequences of medical malpractice can be deadly. When the physicians fail to do their jobs correctly, this may causes a harmful result for the patient and for his family. The consequence of medical negligence may verities, such as the patient may become injured, or he may die or infirm or he may lose any one organ of his body or he may face pecuniary loss or damages etc. Most often the consequence of medical negligence becomes very deadly. In a statistic by Dhaka based N.G.O. named Ain O Salish Kendra, made a list of 504 persons of the victims of medical negligence from year1998 to 2008 on the basis of the news of the daily news papers. Where it is shown that about 465 persons dies as a result of medical negligence.[42] About 30 persons become in crippled for medical negligence[43] and rest of the persons lost their kidneys, eyes or any one of the organs of their body.

Chapter Five

Who are liable for Medical Negligence and who are victims of it

5.1: The persons who are liable for Medical Negligence

Medical malpractice is professional negligence by act or omission by a health care provider in which care provided deviates from accepted standards of practice in the medical community and causes injury or death to the patient. Standards and regulations for medical malpractice vary by country and jurisdiction within countries. All the persons who are involved in treatment matters are liable for medical negligence. Particularly the doctors, nurses, stuffs of the hospitals, hospital management or authority etc. are liable for medical negligence. In short, those persons who do not care a patient in times of his disease are liable for medical negligence. In this chapter I’ve tried to make a list of the persons who are liable for medical negligence and are the victims of medical negligence.

5.1.1: Doctor

Mainly the doctors or surgeons are liable for medical negligence. They do not do their duty properly. Every year hundreds of people become the victim of medical negligence by the surgeons. In a statistic by Dhaka based N.G.O. named Ain O Salish Kendra, made a list of 504 persons of the victims of medical negligence from year1998 to 2008 on the basis of the news of the daily news papers. Where it is shown that about 492 persons dies as a result of medical negligence of the surgeons.[44] Doctor’s medical negligence may take place in any public or private hospitals of Bangladesh even in the house of the patient or in the chamber of a doctor. Most often, medical negligence take place in public hospitals of Bangladesh.

5.1.2: Nurse

Not only the doctors of our country are liable for medical negligence but also the stuffs of the hospitals of our country are also equally liable for medical negligence. Most of the time the nurses remain in the hospitals to do their duty. They act in place of the doctors. They are engaged to take care of a patient. They have to give medicine to a patient regularly. But most of the nurse does not do their duty properly. When a patient needs a nurse in the time of taking medicine, they are not found. Without money they are not interested to serve the patients properly. They want extra money from the patients.

In a statistic by Dhaka based N.G.O. named Ain O Salish Kendra, made a list of 504 persons of the victims of medical negligence from year1998 to 2008 on the basis of the news of the daily news papers. Where it is shown that about 8 persons dies as a result of medical negligence of the surgeons.[45]

5.1.3: Stuffs of Hospitals, etc.

Not only the doctors and the nurses of our country are liable for medical negligence but also the stuffs of the hospitals of our country are also equally liable for medical negligence. The maximum stuffs of the country are corrupted. They do not do their duties properly. Their manner of speaking to the patients is not also good. Most of the stuffs want extra money from the patients. Without money they are not interested to serve the patients properly. In a statistic by Dhaka based N.G.O. named Ain O Salish Kendra, made a list of 504 persons of the victims of medical negligence from year1998 to 2008 on the basis of the news of the daily news papers. Where it is shown that about 4 persons dies as a result of medical negligence of the medical stuffs.[46]

Tajnin Sultana who is a baby of one and half years old. Her parents admitted her at that hospital for a surgery in her mouth as she is a patient of talukata. On 07/11/2010[47] her parents admitted her at that hospital for the purpose of operation. They have come from Brahman Baria. During time of admission, as whole environment of the hospital was unknown to her, the baby started crying. At that time the stuffs of the hospital made a rough conduct with her even with her parents. They also threatened the innocent baby. It is also mentionable here that the hospital treat the babies without any cost who are the patients of talukata. But the baby’s parents paid 60,000 tk. for her operation. In spite of paying tk. they did not get redeem from their rough conduct. This is a glorious example of the negligent of the Hospitals stuffs.[48]

