Medical Negligence during the COVID-19 Pandemic Outbreak is a Paramount Dispute of Healthcare System

Table of Contents

Abstract:

Acknowledgement:

List of Abbreviation

List of Figures:

CHAPTER ONE: PROBLEM STATEMENT
1.1 Introduction:
1.2 Background of the Problem:
1.3 Rationale for the Research:
1.4 Research Question and Objectives
1.5 Scope and Limitations of the Study:

CHAPTER TWO: LITERATURE REVIEW
2.1 Conceptual Framework of Medical Negligence:
2.1.1 Misdiagnosis:
2.1.2 Delayed Diagnosis:
2.1.3 Surgical Errors:
2.1.4 Denial to Provide Treatment:
2.2 Legal Framework of Medical Negligence and Key Loophole:
2.2.1 Healthcare in the Constitution:
2.2.2 Medical and Dental Council Act, 2010
2.2.3 Core content of Consumer Rights Protection Act 2009:
2.2.4 Penal Code 1860
2.2.5 Limitation of existing sections of the Penal Code:
2.2.6 Public Interest Litigation for Medical Negligence:
2.2.7 Remedy for Breach of Contractual Obligation:
2.2.8 The New Medical Services Act (draft):
2.2.9 Infectious Diseases (Prevention, Control and Eradication) Act, 2018:
2.3 Medical negligence claim under English Tort law:
2.4 The NHS Redress Act 2006:

CHAPTER THREE: METHODOLOGY
3.1 Research Design:
3.2 Data Sources:

CHAPTER FOUR: DISCUSSION
4.1 Delinquency of the Doctors in Bangladesh:
4.2 Doctors Delinquency Results Clash with Patient Party:
4.3 Hospital Delinquency with COVID-19 Patients:
4.4 Increasing Trend of Patients to Fly Abroad for Treatment:
4.5 Macroeconomic Risk of Foreign Treatment Trend:

CHAPTER FIVE: FINDINGS
5.1 Prime Causes of Medical Negligence:
5.1.1 No practical implementation of legal provisions
5.1.2 Ineffective Departmental or Disciplinary Procedure
5.1.3 Inconsistency among the government body:
5.1.4 Ignored Common Law Practices
5.1.5 Vicarious Liability
5.1.6 Corruption
5.1.7 No ethical education
5.1.8 Unity among the doctors
5.1.9 Lack of good motive
5.1.10 Triviality
5.1.11 Remedy:
5.1.12 Lack of knowledge

CHAPTER SIX: CONCLUSION
5.1 Key Recommendations:
5.1.1 Reform of legal framework:
5.1.2 Modification of Legal Framework in General:
5.1.2 Implementation of Existing Legal Provisions
5.1.4 Increase Awareness of the People
5.1.5 Ensure Damages for Negligence
5.2 Conclusion:

Reference List

Abstract:

The contemporary COVID-19 pandemic brings life and death exceedingly closer. The precariousness of carrying contamination of coronavirus and survive is still an exposure of jeopardy due to delay of trial of vaccine. Every life is most precious and not a single life could drop out for medical negligence. Each of the death caused due to medical malpractice must be trialled under the existing legislation although the pandemic situation demands for legislative reform. Any unnatural death due to medical malpractice should keep apart from trial and it is the parameter of human rights standard of a society. The UK doctors are pleading for indemnity for the medical malpractices occurred during the pandemic, the doctors of Bangladesh has no headache in this regards due to weakness of legal framework. Finding explored that the trend of ignoring the medical malpractice cases by the regularity bodies of medical professionals and absence of scope for lower judiciary to handle medical negligence cases have generated severe threats of violence on medical professionals and feeble death of doctor by the disappointed patient parties. Grounded with a qualitative research method, this study focused a new array of recommendation that enrich the law legends with action plan to reform legal framework and incorporate new tort liability into practice.

