Sunday, May 21, 2017

http://dailyasianage.com/news/62533/a-good-new-law-on-medical-services

A good new law on medical services

The doctor- patient relationship is one of the most unique and privileged relation based on mutual
trust and faith. It is believed that health care professionals should treat patients as their friends, and
not as consumers of services (Loewy, 1994).

This friendly relationship is declined or may not exist in Bangladesh which might be due to
communication gap between them, commercialization of health services. Unfortunately, there is no
tort law or any particular law on medical negligence except some scattered references on several
medical code, ethics, civil and criminal statutes and some constitutional articles about basic rights of
the citizens.
Negligence, as per the law of Torts, is a breach of legal duty to take care resulting in damage to the
person in contract for any service or otherwise. The famous author Austin defines negligence thus -
"In cases of negligence, the party performs not an act to which he is obliged; he breaks a positive
duty".

Medical negligence 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, with most cases involving medical error. It is a breach of duty by a
doctor to perform service provider's job as required by their duty. Inadequate skill, care, or speed
can be cause for medical negligence claims.

The term 'negligence' has been defined by a court 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".

There are few provisions in the existing laws to address grievances of patients. The Penal code,
1860 has provisions for imprisonment and fine for negligence and these provisions are equally
applicable to both the doctors and the patients (complainant). The doctor or a nurse can be punished
or fined for his/her negligence, a complainant shall not be liable for complaint is found to be frivolous
or vexatious. Such provisions are intended to check harassing complaints or actions initiated with
oblique motives to achieve unlawful gains or unearned incomes.

The medical service providers will be liable for causing death by negligence is a criminal offence
under sec. 304A and causing miscarriage without women's consent under sec. 313; death caused
by act done with intent to cause miscarriage if act done without woman's consent under sec.314; an
act done with intent to prevent child being born alive or to cause it to die after birth under sec.315,
and other relevant sections like Secs.316-318.

The has given protection for acts on good faith and due diligence for acts not intended to cause
death, done by consent in good faith for person's benefit under sec.88 can also be an essential
provision for medical wrong cases. This is one of the main criteria to evaluate the offence of tort i. e.
negligence. The penal code illustrated that A, a surgeon, knowing that a particular operation is likely
to cause the death of Z, who suffers under the painful complaint, but not intending to cause Z's
death, and intending, in good faith Z's benefit, performs that operation on Z, with Z's consent. A has
committed no offence.

Punishment for similar offence is also provided in the Consumer Rights Protection Act, 2009 for
failure to provide promised service i. e. if doctors or hospitals do not provide promised service in lieu
of payment, the offender will be punished with imprisonment for a term not exceeding one year or
with fine not exceeding 50,000 taka or both (Section 45).

In Bangladesh, The Medical and Dental Council Act 1980 (Section 3 of the Act 1980) empowered
the Council to remove any medical professional when any medical practitioner or dentist is found
guilty of misconduct in respect of his profession. The aggrieved person may go to court under "The
Code of Criminal Procedure, 1898" sections 133 - 135 for medical wrong.

There is a demand for a law on medical services. All medical professionals are bound to follow with
obligations the provisions of that comprehensive Act. This Act should impose legal obligations upon
medical practitioners, dentists, private clinics, private hospitals, pathological laboratories and also
government hospitals for their medical malpractice.
The Government has drafted a law under caption of "Rogi O shastho sebadankari bakti O
protishthan shurokkha ain - 2016 (The Patient and Medical Service Providering Person and
Establishment Protection Act). This is a kind of law for punishment for negligence and due protection
of all stakeholders. This is a very welcome initiative of the government.

The has provision for making offences of unruly actions of relatives of patients due to graveness for
undesirable medical services and also protection of medical practitioners from arrest until prove of
offences by law enforcers. The proposed law may be improved further with incorporating some
addition points. The law should have provision of creating an Independent Supervisory Authority and
empowering that to set up standard of infrastructure and manpower for medical service providers
and checking up the activities of medical and all records and documents to maintain the set
standards. The supervisory authority may have representatives from all stakeholders of this sector
including some expert on medical science and law.

The negligence may exist in non-feasance or misfeasance. The law may have provision of
differentiation of negligence and malpractice. The terms negligence and malpractice are frequently
used interchangeably. However, there is a difference in the two terms. Negligence is a general term
that denotes conduct lacking in due care, carelessness; and deviation from the standard of care that
a reasonable person would use in a particular set of circumstances.

On the other hand, malpractice is a more specific term that looks at a standard of care as well as the
professional status of the caregiver. To be liable for malpractice, the person committing the wrong
must be a professional. The courts define malpractice as the failure of a professional person to act in
accordance with the prevailing professional standards, or failure to foresee consequences that a
professional person, having the necessary skills and education, should foresee. Any of the acts of
identical offence may create the basis for negligence or malpractice. In order to prove negligence or
malpractice, the elements must be established: (a) Duty owed the patient, (b) Breach of duty owed
the patient, (c) Foreseeability, (d) Causation, (e) Injury; and (f) Damages. If performed by a non-
professional person the result is negligence. If performed by a professional person the acts could be
the basis for a malpractice.

There are different levels of responsibility or liability for malpractice for owner of hospital, Manager,
Doctors, nurses and even the word boys. An owner may be liable for the acts of its employees for
failing to do the following: (a) hire staff who has the qualifications and skills to perform the necessary
functions; (b) provide opportunities for the professional growth of the staff with proper training etc. (c)
provide adequate library services; (d) provide opportunities for exchange of ideas; provide adequate
and sufficient equipment and supplies and maintaining them; and (f) ensure that managers and
supervisors carry out their duties competently.

The manager or supervisor may be held liable for the acts of the Nurse, if there has not been
appropriate delegation of duties or adequate supervision. An individual is accountable for acts of
negligence personally committed. The responsibilities of all stakeholders like owner, Doctors, other
staffs and patients should be clearly defined to avoid ambiguity of responsibility and liability. A
standard of service and logistics to be enforce and regular supervision of implementation of the
standard by an independent authority will create a logical ground for punishment of offender.

The fear of court and police for service providers will not bring any positive atmosphere for desired
medical services. Now at days, globally Alternate dispute Resolution (ADR) is most affective
mechanism for redress the grievances of patient and ADR may be incorporated as mandatory
provision in order to resolve the complain so that patients can easily get the compensation etc and
other stakeholders get fare trials.
It is understood that government has changes mind and re-draft similar law but the reason of revised
not yet clarified to citizen.

The writer is a Legal Economist.