From neglect to overreaction: Why it's so hard to get justice for medical negligence

For people who are aware of the state of the healthcare industry in Bangladesh and the general lack of accountability of healthcare professionals, the recent deaths of Mahbuba Akter Akhi and her baby at Dhaka's Central Hospital should come as no surprise.

But what did come as a surprise was that the authorities for once decided to react to the incident, although some say, they overreacted to it. The Directorate General of Health Services (DGHS) shut down Central Hospital's operating theatre on Friday (although the ICU was reopened shortly after).  Akhi's gynaecologist Dr Sangjukta Saha has also been sued for medical negligence, while two other doctors have been arrested.

Doctors, indeed, rarely ever face consequences for medical negligence in Bangladesh. The Bangladesh Medical and Dental Council (BMDC) - the organisation responsible for ensuring the conduct of doctors - has only punished 14 doctors in its entire history, with only one doctor permanently losing their licence.

Contrast this with neighbouring India, where, every year, about 5.2 million cases of medical negligence are filed. The National Consumer Disputes Redressal Commission (NCDRC) of India awarded compensation in 135 of the 253 medical negligence complaints it reviewed from 2015 to 2019.

Most complaints in Bangladesh end up in courts, as a civil or criminal case, and even there in the absence of adequate legal framework, doctors are rarely ever held accountable in the end. Many doctors also point out that trying to address medical negligence through criminal courts creates additional issues of furthering encouraging lack of transparency in the healthcare sector.

What is BMDC doing?

According to the former Registrar of Bangladesh Medical and Dental Council (BMDC) Dr Md Zahedul Haque Basunia, when allegations of medical negligence are brought up, DGHS is responsible for addressing complaints against a medical institution, while BMDC is responsible for investigating allegations against doctors.

"BMDC has a disciplinary committee and once a complaint has been filed, they will form a team and send them to the hospital immediately. The BMDC can take action against the doctor and suspend the doctor's registration."

He said that although many people complain to the BMDC most of them do not file related documents. "Ninety-nine % of people do not come up with documents later, and this is the problem. For this reason, the cases do not make any headway."

Public Health Expert Dr M Mushtaq Hussain, however, disagrees.  He said people do not have confidence in the BMDC and as a result, they file cases with the police.

"But doctors' negligence is not a criminal action and arresting people will not solve the problem," he said.

Legal ambiguity

There are no accurate statistics on how many doctors have faced legal repercussions for medical negligence, although Ain O Salish Kendra reported in 2008 that 504 cases of medical negligence had been filed between June 1995 and September 2008. It would appear ASK no longer compiles data on medical negligence.

One of the reasons doctors are not effectively tried for medical negligence is the legal ambiguity surrounding the offence. It would appear different forms of medical negligence fall under different offences under the law.

Aggrieved patients or family members can file cases under the Section 304A, as well as Sections 336 to 338 of the Penal Code 1860, which deal with personal injury cases.

The 2009 Consumer Rights Protection Act also has provisions to safeguard the rights of the patients, by treating them as consumers. People can also file cases in civil court for compensation for medical negligence.

Barrister Tahmidur Rahman, who specialises in medical negligence cases, said Bangladesh however does not have any specific law to deal with medical negligence, which serves as a hindrance towards holding doctors and medical professionals accountable.

"Aggrieved people can lodge a complaint at BMDC, the regulatory body, for medical negligence. But BMDC can, at the maximum, cancel the registration of a doctor permanently," he said.

"In most cases the doctors and patients' families resolve the issues by mediation," he added.

Should doctors be arrested?

Ever since the Central Hospital incident, it has emerged that the accused doctor, Dr Sangjukta Saha, had been promoting herself on social media for a long time, which has of late drawn a lot of criticism.

"This is definitely unethical," said BMA Secretary General Dr Md Ihteshamul Haque Chowdhury, who is also the chairman of BMDC disciplinary committee, adding, "however, we do not have the mandate to carry out any investigation on our own without any complaint."

Dr Md Ihteshamul added that they had heard in the media that Dr Saha does not have BMDC registration.  "We are looking into it. If it is correct, then it is a gross violation."
However, in a statement issued on Saturday, Bangladesh Medical Association (BMA) President Dr Mostofa Jalal Mohiuddin and Dr Md Ihteshamul said the allegations against the two doctors should have been verified before they were arrested. They demanded that the doctors be released without delay.

Dr Md Ihteshamul said the 'process' through which the two doctors were arrested was 'illegal'. "The existing law does not allow the immediate arrest of doctors," he added.