Rights Investigation
Clinical Negligence
Eshita Tasmin
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Photo: medical-negligence |
Clinical negligence occurs when health professionals fail to perform their duty as per the required standard which is imposed on them in a right and proper manner and as a result of such lack of duty somebody suffers injury. This term “Clinical Negligence” was first introduced in England in 1932. In that year, National Health Service Litigation Authority of England was created to investigate the problems relating to clinical negligence and to settle the issues as well.
Before emphasizing on the area of clinical negligence it is relevant to draw little attention on the concept of negligence. The word “negligence” is mostly attached with law of tort. In fact the centre of this law is occupied by the tort of negligence. This has been nicely and sharply defined by Winfield like this: “Negligence as a tort is the breach of a legal duty to take care which results in damage, undesired by the defendant, to the plaintiff”. For the purpose of constituting negligence the first element is there must be presence of duty of care which is owed by the plaintiff from the defendant. The second element is, the defendant must breach such duty of care and the third and most elements are the plaintiff must suffer damage for the breach of such duty of care. These three points all together constitute negligence. After having a look on the definition of negligence it seems quite easy to define clinical negligence. Doctors and nurses are expected to provide excellent and expert treatment to their patients. And if anyone has to suffer injury for the lack of such care than the concerned doctor is required by his governing body to inform the patient or any one on behalf of the patient about the wrong regarding that treatment. If injury or death is caused during the treatment because of such breach of duty of care then the injured party is entitled to get the compensation within the ambit of “Clinical Negligence”.
The importance of the concept of clinical negligence is highly observed and supervised in developed countries like UK, USA and others. But unlike United Kingdom and USA, in Bangladesh there is no provision for the establishment of any authority which will keep their eyes on to regulate this kind of unwanted negligence in clinical sectors. In Bangladesh one of the leading NGOs, “Ain O Salish Kendro” had discovered 504 medical negligence cases from June 1995 to September 2008. Most of the incidents' of the cases show us the horrible and inefficient picture of our medical sector. It tells us that along with the social and economic condition, our medical sector is just below the standard. Some unsatisfactory lines just reflect our helplessness, for example, “Asma's only kidney removed brings death at last”, “Labaid burnt newly born baby's body”. Famous news anchor and Member of Parliament (MP) Rashida Mohiuddin died after her dental surgery (she was suffering from high diabetics, and just after having the anesthesia before the surgery, she collapsed). Very popular actor Manna also died for such negligence in one of the renowned hospital. Bangladesh is a democratic country and our fundamental rights are protected in our constitution. Among the fundamental rights, “right to life” is a vital one, and the state is responsible to provide all the necessary facilities to ensure the basic necessity of life, including food, clothing, and medical care and so on. Article 18 of our constitution protects the right to ensure the citizen's health right.
Article 15 and 18 of the constitution of Bangladesh are the relevant articles regarding health care. Clinical negligence is a quite new concept in Bangladeshi perspective. The term clinical negligence clearly falls within tortuous liability. But in Bangladesh this type of laws are not widely welcomed. There is no particular law or not statutory provisions for this and there are only some scattered references which are to be followed. No organized authority exists to supersede whether the duties of doctors are followed in right manner or not. So the normal people just feel themselves so helpless that whenever they need Medicare they just go for treatment with some blind trust on the doctors. It is believed that to give the assurance of public health and to avoid medical malfunctioning there should be a comprehensive law regarding medical negligence and useful authority to keep their eyes on the medical sector. By taking these types of steps, the accountability of the doctors may be ensured. Once a law is there, the stage is set to scrutinize the medical errors judicially.
The writer is Lecturer at Uttara University.