Acknowledgement:

‘Medical Negligence during COVID-19: Research Call’ arranged by H. N. Associates and this research was supported by this organisation. The organisation has arranged several research agenda and both the authors have facilitated to working with the research team of H. N. Associates very closely and we would like say thanks to all the team members.

Our family members have extended highest cooperation and support to continuing the work without hampering regular life. Without their unconditional support, this was impossible to conduct, thanks to all of them for marvellous assistance.

We would like to thank S. M. Nasimul Hoque Chowdhury, CEO of H. N. Associates for his nonstop effort, expert guidance, monetary support, and enthusiastic encouragement that greatly improved the manuscript. Our special thanks are extended to the personnel of H. N. Associates for sharing their pearls of wisdom with us for the period of the conducting research.

Once again, we express our deepest gratitude to the H. N. Associates for financing this project and providing the opportunity to conduct and all encouragement for meeting research objective.

List of Abbreviation

BMDC = Bangladesh Medical and Dental Council

BSEHR = Bangladesh Society for Enforcement of Human Rights

CID = Criminal Investigation Department

CRPA = Consumer Rights Protection Act

DGDA = Directorate General of Drug Administration

HL = House of Lords

ICDDRB =International Centre for Diarrhoeal Disease Research

MCWC = Mother and Child Welfare Centre

MHMCHC = Masudul Haque Memorial Community Health Centre

NHS = National Health Service

NHSRA = The NHS Redress Act

UK = The United Kingdom

WHO = World Health Organization

WMA = World Medical Association

List of Figures:

Figure 1: The essential of an action for medical negligence

Figure 2: Number of claims and total costs from the fiscal year 2004/05 to 2017/18

Figure 3: Number of clinical and non-clinical claims along with total costs from the fiscal year 2004/05 to 2018/19

Figure 4: Clinical negligence payments from the fiscal year 2017/18 to 2018/19

Figure 5: Clinical negligence claims settlement in the fiscal year 2017/18 & 2018/19

CHAPTER ONE: PROBLEM STATEMENT

1.1 Introduction:

According to the report of Bangladesh Society for Enforcement of Human Rights (BSEHR), from 2012 to 2017, more than 550 people had died due to wrong treatment or doctors' negligence (Solamain, 2017); on the other hand, Ain o Salish Kendra (ASK) listed 504 incidents of medical negligence from 1995 to 2008 (The Dhaka Tribune 2018). The number of incidents of medical negligence is increasing gradually with time. However, the statistics of BSEHR¹ and ASK² based on the incidents that come into front through media or other sources, but the practical scenario is more dangerous than what is reported. Islam and Farid (2015) conducted a research on negligence in governmental hospitals of Bangladesh and identified that more than 93% patients of the public hospital faced negligence in some extent by the related doctors, nurse, technicians, or medical professionals.

To protect public health and reduce number of medical negligence claims, the government of Bangladesh has incorporated some provisions in the Consumer Rights Protection Act 2009 where patients are treated as consumer and treatment as commodity, which is contradictory with the core essence of Geneva Convention 1948. Geneva Declaration 1948 of the World Medical association prevailed that patient is the first priority of a doctor, not a commercial relationship of customer. However, the government of the country has already achieved millennium development goals and successfully reduced the percent of maternal mortality rate, but still a significant percent of pregnant women in COVID-19 pandemic situation died or suffered damages for medical negligence or denial to give treatment.

