There is a very real examples of law in Bangladesh for the Medical Practitioners. But Medical negligence is a continuous occurrence which has happened for the wrong treatment or inexperience of the Medical practitioners. It is an article on that.

1. Term Paper
3rd Semester-2017
Course Name:
Criminal Law (LAW- 2303)
Topic
Medical Negligence in Bangladesh: Law & Practice
Submitted To:
Md. Abu Bakar Siddique
Lecturer
Department of Law
Faculty of Security and Strategic Studies (FSSS)
Bangladesh University of Professionals (BUP)
Submitted By:
Name:- Abir Hossain Talukder
Program: LL.B (Hon’s)
Class ID: 16421009
E-mail: abir.bup@gmail.com
Date of Submission: 02.05.2017

2. Table of Contents
Serial Discussion Point Page
Numbers
1. Introduction 3
2. Medical Negligence in Bangladesh 3
3. Rights that given in our Bangladesh Constitution 4
4. Nature of Medical Negligence 5
5. Negligencein Treatment:Actual Incidencesin Bangladesh 9
6. Law on Medical Negligence 9
7. The Penal Code, 1860 about Medical Negligence offences
and Defenses:-
10
8. Medical NegligenceunderConsumer Protection Act 2009 10
9. Reform Proposals for Medical Negligence 11
10. Setting up a Medical Review Bureau for Medical
Negligence
12
11. Conclusion 12

3. Introduction:-
For a patient a doctor is like a well-wisher. Sometime patients compare a doctor like God. But that
is what a patient thinks. In reality, doctors are human beings and to err is human. Doctors may
commit any mistake. It may be happen for their negligent.
Any negligence which is made by a doctor is quite difficult for the judges as they are not trained
in medical science. Their decisions are mainly based on expert’s opinion. Judges apply the basic
principles of a law in conjunction with the law of the land and they make a decision.
However, we the general people by hearing the word Medical Negligence, we mainly concerns
negligence or rash act of medical professionals causing any injury to the patients. This medical
negligence is one kind of professional misconduct of a medical practitioner. Generally by sense,
medical negligence may not include professional misconduct or malpractice, of other kind such as
fraudulent, misrepresentation regarding eligibility or qualification of a doctor. More importantly
this issues have a nexus at their origin or beginning. Therefore, while dealing with medical
negligence and the right to health care, it is essential to consider all kinds of aspects of medical
services in order to make a comprehensive assessment. Now a days Medical Negligence is an issue
of serious human rights concern that violates the human rights also. It directly affects the “Right
to life and right to health care”.
Medical Negligence in Bangladesh:-
Now – a – days, our technology is developing. Advantage and technologies have been introduced
in some health care providing both public and private medicals in our country. It is often perceived
that a quantity number of patients of the total population of Bangladesh don’t rely on the treatment
of national health care providers. People of Bangladesh frequently rash to another foreign country
for better treatment by indicating the negligent behavior of our health care providers. People are
now much more conscious and aware of such negligent behavior done by the health care providers
through media (In newspaper, by leaflet Publication or television broadcasting).

4. From June 1995 to September 2008, Ain O Salish Kendra, which is now one of the leading human
rights organization in Bangladesh, ascertained about 504 medical negligence cases. In the most
cases provide evidence of very unpleasant picture of our health care sectors. 1
According to Article 15 (Bangladesh Constitution) “it shall be a fundamental responsibility of
the state to attain, through planned economic growth, a constant increase of productive forces and
a steady improvement in the material and cultural standard of living of the people with a view to
securing to its citizens-
1) the provision of the basic necessities of life, including food, clothing, shelter, education and
medical care.” 2
It is clearly said in clause 1 of Article 15, the necessity of every people about medical care. The
state should ensure a proper medical care for every citizens.
However, there are some limitations in Bangladesh which we cannot be denied. According to
world Health Organization (WHO) expenditure on health sector should be $34 for per person,
where in our country it is only $5. In Bangladesh by the research of WHO the ration of Doctor to
Nurse is 1:0:48, where the standard ratio should be 1:3. Both of this evidence we cannot solve by
overnight. 3
Rights that given in our Bangladesh Constitution: -
In our society every doctor has professional, legal and as well as moral duty towards the patients.
It is the duty of a doctor to save the life of a patient. According to the World Medical association
Declaration of Geneva, “a member of medical profession shall solemnly pledge stating that health
of the patient will be a first consideration.”4 On the other medical negligence means clear violation
1 http://archive.thedailystar.net/forum/2012/August/on.htm , accessed in 16 April 2017.
2 MD Mizanur Rahman,Constitution of Bangladesh [Firstpublished October 2011,reprinted September 2016] PP-
65 – 66
3 http://www.askbd.org/ask/wp-content/uploads/2014/02/Report-Medical-Negligence.pdf , accessed in 17 April
2017
4 World Medical association of Geneva Declaration,United Nations Organization.