5.2: Victims of Medical Negligence

One who is harmed or killed by a doctor or a surgeon or by a nurse or by a stuff of the hospital or by the management of the hospital is called a victim of a medical negligence. That’s means whoever become an injured person by aforesaid persons shall be treated as a victim of medical negligence. The victims of the medical negligence may be a woman, the children, the students, the politicians, the lawyers, the businessman, the teachers, the journalists, the actors, the actress and the painters etc. In short, those who take medical treatment from hospital or from any other places may be the victim of medical negligence. But in most cases, women and the children becomes the victim of medical negligence.

5.2.1: Women

For the reason of socioeconomic condition of Bangladesh the Women of this country are treated weak and dependant to others. That’s why they are becoming oppressed in every sectors of the country. In 2008, there were 518 cases of violence against women in Bangladesh, according to a report released by Ain O Salish Kendra, a human rights organization. Of the victims, 172 women were killed over dowry disputes and 246 through domestic violence, while 83 were killed after being raped. The list includes 17 female domestic helpers. Furthermore, 367 more women were raped and eight of them committed suicide during the one-year period. Two domestic helpers also committed suicide. Also, 20 women fell victim to punishment according to Fatwa, or religious edicts by religious village leaders.[49] Medical sector is not exception to this. Large number women are becoming the victim of medical negligence. In a statistic by Dhaka based N.G.O. named Ain O Salish Kendra, made a list of 504 persons of the victims of medical negligence from year1998 to 2008 on the basis of the news of the daily news papers. Where it is shown that about 165 woman dies as a result of medical negligence of the surgeons of Bangladesh. Maximum medical negligence occurred with the women in times of delivery. A glorious example of medical negligence is given here where the victim is a woman.[50]

5.2.2: Children

The children are considered as the future of a country. But in our country becoming the oppressed by the major persons. In Bangladesh a large number of children are deprived of their basic human rights due to unacceptable health, nutrition and education as well as social conditions. In addition, children are exposed to severe forms of physical and mental violence at home, in the work place, in institutions and other public places. The

Nature and extent of violence against children irrespective of age, sex and class has been increasing day by day. On the whole, our children are not safe despite efforts made by government and non-government organizations in ensuring the rights of the children. Broadly, violence against children can be defined to include physical, emotional or psychological violence or threat of violence against children perpetuated by individuals, as well as by institutions or society at large. Depriving children of basic necessities of life, health care and education, so much widespread in a developing country like Bangladesh, are encompassed by this holistic definition.[51]

Though there is a debate regarding the age of a child. But generally the persons who are between the ages of 16 are treated as child. As the children of this country are totally dependent on their parents and also on other persons of the society. That’s why the children of this country are becoming the victim in every sphere of the society. In a statistic by Dhaka based N.G.O. named Ain O Salish Kendra, made a list of 504 persons of the victims of medical negligence from year1998 to 2008 on the basis of the news of the daily news papers. Where it is shown that about 146 children dies as a result of medical negligence of the surgeons.[52]

5.2.3: Students

The students are considered as the future of a country. In our country all the achievements are acquired by the leading of the students. But the students of our country are not beyond the oppressed. They are becoming the victim in every sphere of the society. In a statistic by Dhaka based N.G.O. named Ain O Salish Kendra, made a list of 504 persons of the victims of medical negligence from year1998 to 2008 on the basis of the news of the daily news papers. Where it is shown that about 100 students dies as a

Result of medical negligence of the surgeons.[53] A glorious example of the medical negligence to a student is Rubel’s case. Where he died for the negligence of the doctors.[54]

5.2.4: Politicians, etc.

