The recent deaths of six newborns at the Ad-Din Medical College Hospital in Dhaka jolted the nation, and most people believe negligence is the probable cause. Human beings are not infallible, so negligence occurs worldwide and cannot be eradicated. Since negligence is not fully preventable, it can, however, be handled more effectively by ensuring that victims are duly compensated for their irreparable losses and damages.
Providing meaningful redress to victims will require changes to the current system. Three immediate reforms must be considered: requiring business entities to carry adequate liability insurance, authorising lawyers to represent clients on a contingency-fee basis, and establishing a negligence tribunal to resolve negligence-based lawsuits. A contingency fee is a compensation arrangement in which lawyers are paid only if they obtain a favourable judgment or settlement on a client’s behalf. Under this arrangement, the client is not required to pay any upfront legal fees or costs. Instead, the lawyers receive a percentage of the monetary recovery, typically 30 to 35 percent, depending on the case’s complexity. This fee structure enables victims to pursue justice and seek compensation for harms caused by a negligent act.
Negligence arises from a careless act or omission; in most cases, business entities fail to provide the standard of care. Determining whether negligence caused a particular harm can be complex and often requires a detailed analysis of the facts and circumstances. Usually, an expert with extensive knowledge in a particular field conducts a conclusive assessment of negligence; finding and hiring a qualified expert to provide testimony before a judge can be costly.
Most victims are unable to obtain expert testimony on their own. When lawyers are allowed to charge a 30-35% contingency fee on the recovery amount, they handle the work of finding and paying for expert testimony in the hope of a favourable monetary award. Thus, victims face less financial pressure when pursuing compensation and seeking justice for wrongdoing. Therefore, a contingency fee basis can make it more practical to pursue a negligence claim, especially when the business carries sufficient liability insurance coverage.
In developed countries, insurance companies pay the compensation awarded by a court or tribunal. Businesses and service providers there operate with greater confidence, knowing they are protected if sued for negligence. For example, doctors carry malpractice insurance, while other professionals, such as accountants and insurance brokers, carry errors and omissions insurance. Accordingly, when a business receives a negligence claim from a customer or client, it contacts its insurer. The insurer then works with the claimant to assess and resolve the claim, often before the matter goes to court, based on the severity of the loss or damage. In this way, insurers help reduce the financial and legal pressures faced by entrepreneurs and business owners. Illicit acts such as assaults are not covered by insurance.
When businesses and professionals have liability insurance coverage, and lawsuits are tried in a negligence tribunal, victims receive compensation much faster than in the regular court system. Now is the time to act on these ideas to make changes to the current system. However, implementing contingency-based legal fees, which require liability insurance to adequately compensate victims of negligence, will not work if negligence cases are not tried in a negligence tribunal. Regular courts are inundated with lawsuits, and case backlogs are enormous.
Bangladesh has 2,307 judges for 18 crore people – one judge for every 78,023 citizens – one of the lowest judge-to-population ratios in South Asia. Due to the shortage of judges, backlogs and caseloads are not decreasing. On top of this, if victims seek redress for wrongdoing in the lower courts, it will take roughly twenty years to resolve a claim if a defendant appeals all the way to the Supreme Court. Critics may argue that these concepts are not implementable. History shows that whenever a new concept is introduced, it is often dismissed as a fatuous proposition. When Jeff Bezos of Amazon thought of selling books online, people thought he was a zany thinker. Now, Amazon is not only selling books but also selling many other items. He became a billionaire by implementing his concept of online selling. He proved that ideas matter.
Therefore, the time has come to grant statutory authorisation for lawyers to charge contingency fees to clients. When lawyers receive statutory authorisation to charge a contingency fee, they will be able to advertise their services by stating that no legal fees are required to pursue compensation if you are a victim of negligence, financial injury, wrongful death, or termination. Businesses will take the legal consequences seriously because this arrangement will lead to more litigation. The fear of litigation will compel businesses to provide standard care, as in developed countries. Victims of negligence, as in the case at Ad-Din hospital, would have had recourse to seek redress if we had a system like the one in developed countries. Bangladeshi citizens deserve such a system as well.
The writer is a Payroll Compliance Practitioner based in Canada. E-mail: [email protected]