5. of the right of patient to health by a professional group who are actually on duty to protect when
the health situation of a patient or emergency strikes and the health rights are under threat.
Besides, this culpable carelessness in the field of medical negligence and it involves risk to the
health and being of an individual entrusts his well-being into the hands of a doctor. If we deeply
thinks, it is nothing but a clear violence of right to health and right to life guaranteed by the
Constitution of Bangladesh under Article 18 and 32.
Nature of Medical Negligence: -
Before going into the details of medical negligence, we have to understand the concept of
negligence. Negligence means heedless or careless conduct of any person. The term Negligence
has been defined by Rattan Lal and Dhiraj Lal 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 man would not do.5
Negligence as per the law of Torts is a breach of legal duty to take care resulting in damage to the
person claiming it. Austin defines negligence as ‘In cases of negligence, the party performs not an
act to which he is obliged, he breaks a positive duty’. Medical Negligence itself is open to wider
interpretation. Medical negligence can be define as the treatment by a medical professional that
does not meet the medically accepted standard of care. On the other hand Medical Negligence can
be defined as it is a professional negligence by act or omission by a health care provider in which
care provider in which care provided deviate from accepted standards of practice in the medical
community and causes death to the patient, with most cases involving community and causes
injury or death to the patient, with most cases involving medical error. In the case of Seeramoney
“the judge of Apex Court said, any medical authority including doctors, nurses or specialist who
assumes any part of the responsibility for a patient’s medical care can he held liable for medical
5 Ratanlal and Dhirajlal [TheIndian Penal Code, Nagpur: Wadhwa& Co., 1997]

6. negligence. 6 Not only the professional who provide psychological care but also are the authority
related with this hospital responsible for wrong treatment.
Medical Negligence that occurring our daily life:- Most doctors, nurses and health care provider
though highly careful as well as skilled professional but occasionally, tragic mistakes are made in
a hospital, operating room or clinic. Medical mistakes in the diagnosis and treatment of hospital
patients are unfortunately among the most common cases of hospital malpractice. There are many
different types of medical negligence are seen in medical science. Some of the more common
categories of medical negligence are explained below:-
Delayed Diagnosis
A delayed diagnosis can be a form of medical negligence if another doctor would have reasonably
diagnosed the same condition in delay. A delay in diagnosis can make unavailable situation to the
patient’s life and for that result the illness or injury is allowed to progress rather than being treated.
Some of the more serious examples of delayed diagnosis are:
• Untimely Diagnosis of Coronary Artery Disease
• Delay in Diagnosis of Heart Attack
• Delay in Diagnosis and Treatment of Stroke
• Delay in Cancer Diagnosis
• Failure to Timely Diagnose Appendicitis 7
6 Ram Narayan krishnatvs Kalipad Dash bashu,CrlJ[Madras] 244
7 Dr. F. M Bakhtiar Kamal,Senior Surgeon and AssociateProfessor [Skin and Burn Department], Dhaka Medical
College Hospital,Dhaka.

