Authored By: Jishan Ahmed
Notre Dame University Bangladesh
INTRODUCTION
Consider a relatively ordinary case. A patient admitted to a private clinic in Dhaka for a routine appendectomy dies on the operating table due to anaesthetic error. The family wants accountability. Where, exactly, do they go?
They could file a complaint with the Bangladesh Medical and Dental Council (BMDC). They could pursue a civil suit in tort. They could attempt a criminal complaint under section 304A of the Penal Code 1860. Or they could file a writ petition in the High Court Division, invoking the constitutional right to life.¹ Each pathway exists in theory. Each is, in practice, substantially obstructed. And none of them connects to the others in any coordinated way.
This fragmentation is not incidental to Bangladesh’s medical negligence law-it is the structural condition of it. The absence of a dedicated statute, combined with dispersed jurisdiction across civil courts, criminal tribunals, and a professional regulatory body with a modest accountability record, produces a system in which legal redress for medical harm is structurally improbable rather than merely difficult.²
This article examines the constitutional and statutory framework, the applicable tort doctrine, the criminal law dimension, and the BMDC’s regulatory role. It draws on comparative material from India and the United Kingdom where instructive, and concludes with specific reform proposals.
“Medical negligence” is used throughout to mean the failure of a healthcare professional to meet the standard of care that a reasonably competent professional in the same field would exercise in the same circumstances, thereby causing harm to a patient.³ The criminal law formulation requires something more-“gross” negligence-and the difference between these thresholds matters considerably in practice.
THE CONSTITUTIONAL AND STATUTORY FRAMEWORK
2.1 Constitutional Provisions
Bangladesh’s Constitution contains no express right to health. Article 15(a)-a directive principle, not a justiciable right-places the provision of medical care among the state’s fundamental responsibilities.⁴ Article 32 protects the right to life and personal liberty, and the High Court Division has occasionally derived a right to health from this provision by analogy with India’s expansive interpretation of Article 21 of the Indian Constitution.⁵
In Ain o Salish Kendra v Government of Bangladesh,⁶ the Court treated systemic healthcare failures as engaging constitutional accountability. The decision was significant but limited: it stopped well short of establishing a general constitutional cause of action for individual medical negligence. The writ jurisdiction remains available in cases of egregious institutional failure, but it cannot substitute for civil liability in ordinary negligence cases-and it is practically inaccessible to most patients without legal representation and resources.⁷
Article 18(1) directs the state to regard improvement of public health as a primary duty.⁸ Like Article 15(a), it is a directive principle rather than an enforceable right, and courts have cited it mainly in support of broader readings of Article 32. It cannot itself ground a claim.
2.2 The Statutory Landscape
No Bangladeshi statute addresses medical negligence specifically. The relevant provisions are scattered.
The Medical Practice and Private Clinics and Laboratories (Regulation) Ordinance 1982 provides for licensing of private medical facilities but creates no civil liability and establishes no standard of care.⁹ Its enforcement record is, by most accounts, poor. The Bangladesh Medical and Dental Council Act 2010 establishes the BMDC with disciplinary jurisdiction over registered practitioners.¹⁰ The Consumer Rights Protection Act 2009 potentially covers paid medical services – a line of argument developed in India but not yet in Bangladesh.¹¹ The Fatal Accidents Act 1855 provides a cause of action for dependants of a person killed by another’s wrongful act or neglect, applicable in principle to fatal medical negligence cases.¹²
What this survey reveals is a statutory landscape in which medical negligence is effectively nobody’s specific responsibility. The most consequential questions -what standard of care applies, how causation is to be proved, what damages are recoverable-are left entirely to judicial development through common law principles borrowed from English tort law.
III. TORT LAW: DOCTRINE AND APPLICATION
3.1 The Standard of Care
Bangladesh’s tort law derives from English common law as received through the colonial period and maintained by post-independence continuity provisions.¹³ The standard of care in medical negligence cases is the Bolam test-a doctor is not negligent if their conduct accords with a practice accepted as proper by a responsible body of medical opinion, even if others would have acted differently.¹⁴ This standard has been applied by Bangladeshi courts by analogy in the absence of any legislative direction.¹⁵
The test is professionally deferential: it allows the medical profession to set its own standard of care through expert evidence, leaving courts to ask whether the defendant’s conduct fell within an acceptable range of professional opinion rather than making an independent assessment.
English courts have moved away from unqualified Bolamism. Bolitho v City and Hackney Health Authority¹⁶ established that a court could, in limited circumstances, reject medical opinion that could not withstand logical analysis. Montgomery v Lanarkshire Health Board¹⁷ abandoned Bolam entirely in the context of informed consent, substituting a patient-centred test: what a reasonable patient in the particular patient’s circumstances would consider material to their decision. Bangladesh’s courts have engaged with neither decision in any reported case, and no domestic legislation addresses informed consent.¹⁸ Whether the Appellate Division would follow England’s doctrinal evolution is uncertain, but the argument for doing so is stronger than is perhaps widely acknowledged-professional deference is difficult to justify in a system where expert evidence is costly to obtain and professional self-regulation is demonstrably weak.