1.2 Background of the Problem:

The Bangla News24 (2017) reported that in an earlier incident of death of twenty-eight (28) children by taking toxic paracetamol syrup manufactured by Rid Pharmaceutical for which a case was filed by the DGDA³ against five accused in 2009 and by the judgment of the lower court all five officials of that company were acquitted for not getting guilty. In the verdict of the judgment held that DGDA has not complied with the Drug Act 1980, failed to provide seizure list of evidence along with chemical test report and the court find serious negligence and incompetence of the two DGDA officials who breached their duty of care in accordance with the sections-23 and 25 of the Drug Act 1980. The suit was filed in 2009 and ended on 28th November 2016 by setting free all the five accused while the honourable High Court noticed the Health Secretary to know what action was taken against the two DGDA officials, he replied that written warning has given to them. The honourable High Court was not satisfied with such action and again called the Health Secretary to physically present to the court and give explanation. The Health Secretary appeared to the court and by begging unconditional apology informed that the two DGDA officials are suspended from the service. This is a pathetic evidence of medical negligence case in Bangladesh and an evidence of lawlessness where no punishment or compensation has granted for medical malpractice of death of twenty-eight children.

The Daily Star (2006) raised question that how an inefficient organisation like Directorate General of Drug Administration (DGDA) could be empowered or could take responsibility to investigate an incident of murdering 28 children by giving lethal drug other than the CID⁴ of Bangladesh police. Although the section 22 of the Drugs (Control) Ordinance 1982 has provided the power of taking cognizance of a punishable offence to the DGDA as it is the licensing authority so why the organisation has no skill human resource, technological capability and intellectual ability to conduct an investigation such a case of adulteration of drugs is a mysterious question. The common public perception is that there is a strong corruption nexus between the DGDA and pharmaceutical companies and it is the reason why Drug Administration⁵ is reluctant to take any step against adulteration for any medical negligence. The Business Standard (2014) reported that in 1994, in the case of Adflame Pharmaceuticals, by taking intoxicated Paracetamol syrup 76 children died, several hundred caused critical kidney complexities, and the judgement comes with 10 years imprisonment of three officials of the company with penalty of Taka 200,000/= (US$2,600 approx), but no compensation was paid to the affected families.

The Financial Express (2020) disclosed the most dangerous and unethical scenario of Bangladesh health sector by mentioning that countrywide doctors denied to provide treatment at the hospitals during the COVID-19 pandemic outbreak ignoring the governmental order and warning. Huge number of patient died moving from one hospital to another without treatment while they don’t carried any symptom of COVID-19, but the doctors denied to admit and provide healthcare service without COVID-19 negative certificate. Dr. Sushmita Aich daughter of Gautam Aich, an additional secretary the food ministry moved at least five hospitals of the capital city and all over the day, she tried to get her father’s treatment of cardiac disease and required oxygen support, but none of the doctors agreed treating him, at last, he died on Kurmitola Hospital without getting ICU support. There are so many similar pathetic scenarios created by the doctors that make any kind-hearted person to burst into tears, there are a series of unethical incidents of the doctors, but not all come to the eyes of media and to the public view. Any rational person would be afraid where the destiny of doctors would take the nation to spoil its heritage and culture and would rethink is the country lawless to administer the physicians and healthcare system.

Thus, under such inhuman background problem, it is essential to investigate what is the explicit lacuna in the system for which the doctors and hospital administrators dare to breach the duty of care and violate rights accessing to healthcare and how the cases settled without compensation. Consequently, the authors have aimed to investigate with the topic as -- Medical Negligence during the COVID-19 Pandemic Outbreak is a Paramount Dispute of Healthcare System: An Investigation of Uprising Paradigm of Legal Standards in Bangladesh.

1.3 Rationale for the Research:

The purpose of this study is to assess to what extent the existing rules and regulation are capable of protect the healthcare system and safeguard the people from medical negligence of the doctors or immoral practice of the companies. However, protection of right to life is considered as fundamental rights in accordance with Article 32 of the Constitution of Bangladesh, but still many patients lose their life or suffer physical damages due to negligence of the doctors. Very few patient parties get remedy if they able to draw media attention. This report focuses on the nature of medical negligence, present situation of public and private health sector of Bangladesh and the UK; furthermore, this report compares the compensation policy for medical negligence, reason of clashes between doctors and patients and find out the main dilemmas to maintain standard care and many other issues related with medical malpractice.