7. Surgical Error
Medical negligence is often associated in operation theatre with complex surgeries, such as, heart,
spine or brain surgery which may cause serious damage or even death within minutes. However,
surgical errors and medical negligence can occur during at the time of most common surgeries. It
is a well-known fact that doctors perform large number of surgeries that every day all over the
Bangladesh. Unfortunately, surgical accidents occur far more often than many people realize.
Surgical medical procedures require an enormous level of skill, and even the slightest mistakes
can have profound effects on the patient. There are various types of surgical errors which are
occurring in our daily operation which may be made in medical sector, such as unnecessary
surgery, wrong site surgery, errors in anesthesia etc.8
Unnecessary Surgery
Now a day, most of doctors are running behind the money. They have lost their service mentally
and almost forgotten the objectives of medical education. For that reason they make unnecessary
surgery for their own benefit, not the patient’s benefit. Besides, unnecessary surgery is often
related to a misdiagnosis of patient symptoms or a medical decision without proper understanding
by a doctor.
Some of the most common unnecessary surgical procedures include:
• Pacemaker Implant
• Coronary Bypass Surgery
• Cesarean Section
• Hysterectomy
8 Professor Dr. Syed Serajul Karim, [MBBS, FCPS, FICS Thyroid, Breast, Endocrine, Laparoscopic Surgeon] General
Surgeon, Bangabandhu Sheikh Mujib Medical University ( BSMMU )

8. Errors in Anesthesia
Anesthesia is a very risky and sensitive part for any kind of major medical operation. So it requires
a specialist (anesthesiologist) to administer and monitor the effect on the patient. A doctor must
have to understand about patient’s medical record, history, and time requirements of the operation
to determine the best combination of drugs to use before making anesthesia. Anesthesia
malpractice can endanger the life of a patient.
Wrong Site Surgery
Wrong site surgery is another type of surgical error, which frequently occurs in our daily operation
of the doctors.
Mistreatment of Difficult Birth
During difficult births, the medical staff may have to use methods for forcing the extraction of the
child. Usually at the time of operation doctors uses to force the child out of its mother. One of the
risks associated with forced extraction is that any improper, or negligent handling of the process
can cause permanent injuries to the baby, especially nerve damage such as brachial plexus injury.
There are some provision in our Penal Code also relating birth when of the causing miscarriage,
of injuries to unborn children of the exposure of Infants and of the concealment of births.
In Section – 312 (Causing Miscarriage) Whoever voluntarily causes a woman with child to
miscarry, shall, if such miscarriage be not caused in good faith for the purpose of saving the life
of the woman, be punished with imprisonment of either description for a term which may extend
to three years, or with fine, or with both; and, if the woman be quick with child, shall be punished

9. with imprisonment of either description for a term which may extend to seven years, and shall also
be liable to fine. 9
Section– 313 (CausingMiscarriage without women’sconsent) and Section – 314 (Death caused
by the cat done with the intention of causing miscarriage)
Negligence in Treatment: Actual Incidences in Bangladesh
In 2012, High Court of Bangladesh summoned a number of doctors for alleged negligence in
treatment. There was a serious allegation of negligence against Labaid Cardiac Hospital causing
the death of Dhaka University teacher Dr. Mridul Kanti Chakrobarty on August 15, 2011. He
had admitted in Lab-Aid with diarrhea related dehydration and his treatment started around an
hour after had been taken to the hospital. High Court Division passed a verdict of Tk 50 lakh
compensation against Lab-Aid Cardiac Hospital after having found the Hospital’s negligence
which caused the death of Dr. Mridul Kanti Chakrobarty (Daily star, August 18, 2011). Earlier, on
July 4, 2011 Professor Abu Nasser M Saleh, a professor of Physiology Department of Rajshahi
University died at Rajshahi Medical College Hospital almost without treatment in the hospital.
Saleh was ‘wrongly diagnosed’ at the emergency department of the hospital where he was taken
with chest pain and referred him to the respiratory unit instead of cardiology department. Both the
incidents drew media attention (Daily star July 6, 2011). 10
Law on Medical Negligence
In Bangladesh there is no particular law on medical negligence except some scattered references
on several medical code, ethics, civil and criminal statutes and some constitutional articles. This
area directly falls within tortuous liability which is not usually welcomed by our courts or the
lawyers feel reluctant to resort to courts for various reasons.
9 The Penal Code – 1860,(ACT NO. XLV OF 1860 , Chapter XVI – [Of Offences Affecting the Human Body]
10 Sheikh Mohammad Towhidul Karim [Lecturer, Department of Law], International IslamicUniversity Chittagong,
Daily Star , 6th July 2011

