Delhi HC refuses to stay compensation formula for Johnson and Johnson

The Delhi High Court on Wednesday denied staying the government-approved formula to compensate patients who received faulty hip implants from healthcare giant Johnson and Johnson (J&J). The court stated that there is “no urgency”, and that it needs to wait for the Supreme Court’s findings on the issue.

Justice VibhuBakhru also turned down J&J’s request to list the issue on Monday and said it will hear “only urgent and important matters”. “Their (J&J’s) petition do not fall under any of the two categories,” the court stated. The court will hear it again on February 26.

Justice Bakhru’s response came after the counsel for J&J asked for Passover of the matter as the counsel leading them in the matter was on his way.

J&J’s counsel said that it’s needed, as patients are lining up after the government’s press release and the letter approving the formula for a compensation amount varying between Rs 30 lakh and Rs 1.22 crore, depending on a patient’s age and extent of disability.

It also commented that the Drugs and Cosmetics Act and Rules, which govern the manufacture, import, sale, and distribution of drugs and medical devices in Indian, do not contain any provision for compensation to patients in the manner that has been sought to be set up and implemented by the government.

“Determination of compensation is the exclusive domain of the judiciary,” the counsel deposited.

To this, the court questioned whether any coercive steps are being taken in pursuance to the government’s approval based on the recommendations of the expert committee chaired by Dr. Arun Kumar Agarwal, former dean, and professor of ENT at Maulana Azad Medical College, New Delhi.

The company’s counsel answered that the Ministry of Health and Family Welfare and the Drug Controller General of India (DCGI) should be asked not to take any coercive steps against them.

The government’s standing counsels GaurangKanth and Amit Mahajan, coming for the ministry and DCGI, contended that a PIL seeking investigations into these faulty hip implants and compensation for victims is pending before Supreme Court, and the committee’s report has been placed before the major court. “We should wait for the Supreme Court’s direction,” Kanth contended.

The company’s counsel deposited that they are not aware of the Supreme Court’s proceedings, and no notice has been issued to the company on that PIL.

The court answered, “Now you are aware of it. You should take steps to place your stand there (apex court). On the next date of hearing, this court does not want to hear that you were ignorant about the case before the Supreme Court…. In view of the fact that the Supreme Court is seized of the mater and the committee report is also a subject issue before the court concern. It would not be proper to proceed in the matter as of now.”

J&J urged the court to matter of a direction to the authorities to quash or set aside the government’s press release. It sought setting aside of the Agarwal committee report, and actions arising from it. It also sought quashing of the Dr. R K Arya committee’s report.

J&J stated in its petition that issues such as payment of compensation are cases of faulty products lie in the domain of consumer protection law.

As rooted on the Agarwal committee’s recommendations, the government had constituted a central expert committee under Dr. Arya, director, Sports Injury Centre, to determine the quantum of compensation. All state governments and UT administrations were requested to create state-level committees to examine the affected patients in their jurisdiction and make the process less traumatic for them. These committees would send their recommendations to the central committee.

Thus, a person aged over 65 years who suffered a disability of 20-30 percent is eligible for Rs 30 lakh compensation under the approved formula, while a 20-year-old person who suffered a disability of more than 50 percent is eligible for compensation of Rs 1.22 crore.

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