1.4 Research Question and Objectives

In the period of COVID-19 outbreak, high volume of the patients and increase chance to be infected by the corona virus makes it difficult for the healthcare service providers to treat patients with standard care in some extent; consequently, the number of medical negligence claim is increasing both in the UK and in Bangladesh. Many patients have died before diagnosis or died for wrong treatment for misdiagnosis or for denial to provide healthcare service; so, the main objective of this research is to assess the damage control, if doctors maintained their ethical standard or act with standard of care? Furthermore, the aim of this paper is to address whether doctors think patient first or not, whether there is availability of the remedy for medical negligence; however, three research questions are as follows-

- To what extent compensation for medical negligence could make the medical practitioners more ethical;
- Does the existing legal framework is capable of protect people’s right to life during the COVID-19 situation?
- What reformation of legal framework is emergence?

1.5 Scope and Limitations of the Study:

Scopes includes-

- Lots of available information makes it easy to organise paper;
- Address vast area of research, which would contribute to rethink about reformation of law;
- Find out the core problems in the healthcare sector to ensure proper treatment;

Limitations of the study include-

- In COVID-19 situation, it was not possible to collect data from field survey;
- Insufficient fund to conduct research
- Medical claims related with COVID-19 going on; so, many new issues could be dropped, which come in front few months later;

CHAPTER TWO: LITERATURE REVIEW

2.1 Conceptual Framework of Medical Negligence:

Treatment and care provided by any dentist, doctor, nurse, psychologist or a physiotherapist considered as below standard that the patient further aligned with complicacy and carried out negative outcomes either for lack of skills and know how or for faulty treatment or for erroneous diagnosis would be considered as medical negligence or clinical negative outcomes or medical malpractice. Every patient harmed due to medical negligence has the rights to file lawsuit for compensation; in the UK, the NHS⁶ Trust has taken the burden of financial liability for claims of medical negligence for the doctors’ serves at NHS while the private sector doctors are covered by private insurance. In Bangladesh, healthcare system pedestals on major backbone upon the public sector and partially on the private sector where the patients are considered as consumers and the patients’ rights are protected under the framework of the consumer protection Act and the patients have to place claim to the Directorate General of Health Service.

2.1.1 Misdiagnosis:

Michon (2020) stated that diagnostic errors made by healthcare service providers, which cause injury, damage, death, delayed treatment, direct to wrong or delayed treatment, or without treatment amounts to misdiagnosis; however, a doctor would liable for misdiagnosis while he failed to provide treatment with due care and in a reasonably skilled and competent way. Michon (2020) and Karim, Goni & Murad (2013) further mentioned that doctors would not be liable for all misdiagnosis cases as based upon a preliminary check-up of the patient, physicians may fail to diagnosis; however, misdiagnosis include failure to diagnose Cancer, Stroke and so on. The Dhaka Tribune (2018) reported that a student of Dhaka University named Afia admitted hospital with acute myeloblastic leukaemia and doctors without further diagnosis provided treatment for Dengue, subsequently patient died for wrong treatment and students vandalised hospital; thus, authority of DU filed a case against nine doctors of hospital for medical negligence.

2.1.2 Delayed Diagnosis:

On the other hand, delayed diagnosis occurred when a doctor fails to diagnosis a disease, but another doctor with similar skills diagnosed correct disease in due time, which could save the life of the patient or minimized risks of injury; in COVID-19 situation, the high volume of patients leads delayed diagnosis of many serious case. Serious examples of such case include delay in diagnosis of Heart Attack, cancer, or any other disease; in Gregg v Scott ⁷ nine months after preliminary observation, it was discovered a malignant cancer of a patient, which reduce chance of survival by 25% and the claimant get compensation for delayed diagnosis and loss of life expectancy.