10. The Penal Code, 1860 about Medical Negligence offences and
Defenses:-
The criminal complaints are being filed against doctors alleging commission of offences punishable under
Section 304A. (Causing Death by Negligence) or Sections 336. (Act endangering life or personal safety
of others) or Section 337. (Causing Hurt by act endangering life or personal safety to others) of the Penal
Code, 1860 alleging rashness or negligence on the part of the doctors resulting in loss of life or injury of
varying degree to the patient. There are some other Sections relating to Miscarriage like Section 312
(Causing Miscarriage), Section 313 (Causing Miscarriage without women’s consent), and Section 314
(Death caused by the act done with the intention of causing miscarriage). Basically a lady goes to any
doctor or in a hospital for delivering her baby. At that time this occurrences can be happen. Sections – 80
(Accident in doing a lawful act) and Section – 88 (Act not intended to cause death, done by consent in
good faith forperson’sbenefit) of the PenalCode contain defensesfor doctors accusedofcriminal liability.
Medical Negligence under Consumer Protection Act 2009:-
Medical negligence with special reference to the Consumer Rights Protection Act 2009 has the
same sanctity of protection and enforcement of the rights of the patients. Now patients can institute
or file a suit under this Act because a medical patient is considered as a consumer and the medical
institutions of Bangladesh of professionals are as service provider under Section – 2, (sub section
– 22, Service)11 though it is not expressed stated in the Act but cases have been filed by any patient
and that would accepted by the courts.
Though this act is about consumer protection generally we means it maybe a consumer related act
but there are many particulars described in Section – 2 of this act. In Section – 45 of this act said
that it will deal with the punishment of not selling or delivering the promised product or service.
It provides imprisonment for a term which may not exceed 3 (three) years or with fine not
exceeding taka 2, 00, 000 (two Lac) or both. Another punishment has been provided of
endangering life or security of the consumer in Section – 52 where it describes any act violating
the rules or regulation under this Act or law which endangering life or security of the consumer
11 Consumer Protection Act, by Zulfiquar Ahmed, AssociateProfessor – Rajshahi University,1st edition 2010.

11. will be punished with imprisonment for a term not exceeding 1 year or with fine of 50, 000 (fifty
thousand) taka, or both.
Again in Section – 53 deals with service provider causes damage to money, health of life or service
receiver by negligence, irresponsibility or carelessness, he will be punished with imprisonment for
a term not exceeding 3 (three) years or with fine not exceeding 2, 00, 000 (Two Lac) taka or both.
However these punishment are not adequate because the amount of fine may be sometimes
inconsistent to the loss or injury by the service providers.
The term ‘medical profession’ has not been inserted expressly in section – 2 whereas in the
Consumer Protection Act of India in 1986 the term has been added under section – 2(1) in 1995.
The Supreme Court in the case of Indian Medical Association vs VP Shanta, 3 CPR (1995) 412,
describes that ‘the health profession as a subject matter under Consumer protection Act. Indeed,
this term should be inserted in our Act so that it becomes definite that the victims suffered through
medical wrongs go to the consumer court and seek proper justice. 12
Therefore, amendment should be taken in our Consumer Protection Act – 2009 as well so that
Medical Negligence litigation can be fall under this and the safety of the general people increases.
It will then be able to addressing common good of the public health.
Reform Proposals for Medical Negligence:-
The government should enact a new law, which can be called, the Patient's Rights Protection
Act. All medical professionals are bound to follow that act 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 upon government hospitals for
their medical malpractice. This Act also emphasis on medical ethics so that the 'Medicare' can be
effectively 'judicially' scrutinized. In addition, the Act will cover the following provisions –
12
Kh Kohinur Akter, The Writer is Lecturer of Law, SSHL, Bangladesh Open University,[Rights monitor -- The
Consumer Protection Act, 2009], March 17, 2015 / LAST MODIFIED: 12:50 AM, May 20,2015