The politicians play a vital role in a country. They are the social reformist in a society. But they are also not the beyond the medical negligence. Every year a numerable politician for the fear of medical negligence is going to abroad for taking treatment. As they do not believe the surgeons of our country. In a statistic by Dhaka based N.G.O. named Ain O Salish Kendra, made a list of 504 persons of the victims of medical negligence from year1998 to 2008 on the basis of the news of the daily news papers. Where it is shown that about 10 politicians dies as a result of medical negligence of the surgeons.[55] A film star named Manna died for the medical negligence on 17th February in 2008 at United Hospital Dhaka on Sunday afternoon.[56] He was also a member of Zia Shangskritic Sanghatan.

Chapter Six

Rights and Liabilities of Doctors and Patients

6.1: Rights of the Patients

A patient’s rights occur at many different levels, and in all specialties. When a patient go to a doctor or a hospital there arise some rights of the patient. In 2003 a lift let is published by the Ministry of Health and Family Welfare. In that lift let the following rights were include as the right of the patient.

1. The right to receive information from physicians about the services[57]

2. The right to safe and continuity of health care[58]

3. The right to confidentiality

4. Right to get respect and dignity

5. Right to share idea

6. Right to get redress

7. Right to inform the highest authority when the rights are violated.

8. Right to choice treatment and the method of family planning

9. Right to get all documents relating to treatment

10. Right to receive all information about the treatment.

Generally all states have recognized these rights as the right of the patient. For example, The American Medical Association (AMA) outlines fundamental elements of the doctor-patient relationship in their Code of Medical Ethics. These rights include the following:

1. The right to receive information from physicians and to discuss the benefits, risks, and costs of appropriate treatment alternatives

2. The right to make decisions regarding the health care that is recommended by the physician

3. The right to courtesy, respect, dignity, responsiveness, and timely attention to health needs

4. The right to confidentiality

5. The right to continuity of health care

6. The basic right to have adequate health care.

Patient’s Bill of Rights

The Consumer Bill of Rights and Responsibilities was adopted by the US Advisory Commission on Consumer Protection and Quality in the Health Care Industry in 1998. It is also known as the Patient’s Bill of Rights. The summary of The Patient’s Bill of Rights is given bellow:

The Patient’s Bill of Rights was created to try to reach 3 major goals:

1. To help patients feel more confident in the US health care system; the Bill of Rights:

  • Assures that the health care system is fair and it works to meet patients’ needs
  • Gives patients a way to address any problems they may have
  • Encourages patients to take an active role in staying or getting healthy

2. To stress the importance of a strong relationship between patients and their health care providers

3. To stress the key role patients play in staying healthy by laying out rights and responsibilities for all patients and health care providers

This Bill of Rights also applies to the insurance plans offered to federal employees. Many other health insurance plans and facilities have also adopted these values. Even Medicare and Medicaid stand by many of them.

So, finally we can say that though there exist different name regarding the rights of the patient but these are part and parcel of each other and are same.

6.2: Duties of the Patients

Duty to participate in a “healthcare jurisdiction”

The patient should ensure that he is a recognized member of an institutional or social form of healthcare provision (what will for the purposes of this paper call a “healthcare jurisdiction”). For instance, he should not live intentionally outside society’s margins and then expect to be brought within the jurisdiction simply to get free healthcare. This is a conditional imperative only, of course: one has no absolute obligation to join the club, but membership of the club is a necessary condition of access to its benefits. Doubtless, in some jurisdictions it is not always easy to get into the club; this proposed duty applies only where “entrance” is a realistic possibility and where a meaningful minimal threshold of public healthcare provision is available.

Duty to uphold his own health

The patient should preserve and promote his own health and well-being so far as is reasonably opens to him to do so. For instance, he should follow a responsible lifestyle that does not put his health avoidably at significant risk; he should follow health promotion guidelines; he should take account of the risk factors affecting him, including what he can reasonably know of his own family history.

Duty to protect the health of others

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