2.1.3 Surgical Errors:

Withers (2020) stated that a surgical error is a preventable fault and all surgeries engage risk for which patient party need to sign in the consent paper before undergoing surgery; however, surgical error occurs while it goes beyond the recognized risks of surgery. Withers (2020) also mentioned that surgical errors are unpredicted and it occurs while surgeon undertakes surgery with below standard of care or beyond reasonable skills, which deteriorate patient’s health or endanger life; furthermore, surgical errors take place for insufficient preoperative planning, undertake unnecessary surgery, and many other reasons.

2.1.4 Denial to Provide Treatment:

The Business Standard (2020) reported that pregnant homemaker with labour pains arrived at Mother and Child Welfare Centre (MCWC) of Gaibandha district of Bangladesh that is a well-equipped hospital owned by the government under the control and management of DGHS, but Supervisor of the health centre refused to admit her without a certificate of Covid-19 negative. She was forced to leave the hospital without any getting any check-up. Then the woman with her family numbers started to look for any other private clinic where she could ensure safe delivery, but under the lockdown, it was impossible and on the street, she delivered a child. Being a state owned hospital how the supervisor MCWC⁸ Towhida Begum dared to refuse health service to a taxpayer, even after the news came to the media, Towhida Begum has not charged for medical negligence.

2.2 Legal Framework of Medical Negligence and Key Loophole:

According to the Geneva Declaration 1948 of World Medical association, a doctor comes to the medical profession by taking an oath that he would dedicate his life to serving the humanity while the health and wellbeing of the patient is his first priority; in addition, he would serve the patient irrespective to the gender, race, or ethnic minority (WMA 2017).

2.2.1 Healthcare in the Constitution:

Part (ii) Article 8 to Article 25 of the constitution of Bangladesh illustrated the fundamental principles of state policy and article 18 described the primary duty of the state is to improvement of public health and article 15(a) fundamental responsibility of the government to attain basic necessities like food, clothing, shelter, education and medical care (MOL 2020). Though these principles are not judicially enforceable, but used as a guideline in making of laws and formulating distinct policies; however, these two principles have not achieved the expected level yet (Hossaini and Hossain, 2017). On the other hand, Part (iii) Article 26 to Article 44 of the constitution exemplified the fundamental rights and article 44 gives enforcement of these rights; therefore, any person aggrieved has right to move the High Court Division in accordance with clause (1) of article 102 by filing the writ petition (MOL 2020). Most importantly, Article 32 illustrates protection of right to life and Article 31 gives right to protection of law; thus, a citizen can claim damages if the right to life hampered due to medical malpractice in lieu of the writ petition (MOL 2020).

On the other hand, in spite of having written constitution in the United Kingdom, the public heath preserve through the implementation of different laws developed in the decades (Middleton, 2017).

2.2.2 Medical and Dental Council Act, 2010

By the provision of section-38 of this act repealed Medical and Dental Council Act, 1980 and section 4, form a regulatory council consist of eight members for governing doctors and related stakeholders. Section-5 illustrates powers and responsibilities of the Council and one of the main functions of this council is to provide registration to the medical practitioners or dentists by provision of section-15; furthermore, section-22 stated that none could provide allopathic treatment or recognized himself as doctor without prior registration; however, section-23, 28, 29 and 30 include provision of punishment, such as-

- In accordance with the provision of section-28, any fraudulent misrepresentation to be registered as a physician or dentist is punishable with imprisonment for a term of 3 years or fine of TK.100000/- or both;
- Section 29 ensures punishment for using false title and section-30 incorporates the provision of punishment for prescribing banned medicines;
- According to section-23, BMDC could cancel registration if any medical practitioner, dentist or related stakeholder is found guilty for misconduct, or infringe any clause of this legislation; however, in spite of having such provision, the number of complaints and the clash between doctor and patient parties have increased drastically due to lack of accountability, and lacunas in implementation process.

