Criminal cases cannot be lodged against Doctors because they prescribed costlier drugs: HC

Cuttack: Observing that prescribing any chemo drug or medicine to any patient is the sole prerogative and expertise of the treating doctor, the Orissa High Court recently quashed criminal proceedings against a doctor, who was accused of showing undue favour to various pharmaceutical companies and prescribing costlier medicines to the patients suffering from cancer.

The HC bench comprising Justice Aditya Kumar Mohapatra held that a doctor should not be held criminally liable for prescribing any particular drug of any pharma company unless the said drug(s) are hazardous, non-standard or substandard quality/brand, or restricted by the appropriate Authority of the Government.

Opining that the treating doctor is ethically, morally and legally obligated to prescribe the best medicine to the cancer patients, the HC bench further observed,

"...prescribing any chemo drug or medicine to any patient is the sole prerogative and expertise of the treating doctors. In the matter of cancer treatment, the patients have right to choose their line of treatment and drugs, as per standard protocol, on the basis of counseling from the different available alternative line of treatment / drugs and as per their financial capability. It is the ethical, moral and legal obligation of the treating doctor to prescribe the best medicine to the blood cancer patients as there is a thin line between the life and death of the patients suffering from this sort of fatal disease."

Further observing that there should not be any discrimination in the matter of treatment based on the ground of rich and poor and highlighting that the State is constitutionally obligated to provide the best medicine and treatment to the patients, the HC bench further ruled,

"For prescribing any particular drug of any pharmaceutical company for treatment of a disease like this, a doctor should not be held criminally liable, unless the said drug(s) is hazardous, non-Standard or substandard quality/brand or restricted by the appropriate Authority of the Government For that reason, if the pharma company is benefitted, the same cannot be treated as an undue favour or loss to the Government exchequer. Especially when the patients, on their own informed consent and volition, have paid for the said drugs from their own pockets. Similarly, the Government cannot compel any patient to consume any particular drugs/medicines just because the said medicine/drugs are procured by the government or because the said drugs are cheaper than the alternatives, which might be more efficacious. Moreover, the price of the said drug in question has been fixed by the appropriate authority of the Government."

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The Court noted that the prescription audit conducted by the Government agency has not pointed out any such illegalities during the relevant period and the Screening Committee, which scrutinized the application and bill including the medical prescription did not object to the same at any point of time, the Court held that the doctor "should not be criminally liable for the alleged fraud, forgery, cheating and misappropriation etc. or undue favour etc."

FIR was lodged against the petitioner, a professor and head of the department of haematology of SCB Medical College & Hospital, Cuttack, on 12.12.2017 by the vigilance department based on a complaint. In the said FIR, it was alleged that the doctor had abused his official position by showing undue favour to various pharmaceutical companies. The allegations also involved violations of one "Odisha State Treatment Fund (OSTF)", which was established by the State in December 2011 for providing respite to the poor patients under the BPL category seeking treatment for fatal ailments such as cancer and chronic heart ailments.

Challenging the criminal proceedings initiated against him under section 13(2) read with 13(I)(c)(d) of the P.C. Act, 1988, along with sections 409/420/120B of the IPC, the petitioner doctor approached the High Court.

After perusing the case record, the Court noted that after registration of the instant FIR and the petitioner was released from jail custody, the Government constituted an expert team of three doctors, out of whom two are not experts in the field of treating blood cancer patients.

"Moreover, the principles of natural justice has not been followed in the said Inquiry as the petitioner and other accused persons have neither been afforded an opportunity of hearing nor has any notice been served upon them. Therefore, the said inquiry and its finding are not sustainable in the eyes of law," noted the Court.

It also opined that there should have been a preliminary inquiry in the case by an expert committee of doctors of the concerned field, especially where there were allegations involving the prescription of a particular cancer treatment drug and the matter of the treatment of poor patients. 

"More so, it should have been ensured that the committee members do not have any conflict of interest with the accused-doctor(s), and the principles of natural justice should have been followed in the said inquiry. In the instant case, the aforesaid mandatory principles as envisaged have not been followed prior to the initiation of this criminal Prosecution," the Court noted.

It was observed by the Court that the fundamental allegation in this case related to prescribing costlier medicines, i.e. "Atgam" and "Hamsyl" instead of "Thymogam" and "L-Asparaginase" to the blood cancer patients. These patients were treated under the OSTF Scheme, and upon being involved in the prescription of these drugs, it was alleged that the petitioner had violated the guidelines of the OSTF Scheme and ethical code and showed undue favours to the said Pharma companies, causing an equivalent loss to the Government. 

