MEDICAL NEGLIGENCE

Published By The Daily Star on July 14, 2012 (Link Above)

This week Your Advocate is Barrister Omar Khan Joy, Advocate, Supreme Court of Bangladesh. He is the head of the chambers of a renowned law firm, namely, ‘Legal Counsel’, which has expertise mainly in commercial law, corporate law, family law, employment and labor law, land law, banking law, constitutional law, criminal law, IPR and in conducting litigations before courts of different hierarchies. Our civil and criminal law experts from reputed law chambers will provide the legal summary advice.

Query
I gave birth to a baby on 20th May 2012. The baby was born and when I saw her the first time, the doctors told me she was a normal baby with no recognisable problems. But then on the night the baby was born, I saw the nurses give her some injections. She has been sleeping since then and the doctors now differ from what they said when she was born and they are not providing me with enough information as to why my baby was given the injection and why she is asleep for so long. Is there any legal action that I can bring against the relevant persons?

Rubi Rai,
Manikganj

Response
I would like to thank you very much for your query. From the fact it appears that your problem is related to medical negligence. In Bangladesh, there is no specific legislation to deal with negligence of doctors. However, negligence is covered under the Law of Tort and hence the doctors may be rendered with tortuous liability for negligence and also held vicariously liable for the negligence of the nurses. Unfortunately, in Bangladesh the practice of claiming compensation for wrongful treatment under Law of Tort is not much popular. Therefore, the Courts are not much prepared to entertain such cases and the lawyers are often reluctant to bring such cases.

Apart from law of Tort, the Penal Code has also provided for bringing an action against anyone for causing death by way of negligence. From your fact, it appears that your newborn is still alive but chances of any harm inflicted by negligent pushing of the injections cannot be ruled out as the doctors are inconsistent with their wordings and your newborn has been in sleep which is unnatural indeed. Therefore, you may consult a lawyer and serve a Legal Notice to the Hospital authority for not providing you necessary information and also challenging their activities which according to you are responsible for your newborn’s unnatural sleeping. You may also go before the Hon’ble High Court Division and file a Writ Petition in this regard. This may be possible as in recent times; the Hon’ble High Court Division has come forward and issued rulings on such incidents asking the hospital authorities as to why compensation is not payable. It is worth mentioning that in recent times, cases have also been filed against such allegedly negligent doctors causing death of patients and trial of some the cases have also commenced.

As the alleged incidences of negligence by the doctors are increasing alarmingly, it is of paramount importance to enact a legislation dealing with such cases of negligence comprehensively. Being human beings, doctors may commit error of judgment but they cannot avoid responsibilities in the light of the duty of care owed to the patients.

I hope you will have answer to your query from the aforesaid opinion.

For detailed query contact: omar@legalcounselbd.com.