One year back, on 19 February 2024, the death of Raahib Reza due to a sudden cardiac arrest, at the capital's Labaid Hospital, Dhanmondi, shocked the country. It was alleged that the cardiac arrest happened while undergoing endoscopy, a relevantly low risk procedure. On 11 March same year a writ was filed on behalf of Raahib's family seeking an independent investigation into the death of victim and claiming Tk 10 crore in compensation for the alleged negligence of doctors. A High Court Division (HCD) bench issued a rule on the same day, ordering an investigation accordingly.

The inquiry report, submitted on 19 September 2024, was supplemented with a clarification letter from the Ministry of Health. The report found gross negligence before, after and during Raahib's endoscopy. It was also found that Raahib's consultant, Dr. Mamun conducted 67 endoscopy the day alone on which Raahib was admitted to the hospital. The report further revealed that seven out of the eight members of the team that conducted the endoscopy had no credible certification to conduct such procedures. The report however could not determine whether anaesthetic (Propofol) or sedative (Merozolyn) was administered to the victim thus showing gross negligence on the part of the hospital administration as well.

Unfortunately, this is one of many cases where a patient's death owes to healthcare professionals. Such situation would be more avoidable and less fatal if we had a medical negligence tort law. Tort refers to an act or omission, other than a breach of contract, which gives rise to injury or harm to another and amounts to a civil wrong, for which courts may impose damages or compensation. 

However, there do exist a few legal provisions under which medical negligence may be addressed in Bangladesh. Our Constitution has incorporated the right to life and personal liberty as one of the fundamental rights in Article 32. However, the State is yet to enforce this fundamental right on a satisfactory level in respect of medical negligence. Again, Section 304A of the Penal Code, 1860 is titled 'causing death by negligence' which mentions that a negligent act causing death not amounting to culpable homicide is an offence and provides maximum punishment of 5 years or fine or both. This section is not exclusive to negligence by medical professionals, but it is one of the predominant provisions that are invoked in case of medical negligence. Further provisions which are relevant, but not exclusive to dealing with medical negligence, include sections 314, 323, 325, 336-338, with the terms of imprisonment ranging from three months to ten years. But provisions such as sections 88 and 89 do excuse any such act done if done in good faith.

Another significant provision lies in section 53 of the Consumer Protection Act, 2009 which mentions that an act done in negligence by a 'service provider' which causes damage to the life or health of a 'service receiver' shall be subject to imprisonment up to 3 years or fine of not more than 2 lac taka or both. The term service provider undoubtedly is capable of including healthcare professionals, clinics and private hospitals. While the punitive remedy seems reasonable to some extent, it is to be noted that any loss to life or limb is worth much more than the said amount.

The framework is therefore a patchwork, and a codified law could have been far better in helping the claimants opt for a forum and a process to navigate. In recent years, medical negligence has been, notably, acknowledged by the High Court Division in several cases in the form of Public Interest Litigation (PIL). Seeking remedy through PIL skyrocketed in jurisprudential value throughout the last decade. But whether invoking PIL is sustainable in cases of medical negligence without a codified distinctive law is not clear. Articles 15 and 18 of the Constitution, if read together, provides ample scope for the State to legislate on medical negligence tort. Its high time Bangladesh introduced medical negligence tort to uphold the constitutionally guaranteed fundamental rights.

The writer is an LLM candidate at the University of Dhaka.