Tortious Liability in medical negligence

Barrister Al Amin Rahman, Advocate, Bangladesh Supreme Court and Partner at FM Associates, Bangladesh : Medical negligence is a common incident in Bangladesh. Every day and even every minute a lot of patients are becoming victims of medical negligence. 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 and reasonable man would not do” (Ratanlal and Dhirajlal, 2002). 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 thus – “In cases of negligence, the party performs not an act to which he is obliged; he breaks a positive duty”. In other words, negligence may exist in non-feasance or misfeasance (Choudhry, 1995). Therefore, medical negligence can be defined as the treatment by a medical professional that does not meet the medically accepted standard of care. In other words, medical negligence is professional negligence by act or omission by a health care provider in which care provided deviates from accepted standards of practice in the medical community and causes injury or death to the patient, with most cases involving medical error. It is a breach of duty by a doctor to perform his or her job as required by their duty. Inadequate skill, care, or speed can be cause for medical negligence claims. Any person, including doctors, nurses, or specialists, who assumes any part of the responsibility for a patient’s medical care can be held liable for medical negligence. Those professionals who provide psychological care are also responsible for the wellbeing of patients and could be charged with malpractice Most doctors, nurses and healthcare providers are highly skilled professionals who are committed to providing the finest medical care. 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. As of complex nature of the practice of medicine, it is no surprise that even the smallest mistake by a doctor can have life-altering (even life-ending) effects on his or her patients.
Medical negligence or malpractice, however, gives rise to criminal offence. Such offences are generally dealt in our country under the Penal Code 1860 (Dr. Hafizur Rahman and another Vs. The State and others 57 DLR (2005) 588). It is worth mentioning that although the Code of Civil Procedure 1908 provides for suit for compensation and there is no substantive legislation that specifically addresses compensation for medical negligence. Therefore, in absence of a developed tort law, the lawyers, courts and the litigants feel unconfident to opt for a civil suit. However, the application of law of tort and its well established principles are not barred by any law. Therefore, it can be concluded that civil suit for compensation has mostly remained an unexplored avenue in seeking remedy for medical negligence.
In most of the countries, medical negligence is generally viewed as an actionable civil wrong, the remedy for which is commonly monetary compensation. In common law jurisprudence, it comes within the purview of the law of torts. Some countries deal the matter generally under the law of torts, such as Malaysia; while some countries provide for separate legislation with specific judicial forum to redress such wrong e.g. in India medical negligence cases are adjudicated under the Consumer Protection
Act. Presently, the law of tort is resorted to regulate medical negligence litigation in Malaysia. Generally, tortuous remedy provides for compensation only when a doctor or any other medical personnel assisting in the treatment of a patient is negligent. Previously, in determining whether a doctor was negligent in diagnosis, treatment and advice, the court had shown a deferential attitude towards medical judgment. This is in contrast to the attitude of the court towards other professions such as engineers and architectures where the court does not hesitate in questioning the appropriateness and reasoning of the standard practice adopted by those professionals. However, this deferential attitude which is encapsulated in the phrase “a doctor knows best” is slowly dissipating.
Ascertaining the damage caused to the patient or victim is very important in litigations involving medical negligence. The damage must be actual and not too remote. The damage can be measured in terms of (i) additional financial expenses for treatment of the complication resulting as a consequence of negligence, (ii) loss due to absence from work, (iii) decreased life expectancy, (iv) loss of organ or limb, (v) death of the patient who could be a wage earner for the family, (vi) loss of consortium etc. The defences that can be set out by the accused may be (a) actual denial that the injury is negligence, (b) contributory negligence on the part of the patient, (c) delegation of duties to a qualified assistant or partner, (d) inherent risk, (e) emergency situation, (f) known complication, (g) unexpected results, (h) difference of opinion1. This principle is known as Bolam’s Test. In Bolam Vs. Frirern Hospital Management Committee (1957), 1 WLR 582, it was held that if there are two accepted schools of thoughts for any treatment, the doctor may apply any one of them. If any complications arise due to the particular method which is recognized and approved by an accepted school of thought, the doctor cannot be held responsible only on the ground that why he did not apply the other method.
The increasing rates of medical negligence cases evince the need to rummage around an alternate remedy. It is very important for victims of medical negligence to have a tenable recourse in civil law, more specifically an action for damages in tort against the person responsible for such negligence and relevant third parties. The attempts in redressing victims of medical negligence have to shift away from the periphery of criminal law to remedies under tort law. In common law jurisdictions where the law of tort is well established such as England, Canada or the United States, victims of medical negligence would have a clear cause of action in tort against both: the person responsible for the loss suffered and relevant third parties. Owing to the underdevelopment of tort law and the lack of tort litigation in Bangladesh, there is little to no jurisprudence where acts of medical negligence have been properly conceptualized as actionable torts. However, since the legal system of Bangladesh is heavily based on English common law, English, and even American, cases would have persuasive value in Bangladeshi courts. Therefore, this piece would suggest pushing legal discourse in medical negligence cases under the laws of Tort going beyond the recourses under criminal justice system.