Faulty hip implants: J&J payout formula may set template for other damages suits

New Delhi: Indians who received faulty hip implants sold by a unit of Johnson and Johnson Pvt. Ltd will get as much as ₹1.23 crore, the highest ever compensation awarded in the country for medical negligence.

Faulty hip implants: J&J payout formula may set template for other damages suits

The compensation amount varies from ₹30 lakh to ₹1.23 crore, depending on age and disability, and may set a precedent for future cases of medical negligence.

By contrast, the patients of Bhopal gas tragedy of 1984, the world’s worst industrial disaster, are still battling to get decent compensation.

“The entire process of compensation in the Bhopal gas tragedy was wrong,” said Sanjay Parikh, the lawyer representing the victims of Bhopal gas in the compensation case.

After years of dilly dallying, in 1989, the Supreme Court settled the Bhopal case at ₹750 crore for the total 105,000 victims, including 3,000 dead and 102,000 injured. While the amount of compensation allocated for dead ranged from ₹1 lakh to ₹3 lakh, for those left with permanent or partial disability, it varied between ₹50,000 and ₹2 lakh.

The story of Bhopal gas tragedy is one of the most tragic in the history of India, said N.D. Jayaprakash, convenor of Bhopal Gas Peedith Sangharsh Sahyog Samiti and a member of the advisory committee on Bhopal set up by the Supreme Court in 2004. “Most cases in the Bhopal gas tragedy have got only ₹25,000 compensation. It took 12 years (1992-2004) to settle it. We opposed the compensation in 1989, the government filed a curative plea to seek more money in 2010 but the case is still pending in the court.”

J&J has been accused of adopting double standards, with patients affected in countries such as the US, Australia, Canada receiving far higher compensation than in India.

Experts probing the eight-year-old case of patients who underwent revision surgeries after being fitted with J&J’s faulty hip implants in India have held the company responsible for “serious medical negligence” and being “non committal” in providing any compensation in India contrary to a hefty compensation of $2.5 billion that it agreed to pay to around 8,000 US citizens who had sued the company following faulty hip implants.

Late on Thursday, the government announced patients fitted with faulty hip implants by J&J be compensated between ₹30 lakh to ₹1.23 crore along with an additional ₹10 lakh for non-pecuniary damages. The health ministryapproved the formula for determining quantum of compensation for patients who had received prior to August 2010 acetabular surface replacement hip implants made by DePuy International Ltd, a unit of J&J. While a base compensation of ₹20 lakh was recommended by the expert committee formed in 2017, this has been enhanced keeping in mind the disability and age of the patient.

Gopal Krishna, director Toxicswatch Alliance, a non-governmental organization, said “There should be no double standards like it happened in the disaster caused by Union Carbide Corp.”

“If indeed each victim of the implant is paid more than a crore for the resulting injury and suffering, that would be a decent amount by prevalent Indian standards,” said Shamnad Basheer, founder of website SpicyIP and former chair professor of intellectual property law at West Bengal National University of Juridical Sciences, Kolkata.

According to the formula culled out by the experts in the J&J case, the range of compensation will vary depending on the patient’s disability. The compensation also varies for persons of ages between 16 to 65 and beyond. The lesser the age and more the percentage of disability in the patient, the more the compensation.

While the drug regulatory body will write to J&J to start the compensation process, S. Eswara Reddy, Drug Controller General of India, said the compensation amount has been accepted by all “stakeholders”. “This will be the highest ever compensation which will be paid to living patients.”

J&J did not respond to an email seeking comment till press time.

source: livemint


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