"If A Doctor Can't Administer Drug Due To Its Unavailability, They Cannot Be Held Responsible" Observes Bombay High Court

The Bombay High Court on Thursday orally observed that doctors could not be held responsible for failing to administer covid-19 drugs to patients if the medicines were unavailable owing to their short supply.

"The Doctors are attending work 24/7 wearing the PPE kits. Thereafter, are they to face Investigating Officers over one or two cases where the patient's party is aggrieved and complaint's of medical negligence? There has to be a balance." the Bench remarked.

"We are witnessing that the essential drugs are scarce. If a doctor cannot administer a drug due to its unavailability, they cannot be held responsible for that." It added.

The Court clarified that it would not stand in the way of genuine complainants, but doctors can't be harassed merely because a particular drug could not be administered due to its non-availability.

"Please let us know as to how we can pass orders and protect doctors from being prosecuted at this stage. Of course if there are genuine cases, definitely we will not stay in the way." the Bench said

A Division Bench of Chief Justice Dipankar Dutta and Justice Kulkarni was hearing a clutch of PILs filed relating to Covid Management in the State. . The court asked Advocate General Ashutosh Kumbhakoni to look into the issue of doctors being harassed this way.

It further asked Kumbhakoni to check if the Apex Court's judgement in Lalita Kumari's case can be applied in this situation. Instead of an FIR being registered immediately, there could be a preliminary enquiry, otherwise the unnecessary prosecution may demoralise doctors, the bench said.

The Court observations came in response to submissions regarding Doctors being accused for not prescribing certain drugs and cases being filed against them for not administering medication, which is not available.

During the hearing, Dr Rajeev Joshi, a member of Indian Medical Association urged the Court to pass an order and clarify that Doctors should not be held responsible for inefficiency of Government in supplying Medicines and Resources, as patients are "taking the Doctors on task".

"Who will protect the doctors, There will be cases in the Court, and we will have to spend our energy and money to defend those cases." Dr Joshi said.

The Indian Medical Association member informed the bench that investigational drugs Tocilizumab and Dexamethasone have different uses. Patients who don't respond to the anti-inflammatory action of Dexamethasone usually react to Tocilizumab. Therefore in life-threatening situations, where Dexamethasone doesn't help, only then Tocilizumab is prescribed, as per Maharashtra government's guidelines.

"Its is not correct to say that doctors are using it indiscriminately and making money out of it, which is a wrong assumption." Dr Joshi said.

Dr Rajeev Joshi further said that, Doctors are unnecessarily being targeted and are being sued by the patients.

"If we follow the protocol or don't follow, the patients are targeting us, and 100s of cases have been filed for which there is no legal protection. "Joshi added.

The Bench then stated that the patient's treatment protocol should be left to doctors as far as possible. Considering the patient's clinical condition, what drug is required at a particular point in time, medical experts would know best, the court observed.

"Statements are being made in Court or in the Media, resulting in patients coming to Doctors saying that they are not following this or that protocol." the Doctor said.

Responding to the Court's question as to whether an alternative is available for Tocilizumab, whose supply is scarce, Dr Joshi stated that no such alternative is available. He informed the Court that the first line of management is Dexamethasone; if that does not work, Tocilizumab is administered. If that is not available, other anti-inflammatory drugs are given as finally trial and error have to be made to save patients.

"Its not correct to say that Doctors are indiscriminately using Dexamethasone and medicines worths Rs 10 is being replaced by Rs 40,000 medicine. These are very serious allegations! "Dr Rajeev Joshi said.

"What's the percentage of success with Dexamethasone?" the Bench asked.

Dr Joshi responded saying that the drug is helpful in about 70-80% of cases, however in the end, it's the patient's body that has to respond.

The Bench further asked if it is possible that instead of going by first line of treatment of administering Dexamethasone, Doctors would straightaway prescribe Tocilizumab.

Dr Joshi stated that it is not possible as Doctors are also aware of the cost and the non-availability of the Medicine. "If the patient is not responding, both may be used simultaneously as it's about saving the patient's life," he said.

Advocate Atharva Dandekar appearing for petitioner Sneha Marjadi informed the bench that several Doctors had approached him as they have received notices from Police Stations. He added that relatives of patients who have died of Covid, often go to the Police Stations with the treatment chart in one hand and the applicable protocol in another.

They compare the two and say that since the protocol was not followed, their relative died, without understanding that the Doctors make a clinical judgment about what drug to give and what course of treatment to follow.

"What I am seeing is that Doctors who are working in Covid wards 24/7 have to take the time out and explain to an Investigating Officer, the Medical niceties of why they chose to give oke treatment and not the another." Dandekar said.

Dandekar added that the Court may consider issuing guidelines to police stations as to how to investigate these cases and approach such complaints. He clarified that he is not saying that there is no negligence, but given the situation where the Doctors are so overburdened, the first knee jerk reaction should not be to start criminal proceedings against Doctors. .

The submissions were made after Advocate Rajesh Inamdar appearing for one of the Petitioners Nilesh Navlakha submitted before the Court that there is still a demand of the drug Tocilizumab in the State, however sufficient supply is not there. He also argued that if the drug is itself in short supply, then an alternative drug should be prescribed.

The Bench asked both State and Centre to "put their heads together" and examine the issue regarding availability of Tocilizumab.

"Till the time we are getting positive cases, we will require available of this drug (Tocilizumab) On war footing there should be some mechanism to ensure the availability of this drug" the Bench said

Edited by Sharmeen Hakim