Medical service/treatment to people means and includes access to appropriate medicare when need at the cost undertakable by the stakeholders and the service/treatment provided comprehensively by the doctors, nurses, staffs, diagnostic centers and all other medical hospitals/clinics authorities, etc (briefly referred to as “health care providers/duty bearers”).
This includes a range of medical assistance and claim support services from the duty bearers, coordination of benefits in a timely, effective, easier way without moving round and round from place to place and which the stakeholders/beneficiaries can claim as right holders and breach of which suffered or injured person can be redressed with appropriate remedies and also by taking legal action against the violators or wrongdoers.
Medical service also includes the liability and responsibility of the medical hospitals and primary health care providers including specially doctors, nurses, and other staffs of medical hospitals/clinics as bound to provide under the medical treatment agreement in accordance with the professional standards.
This medical treatment agreement may be of two kinds. One is the express i.e. formal agreement voluntarily executed between the patient (and/or their family) and the primary health care providers (and/or doctors, private medical hospitals etc) before undergoing into medical treatment.
This agreement expressly set out the rights, liabilities and responsibilities for both parties to the Agreement.
Noteworthy matter is that, this Agreement mostly concerned about for securing the rights of the patients against the negligent, reluctant, unexpected, unusual, willful default of the health care providers. Where there is no such formal agreement, even an informal agreement arising out of the implied consent of both the aforesaid parties can be inferred wherefrom as an implied medical treatment agreement.
There are few laws in our country which can be sought for taking action against the health care providers who failed to facilitate duty-bound, good medical service/treatment in accordance with the professional standard, accountability; and therefore becomes the wrongdoers/violators/offenders (briefly referred to as “health care violators”).
It is worth to mention that there is no specific law determining or defining the possible acts/actions/omissions as offences or crimes which can be committed by the duty bearers i.e. medical treatment providers.
It is also worth to mention that there is no comprehensive professional code of conduct for the medical treatment providers setting out the standard of health care to be facilitated to the stakeholders breach of which action can be taken against the violators. In developed countries offences or crimes committed in the medical service by the duty bearers mostly hold with tortuous or criminal liability.
In strict sense there is no practice of law of torts in Bangladesh and there is no law enforcing tortuous liability against the wrongdoers.
Slight averment can be found in the Fatal Accidents Act, 1865, but this Act is so narrow in scope that it is barely seen to be enforced or used by the lawyers, advocates, courts and also by the right holders.
Some provisions of the Penal Code, 1860, and the Contract Act, 1972 can be taken into consideration for taking action against the health care violators in a very limited way.
For ready reference relevant provisions of relevant laws are discussed below with critical analyses of those-
(i) The Fatal Accidents Act, 1855This is an Act to provide compensation to families for loss occasioned by the death of a person caused by actionable wrong.
Enacting and giving effect of this Act since 11th April, 1856 the Preamble of this Act provides that “whereas no action or suit is now maintainable in any Court against a person who, by his wrongful act, neglect or default, may have caused the death of another person, and it is often-times right and expedient that the wrong doer in such case should be answerable in damages for the injury so caused by him”.
This Act provides for giving benefit by way of paying compensation in terms of money to the wife, husband, parent and child, if any, of the person whose death shall have been so caused, and shall be brought by and in the name of the executor, administrator or representative of the person deceased.
This Act provides relief for the actionable wrong “whenever the death of a person shall be caused by wrongful act, neglect or default, and the act, neglect or default is such as would (if death had not ensued) have entitled the party injured to maintain an action and recover damages in respect thereof, the party who would have been liable if death had not ensued shall be liable to an action or suit for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to felony or other crime” Under this Act the Court is at liberty to “give such damages as it may think proportioned to the loss resulting from such death to the parties respectively, for whom and for whose benefit such action shall be brought; and the amount son recovered, after deducting all costs and expenses, including the costs not recovered from the defendant, shall be divided amongst the before mentioned parties, or any of them, in such shares as the Court by its judgment or decree shall direct”.
Area and scope of this Act is very limited as it only covers death occasioning in few events.
(ii). The Penal Code, 1860 and other laws: The Penal Code, 1860 defines many crimes which are punishable if committed by any person within the territory of Bangladesh except those who are liable to be dealt with under the special law.
It is worth to mention that none of the sections of Penal Code, 1860 is concerned about the nature of offences which can be committed by the medical treatment providers.
Though an action can be taken against the offender whoever causes death by doing any rash or negligent act not amounting to culpable homicide under section 304A but that is not sufficient and against this is only confined to the offence causing death.
The offences as can be committed by the medical treatment providers may not be strictly termed as crime when mens rea is absent but actus rea caused injury to the patient or to their family.
Even, if the legislatures think appropriate that those acts of the medical service providers should be treated as crime there should be a specific guideline for that.
But nowhere in Bangladeshi laws there is any provision which defines the nature of wrong committed by the
medical treatment providers and what should be the liability for committing those wrong and what should be relief thereon.
(iii). Contractual Liability:In our country there is no explicit medical treatment agreement executed willingly between the patient and the doctor or medical institutions before every the medical treatment formally or informally starts.
In the developed countries and also in some developing countries this is the usual practice now.
This is not a form fill-up type formal procedure that we have in our medical hospitals for releasing the liability of the primary health care providers in good faith defense and alternatively for undertaking strict responsibility for paying costly bills at the end of session.
Many countries including USA, UK, Turkey, etc medical treatment agreement is qualified as mandate and medical liability is based on that agreement.
Under this agreement primarily doctors are obliged to carry out medical intervention and treatment in accordance with their professional standard. Informed consent is a pre-requisite of all medical intervention and proper treatment.
But, in our country except in some rare and serious medical cases no primary consent is taken by giving proper information about the disease, treatment, fees, medical intervention, next step, diagnosis, etc either to the patient or their family.
As regards treatment in medical hospital the agreement is concluded between the patient and the medical hospital authority. In this respect all the doctors, nurses and other employed personnel including staffs by the private hospitals are the auxiliary to the medical treatment.
In this case the primary responsibility goes to the private hospitals authority and secondary responsibility goes against the doctors, nurses and other employed staffs by the private hospitals who are the auxiliary to the medical treatment. Apart from this they i.e. concerned medical hospitals authorities along with employed auxiliaries may always hold responsible with criminal liability.
Though there is no explicit medical treatment agreement but still there is scope for enforcing the contractual liability against the health care providers under the social contract theory for claiming damages against the health care violators.
The Contract Act, 1872 can play a major role in this regard if it is amended properly. Apart from this principles of natural justice, inherent power of the civil courts, jurisdiction of higher courts to enforce fundamental rights as guaranteed under our Constitution, judicial review as exercised by the High Court Division under Article 102 and power of doing complete justice of the Appellate Division under Article 104 of the Constitution can be rightly invoked to take legal action against the health care violators for securing appropriate relief.
The writer is Advocate, Hoque & Associates