3.2 Causation and Evidence
Causation in medical negligence cases presents difficulties that are partly doctrinal and partly evidentiary. The standard “but for” test-the harm would not have occurred but for the defendant’s negligence-fits medical causation poorly. Patients die of conditions; delayed diagnoses alter probabilities rather than determining outcomes with certainty; anaesthetic errors interact with pre-existing vulnerabilities. English courts have developed modifications- the material contribution approach in Bonnington Castings v Wardlaw,¹⁹ loss of chance doctrine-to address these difficulties. Bangladesh’s courts have not engaged with these refinements in any reported medical negligence decision, which means plaintiffs are still generally expected to prove but-for causation on the balance of probabilities-a formidable obstacle in complex cases.²⁰
The evidentiary dimension is arguably more acute in practice. Proving negligence requires expert medical evidence. In Bangladesh, obtaining such evidence is genuinely difficult: practitioners are reluctant to testify against colleagues in a small professional community; there is no independent pool of court-appointed experts; and the cost of private expert evidence is prohibitive for most plaintiffs.²¹ Many meritorious claims fail not because they are legally unfounded but because the plaintiff cannot assemble the evidence the law requires. This is a structural problem that case-by-case adjudication is ill-equipped to resolve.
3.3 Damages
Assuming a plaintiff establishes duty, breach, and causation, Bangladeshi courts have awarded damages under the standard tort heads-general damages for pain and suffering, special damages for financial losses, and Fatal Accidents Act damages in fatal cases.²² Quantum has been modest by regional comparison, reflecting lower per capita income but also a judicial culture cautious about substantial tort awards. The absence of any structured damages framework-guidelines for non-pecuniary loss, for instance-makes awards unpredictable, compounding the general uncertainty of medical negligence litigation.
CRIMINAL LIABILITY AND PROFESSIONAL REGULATION
4.1 Section 304A and the Gross Negligence Threshold
Section 304A of the Penal Code 1860 makes it an offence to cause death by a rash or negligent act not amounting to culpable homicide, punishable by up to two years’ imprisonment or a fine.²³ The provision has been invoked in medical negligence cases, but convictions are rare.
Following the Indian Supreme Court’s guidance in Jacob Mathew v State of Punjab,²⁴ Bangladeshi courts have applied a gross negligence threshold in medical cases-requiring something beyond ordinary civil negligence, amounting to reckless disregard for the patient’s safety. This is probably the correct approach: criminalising ordinary medical error risks creating defensive clinical practice and deterring practitioners from high-risk specialties.²⁵ The practical consequence, however, is that criminal prosecution provides meaningful accountability in very few cases. The same Jacob Mathew line of authority also requires independent expert opinion establishing a prima facie case before a complaint against a doctor proceeds-a sensible safeguard against harassment that nonetheless creates the same evidentiary access problem that besets civil litigation.²⁶
4.2 The BMDC’s Disciplinary Role
The BMDC, established under the 2010 Act, holds disciplinary jurisdiction to warn, suspend, or remove from the register practitioners found guilty of professional misconduct.²⁷ In theory, this provides a faster and more accessible route to accountability than litigation. In practice, its record has attracted sustained criticism: proceedings are slow, the Council is composed predominantly of members of the medical profession, and sanctions have tended toward formal warnings rather than suspension or removal.²⁸ Published data on complaint outcomes is not systematically available, making independent assessment of the Council’s performance difficult.
Crucially, the disciplinary and compensatory functions are entirely separate. A successful BMDC complaint-even one resulting in suspension-provides no financial remedy to the patient or their family. A family seeking both accountability and compensation must pursue at least two separate processes, which is practically demanding enough to deter all but the most determined and resourced complainants.²⁹
COMPARATIVE PERSPECTIVES AND REFORM PROPOSALS
5.1 India: Consumer Forums
India’s most consequential development was the Supreme Court’s decision in Indian Medical Association v VP Shantha,³⁰ holding that paid medical services fall within the Consumer Protection Act 1986’s definition of “service.” Patients could thereafter bring negligence claims before consumer forums-faster, cheaper, and procedurally simpler than civil courts. The result was a substantial and accessible body of medical negligence precedent that civil litigation had never generated.³¹ Bangladesh’s Consumer Rights Protection Act 2009 is modelled partly on its Indian predecessor, but no comparable judicial interpretation has extended it explicitly to medical services. The opportunity exists; it has not been taken.
India has also engaged more critically with the Bolam test. The National Consumer Disputes Redressal Commission and several High Courts have applied Bolitho-style scrutiny-refusing to accept that producing any body of medical opinion is sufficient if that opinion cannot withstand logical analysis.³² This is a modest but meaningful tightening that Bangladesh’s courts could adopt without legislative intervention.
5.2 Reform Proposals
Five proposals follow from the preceding analysis, ordered by urgency.
First: Bangladesh should enact a dedicated Medical Negligence Act. A single statute should consolidate the applicable standard of care-moving to a Bolitho-qualified Bolam test-codify informed consent obligations along Montgomery lines, establish causation rules that address the specific difficulties of medical cases, and set out a structured damages framework.³³ The absence of such legislation is the single most consequential gap in the current system.