However, the court observed, 

"It is also the admitted position of the prosecution that none of the rules or provisions of the OSTF Scheme has been violated in this case by the petitioner or co-accused. The OSTF guideline never envisage or restrict or put any embargo to prescribe costlier medicine, especially when the same is better and necessary for the treatment. Similarly, the OSTF Guideline never envisages that cheaper medicine should be prescribed irrespective of the quality and result. None of the patients have also made any complaint against the accused-doctors regarding lack of any treatment or incompletion treatment or pressurization for purchasing the specific drug(s) in question. Similarly, there was no allegation that the drug(s) in question is/are of substandard quality or non-standard quality. Rather, the drug in question are of standard quality and produce better result as per the research study."

The Court further noted that prescribing any chemo drug or medicine to any patient is the sole prerogative and expertise of the treating doctors, and it is the ethical, moral and legal obligation of the treating doctor to prescribe the best medicine to the blood cancer patients, considering the fatal nature of the disease.

Therefore, the Court opined that a doctor should not be held criminally liable for prescribing any particular drug of any pharmaceutical company for treatment of a disease like this "unless the said drug(s) is hazardous, non-Standard or substandard quality/brand or restricted by the appropriate Authority of the Government."

"The prescription audit conducted by the Government agency has not pointed out any such illegalities during the relevant period. The Screening Committee who have scrutinized the application and bill including medical prescription have not objected to the same in any point of time. Hence, petitioner should not be criminally liable for the alleged fraud, forgery, cheating and misappropriation etc. or undue favour etc." it further observed.

At this outset, the Court also highlighted that a doctor cannot be made to face criminal Prosecution if he/she has any acquaintance with any pharma company for engaging him/herself in consultancy agreement with the said pharma company as advisor, and/or he/she attended any seminar or conference, conducted by any such pharma company, as a speaker or advisor because the said doctor has prescribed the drugs of that particular pharma company.

"Otherwise each and every doctor in the country would face criminal prosecution," noted the Court.

Further observing that the petitioner attended the seminars/conferences and training programs as a mandatory requirement for career advancement and promotion of doctors, the Court noted that "the benefit extended to him by the Emcure Pharma Company and/or Pfizer Pharma Company towards hospitalities, transportation and accommodation, cannot be treated as illegal. More so, he had attended the Conference at Minnesota, USA in the year 2013, and the alleged Drug Peg L-Asparaginase i.e. Hamsyl was produced by the Emcure Pharma Company in the year 2015, and the petitioner has also never prescribed any such drug Hamsyl of the said Emcure Pharma Company."

"In conclusion, if this sort of proceeding is encouraged, then no doctor would ever endeavor to treat any patient fairly and fearlessly as per the best treatment standards (including drugs) available. Therefore, he should not be made criminally liable on the ground of showing favour to that Company for any Offences as alleged against him," it mentioned in the order.

"Furthermore, a criminal case cannot be lodged against a Doctor, because he/she has prescribed costlier drugs or chemo injection which is beneficial and better resultant than the other available drugs. Moreover, in the instant case, other doctors of that institution/ department had also prescribed the similar drugs/ chemo injection to their patients availing benefits under the OSTF Scheme and they have been excluded from the case," it further observed.

The Court also noted that the doctor was exonerated in the departmental proceedings, and no contravention of OSTF, MCI, or any guidelines could be attributed to the petitioner.

"In fact, the Petitioner was neither found to have violated the prescription audit nor was it established that the Petitioner had endorsed the prescription of the drugs in question. In fact, the only charge which has been established against the Petitioner is with regard to the non-submission of property returns. Therefore, it appears that the competent authority, in the Departmental Proceeding initiated against the petitioner on self-same allegations, has also opined that there are no such illegalities committed by the petitioner," the Court observed.

Accordingly, the Court held that the very initiation of the criminal proceedings, without conducting a preliminary inquiry by experts was "ex-facie illegal". "Moreover, no prima facie case of the alleged offences is made out from the uncontroverted allegations narrated in the FIR against the petitioner. Furthermore, the arbitrariness, discrimination, malafide and blatant illegalities on the part of the prosecution are apparent on the face of this case. In such view of the matter, this court has no hesitation in arriving at the conclusion that the present case falls squarely within the parameters, with regard to quashing of a proceeding..." it held.

To view the order, click on the link below:

https://medicaldialogues.in/pdf_upload/orissa-hc-order-284882.pdf

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