Paediatric malpractice: Does the legal system provide legal recourse?
The Bangladesh Medical and Dental Council (BMDC) may be the initial destination for victims of paediatric malpractice
Most of us are familiar with the term 'medical malpractice', which occurs when a medical professional fails to carry out their responsibilities in a competent manner. Nevertheless, most people in Bangladesh do not know what 'paediatric malpractice' is, and neither are they even aware of it as a branch of medical malpractice.
Paediatric malpractice occurs when a paediatrician (a medical practitioner who specialises in children and their diseases) fails to deliver treatment in line with generally acknowledged medical standards and procedures.
Paediatric malpractice on a global scale is a unique concern due to the fact that children may disclose their health condition to physicians in a manner different from that of an adult patient or may not be able to speak the same language. In order to screen for issues that a parent or child is unaware of, paediatric physicians have to conduct thorough examinations of their patients. However, several recent incidents in Bangladesh have demonstrated that paediatricians are not always sufficiently vigilant with their patients.
In this context, two crucial questions may arise: Does the legal system of Bangladesh provide legal recourse for victims of paediatric malpractice? Moreover, how may a victim of paediatric malpractice receive redress?
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Although paediatric malpractice is a unique issue that can result in significant harm, permanent disability, or death for a child, it is regrettable that there is no specific regulation addressing this issue. In fact, Bangladesh does not even have formally codified legislation on medical malpractice under its current legal system.
The Bangladesh Medical and Dental Council (BMDC), however, may be the initial destination for victims of paediatric malpractice. According to Bangladesh Medical and Dental Council Act, 2010 (BMDC Act), a victim of any maltreatment by a physician, dentist, or medical assistant, may register a complaint with the BMDC registrar in the form of a formal application.
According to section 23 of the BMDC Act, BMDC has the authority to cancel the licence of any physician, dentist, or medical assistant if the council determines that he or she has engaged in misconduct or violated any requirements of the BMDC Act.
The BMDC Act does not have the ability to compensate victims of medical or paediatric malpractice. However, the victim might seek compensation for paediatric malpractice by filing a civil lawsuit.
Some could argue that pursuing a civil claim for paediatric malpractice damages in Bangladesh would be difficult since the country does not have a well-developed tort system or statute for a tortious claim. Nevertheless, we have to consider that tort is an inalienable component of the principles of justice, equity and good conscience. As such, the civil courts have the authority to apply it if the victim files a lawsuit using the rights provided under Section 9 of the Code of Civil Procedure 1908.
In addition to a civil lawsuit, Sections 52 and 53 of the Consumer Rights Protection Act, 2009 provide a further avenue for the victim to pursue compensation for paediatric malpractice. However, due to the fact that the amount of fine may occasionally be out of proportion to the damage or loss brought on by the service providers, the penalties outlined in Consumer Rights Protection Act may not be sufficient for all victims. Although Section 2 of the Consumer Rights Protection Act does not explicitly state it, a patient is considered to be a consumer in this context, making medical institutions and experts termed service providers.
Moreover, in the instance of paediatric malpractice, it is even feasible to claim constitutional tort, as Article 32 of our Constitution guarantees the 'right to life' as a fundamental right for its citizens. According to Article 102 of our Constitution, one may eventually file a writ petition with the High Court Division of the Supreme Court when no regular law is readily available to guarantee an adequate remedy for the damage suffered by the victim.
In the case of criminal action, The Penal Code 1860, only recommends that a medical professional be prosecuted for negligence under Section 304(A), which carries a maximum sentence of five years imprisonment, a fine, or both.
The victim or their family members may also take criminal action against the medical professional in accordance with Sections 314, 321-326, and 336-338 of The Penal Code, 1860. However, the same Act also provides defences for medical professionals, as Sections 80 and 88 do so for doctors who are accused of criminal liability.
According to the discussions above, several statutes in Bangladesh can offer redress in paediatric malpractice cases. But such an approach would perplex the general public in terms of obtaining redress. It is essential to recognise that unprofessional behaviour on the part of doctors, negligent medical care, and unclear legal standards are likely the cause of recent increases in paediatric malpractice.
In this regard, the Children Act, enacted in 2013 and based on the Convention on the Rights of the Child (CRC), which Bangladesh ratified long ago, can be used to build a comprehensive remedial process for paediatric malpractice.
Article 3(3) of the CRC states, "States Parties shall ensure that the institutions, services and facilities responsible for the care or protection of children shall conform with the standards established by competent authorities, particularly in the areas of safety, health, in the number and suitability of their staff, as well as competent supervision."
Bangladesh is therefore required by the CRC to safeguard children from paediatric malpractice, as is evident from the text of the abovementioned clause. In the ninth chapter of the Children Act, which includes the penalty for special offences involving children, Bangladesh may include a clause on the punishment (including compensation) for paediatric malpractice. This inclusion may successfully lower paediatric malpractice and serve as a means of establishing a uniform standard of care for paediatricians.
Tanjina Akter Riya is a student of the Department of Law at North South University.
Disclaimer: The views and opinions expressed in this article are those of the author and do not necessarily reflect the opinions and views of The Business Standard.