Second: The Consumer Rights Protection Act 2009 should be amended to make explicit that paid medical services are covered, and that negligence claims are cognisable before consumer forums. This would provide a materially faster and cheaper route to compensation for the great majority of patients, who cannot sustain multi-year civil proceedings.³⁴
Third: An independent panel of medical experts should be established-appointed by the Supreme Court or an independent statutory body-available to provide impartial opinion in medical negligence proceedings at accessible rates. Without this, the evidentiary barrier to successful claims will remain prohibitive regardless of substantive law reform.³⁵
Fourth: The Bangladesh Medical and Dental Council Act 2010 should be amended to provide complainants with a meaningful right of participation in disciplinary proceedings, to require publication of complaint outcome data, and to include non-practitioner members in the disciplinary committee. These changes would not transform the BMDC into a court, but they could make its disciplinary function credibly independent in a way that it currently is not.³⁶
Fifth: A statutory framework should establish the relationship between civil, criminal, and BMDC proceedings in medical negligence cases-specifying whether findings in one forum are admissible or persuasive in another. The current situation, in which the same factual dispute can be simultaneously adjudicated in three separate processes with no coordination mechanism, is both inefficient and capable of producing irreconcilable outcomes.³⁷
CONCLUSION
Medical negligence law in Bangladesh is not, strictly speaking, absent. Constitutional provisions, tort doctrine, the Penal Code, the BMDC’s disciplinary jurisdiction, and the Consumer Rights Protection Act together form a legal apparatus that appears, from a distance, capable of providing accountability when healthcare goes seriously wrong.
The analysis in this article reveals a different picture. The standard of care is deferential and underdeveloped. Causation doctrine has not kept pace with medical complexity. Expert evidence is structurally inaccessible to most plaintiffs. The BMDC’s independence is compromised by its composition. Consumer forum jurisdiction has not been extended explicitly to medical services. No statute addresses informed consent. And the various legal pathways to accountability operate in isolation, ensuring that pursuing redress requires navigating not one difficult process but several simultaneous and uncoordinated ones.
None of this is inevitable. India’s consumer forum development, Montgomery’s patient-centred consent standard, and the growing medical negligence jurisprudence in comparable jurisdictions all demonstrate that legal systems can respond to structural inadequacy in this field. Bangladesh’s institutions are capable of the same. The academic case for reform has been made, repeatedly. What has not yet materialised is the political will to match a legal need that is both well-documented and, for most of the people it affects, entirely without remedy.
BIBLIOGRAPHY
Primary Sources
Legislation-Bangladesh
Bangladesh Medical and Dental Council Act 2010 (Act XXXII of 2010)
Constitution of Bangladesh 1972 (as amended)
Consumer Rights Protection Act 2009 (Act XXVI of 2009)
Fatal Accidents Act 1855 (Act XIII of 1855)
Laws Continuance Enforcement Order 1971
Medical Practice and Private Clinics and Laboratories (Regulation) Ordinance 1982 (Ordinance LV of 1982)
Penal Code 1860 (Act XLV of 1860)
Cases-Bangladesh
Ain o Salish Kendra v Government of Bangladesh (1999) 19 BLD (HCD) 488
Dr Nurul Islam v Bangladesh (2003) 55 DLR 515
Cases-India
Indian Medical Association v VP Shantha AIR 1996 SC 550
Jacob Mathew v State of Punjab AIR 2005 SC 3180
Kusum Sharma v Batra Hospital and Medical Research Centre AIR 2010 SC 1050
Paschim Banga Khet Mazdoor Samity v State of West Bengal AIR 1996 SC 2426
Cases-United Kingdom
Bolam v Friern Hospital Management Committee [1957] 1 WLR 582
Bolitho v City and Hackney Health Authority [1998] AC 232 (HL)
Bonnington Castings Ltd v Wardlaw [1956] AC 613 (HL)
Montgomery v Lanarkshire Health Board [2015] UKSC 11, [2015] AC 1430
Secondary Sources
Books
Hoque R, Judicial Activism in Bangladesh: A Golden Mean Approach (Cambridge Scholars Publishing 2011)
Mulheron R, Medical Negligence: Non-Patient and Third Party Claims (Ashgate 2010)
Rahman MH, The Law of Torts in Bangladesh (Mullick Brothers 2009)
Reports
Ain o Salish Kendra (ASK), Annual Human Rights Report 2022 (ASK 2023)
Bangladesh Legal Aid and Services Trust (BLAST), Access to Justice Survey 2021 (BLAST 2022)
Human Rights Watch, A Low Priority: Violations of Patients’ Rights in Bangladesh (HRW 2012)
Journal Articles
Amirthalingam K, ‘Medical Negligence and Patient Autonomy: Bolam Rules in Singapore and Malaysia-Incompatible Viewpoints?’ (2015) 27 Singapore Academy of Law Journal 666
Teff H, ‘The Standard of Care in Medical Negligence-Moving on from Bolam?’ (1998) 18 OJLS 473