12. • Complete separate Medical Malpractice Court System or Tribunal.
• Organize necessary campaigns, seminars and workshops regarding medical ethicsfor creating
awareness among citizens and medical professionals.
• Favorable budget for healthcare service.
• Checking up the activities of medical practitioners, dentists, private clinics, private hospitals,
pathological laboratories and government hospitals as well.
• All records and documents of hospitals, clinics, diagnostics etc. must be kept in prescribed
computer software.
Setting up a Medical Review Bureau for Medical Negligence:-
There is a need to establish Medical Review Bureau to co-exist with the courts, which can set a
proper balance between doctor and patient. The Medical Review Bureau would be the starting
point of entry to provide a forum outside the courtroom in which the problem may be solved
without expense free for all general public. Its principal role would be to scrutinize the medical
conduct or the malpractice of both the doctors and the clinics. If any expert opinion is needed for
complaint, the Bureau can appoint an expert in this regard. When a patient wishes to bring an
action against the doctor, he submits a written request to the Bureau to consider the claim. The
Medical Review Bureau shall direct the doctor to submit a written objection to the doctors and
fixed a time for reply.
Conclusion:-
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. But now a days there is a great decline in this relationship which
might be due to communication gap between them, commercialization of health services, increased
consumer awareness and finally nonexistence of particular law on medical negligence in our
country except some scattered civil and criminal laws. However, mistakes of medical professional

13. which may result in death of a person or cause permanent impairment. The law does not aim to
punish doctors for all their mistakes, but only to those which are committed out of negligence.
Mistakes may be occurred but which occurs from carelessness and negligence cannot be set off.
The development of law on negligence pertaining to professionals will create a good future for
Bangladesh. As the Bangladesh Medical and Dental Council (BMDC) they should look after public
interest so that role of BMDC is very important for ensuring the patient’s rights. Finally, we hope
and believe that the new proposed enactment relating to medical negligence and our reform
proposals and social movement can reduce the medical negligence in Bangladesh.
References
Books and Articles
1. Ahmuduzzaman and Syeda SH. (2009), Consumer Protection Law: Bangladesh and
International Perspectives, Law Book Company, Dhaka, p.94
2. Dr, L Kabir [Lectures on Penal Code] 1st edition in 2003, reprinted on 2017.
3. Choudhry, A.M (19995), The Law of Torts, P.L.D. Publishers, Nabha Road, Lahore (1995)
, p.81
4. Kassim, Puteri Nemie bt. Jahn(2006), “Medical Negligence Litigation in Malaysia: Current
Trend and Proposal for Reform” Malaysia, p.54. URL
http://www.mdm.org.my/downloads/dr_puteri_nemie.pd f
5. Loewy, E.H. (1994) “Friendship and Medicine”, 3(1) Cambridge Q. Health Care Ethics,
p.52
6. Loewy E.H. And Loewy, RS. (2004), Textbook of Health care Ethics, 2nd Edition, p.83
7. Professor Nayak, R.K. (2004). Medical Negligence, Patients’ Safety and the Law. Regional
Health Forum (India) Vol 8, Number 2, p.5
8. Prakash, S, (2007). A Comparative Analysis of Various Indian Legal Systems Regarding
Medical Negligence: Criminal, Consumer Protection & Torts Laws (Thesis paper).
Hidayatullah National Law University, Raipur, India.
9. Ratanlal and Dhirajlal, (2002) Law of Torts, 24 edition, edited by Justice G.P. Singh;
pp.441-442

14. Other sources
a) Rajmal vs. State of Rajsthan, AIR 1996 Raj. 80
b) Dr. Mohiuddin Farooque vs. Bangladesh & others (Writ Petition no. 1783/1994)
c) http://en.wikipedia.org/wiki/medical_malpractice#cite_note -14 accessed on 15 April,
2017.
d) http://www.lawfirms.com/resources/medicalmalpractice/medical-malpractice-
injuries/types-medicalnegligence.htm accessed on 14 April, 2017.
e) http://www.lawfirms.com/resources/medicalmalpractice/medical-malpractice-
injuries/types-medicalnegligence.htm accessed on April 19, 2017.
f) The Daily star, Bangladesh,
g) The BD News 24 Online, Bangladesh
h) The Constitution of the People’s Republic of Bangladesh, 1972