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Bombay HC: Doctors not responsible for Medical Negligence if Drugs not administered due to Unavailability

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Medical Negligence Law Insider

Medical Negligence Law Insider

Deepali Kalia

Bombay High Court stated that doctors should not be held responsible for not administering COVID 19 drugs to patients if the medicines are unavailable due to their scarcity.

“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 complaints of medical negligence? There has to be a balance.”  A Division Bench of Chief Justice Dipankar Dutta and Justice Kulkarni said while hearing a bunch of PILs related to COVID management in the state.

“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.” The bench observed.

It was noted by the bench that doctors cannot be harassed because a particular drug could not be administered due to its unavailability but also clarified that it would not get in the way of genuine complaints.

“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
Instead of FIRs being promptly registered, a preliminary inquiry should be done as unnecessary prosecution will demoralize the doctors, the Bench noted.

Dr Rajeev Joshi, a member of the Indian Medical Association demanded the Bench to pass an order and clarify that doctors should not be taken to task and held responsible for the inefficiency of the government in supplying the essential medicines. He stated that, “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.”

“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 further added.

The patient’s treatment protocol and what drug is needed at a particular time should be left to the doctors to decide, the Bench remarked.

Dr Joshi informed the court that patients who do not respond to Dexamethasone usually react to Tocilizumab i.e where Dexamethasone doesn’t help then Tocilizumab, whose supply is scarce, is prescribed.

To the Court’s question of whether an alternative to Tocilizumab is available, Dr Joshi replied in negative and stated that as a final resort to save a patient’s life; other anti-inflammatory drugs are given as a trial and error. 

The Bench also asked both State and Centre “to put their heads together” and work on the issue of Tocilizumab’s scarcity.“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