The Dhaka Tribune (2017) reported that at least three hundred thirty seven written complaints had launched against the practicing doctors to BMDC in the period of last six years, but only one doctor was punished for medical negligence. This ratio of complain and punishment demonstrated that the investigation procedure of complain was not up to the mark or the council was bias; thus, BMDC failed to perform their statutory duties and gain public confidence on healthcare sector. Furthermore, section 34 of this act provides defences for healthcare service providers from civil, criminal liability or any other disciplinary action against them while act in good faith; however, introduction of such clause gives immunity to the doctors and encourage to serve own interest first since good faith is a vague term.

At the same time, section 38(3)(a) of this Act uphold the Code of Medical Ethics without any change or modification, which set out the normative guidelines along with include punishment for registered medical practitioners for gross negligence regarding professional duties or misconduct.

2.2.3 Core content of Consumer Rights Protection Act 2009:

Unfortunately, in Bangladesh, there is no special law for the patients and other people to seek remedy for medical negligence cases. According to section 2 of CRPA⁹ 2009, patients are considered as consumer and doctors, nurse, hospitals and medical professionals are treated as service provider. Consequently, aggrieved patients get an opportunity to file a case under this act. Though the courts accepted the case of medical negligence, but the described procedure make it difficult for the litigants to get justice.

According to section 45 of this Act, aggrieved person or patient parties could take action for not selling or delivering the promised product or service; however, punishment of such offence is imprisonment for a term not exceeding 1 year, or with fine not exceeding 50,000/= taka, or both. In addition, a person could be punished for doing any act detrimental to life or endangering life, which is prohibited by laws; however, punishment of such offence is imprisonment for a term not exceeding 3 years, or with fine not exceeding 2,00,000/= taka, or both.

However, section 45 and s.52 of this act give victims a scope to seek remedy in some extent, but the provisions under section 60, 61 and 72 makes it difficult for them to get justice. According to section-60 of this Act, aggrieved person or patient parties have to fulfil two conditions, such as-

- Complainant must have to complain to director general or any person of the directorate, otherwise, the application will not be accepted. This condition limited the scope for the courts, police and other law enforcement agency to accept complaint and investigate the issues serious in nature. At the same time, complainant could be confused while it is general conception of the local community to inform police first if any issue arise.
- Complainant have to complain within 30 days from the cause of action arise;

Thus, the provisions of this act failed to protect consumer rights and increased chance of corruption.

2.2.4 Penal Code 1860

The Penal Code 1860 has not incorporated sufficient effective sections to cover culpable negligence of doctors, hospital, other medical practitioners or fraudulent medical practices. However, section 304A of Penal Code gives scope to the patient parties to file case against the doctors for the death of the patient due to breach of duty or any negligence and punishment 2 years imprisonment.

At the same time, the criminal complaints could brought against doctors under sections 336 to 338 of this Code for causing hurt or endangering life or personal safety to others by negligence; on the other hand, sections 80 and 88 of this code includes defences for healthcare service providers from criminal liability while act in good faith.

2.2.5 Limitation of existing sections of the Penal Code:

In most of the cases, patient parties or claimants do not get justice due to the specific provisions containing in the Penal Code, for example, section 88 gives immunity for acts done in good faith. According to Evidence Act, the burden of criminal cases lies on the claimants and the prosecution must proof the case beyond reasonable doubt to ensure punishment of the accused person. In the cases of medical negligence, claimants or patient parties are simple citizen who have limited knowledge about legal framework or medical malpractice. Sections 80 and 88 contain defences for doctors accused of medical negligence cases; therefore, it becomes difficult for the layman to proof mens rea of the medical practitioners. Moreover, both lower and higher courts grant bail of the defendants within short period of custody or instantly.

[...]

---

¹ Bangladesh Society for Enforcement of Human Rights

² Ain o Salish Kendra

³ Directorate General of Drug Administration

⁴ Criminal Investigation Department

⁵ DGDA

⁶ National Health Service

⁷ 2005 2 WLR 268

⁸ Mother and Child Welfare Centre

⁹ Consumer Rights Protection Act