Delhi HC sets ball rolling on J&J's faulty hip implant damages

Firm willing to pay RS 25 lakh only to 'revision surgery' patients, not others

The Delhi High Court (HC) on Thursday set the ball rolling on payment of compensation to victims of Johnson & Johnson’s (J&J’s) articular surface replacement (ASR) implant by asking the company to pay Rs 25 lakh for now to four patients. The Central Drugs Standard Control Organization (CDSCO) had last month asked the company to pay Rs 65 lakh, Rs 74 lakh, Rs 1 crore, and Rs 90 lakh, respectively, to the four patients.

Hearing a plea moved by J&J challenging CDSCO orders to pay the said compensation to these patients, a single-judge Bench of Justice Vibhu Bakhru on Thursday said the company must pay these four patients the money before the next date of hearing on May 29. 

During the last hearing on April 8, J&J said it was willing to pay Rs 25 lakh as compensation to those affected, but could not agree to the arbitrary amounts being imposed by the government. However, during the hearing on Thursday, J&J said the Rs 25 lakh compensation it was willing to give would be applicable only to those patients who had undergone ‘revision surgery’, and not others. “The patient is not entitled if he or she has not undergone the ‘revision surgery’”, Senior Advocate Sandeep Sethi, appearing for the company on Thursday, said. The company had identified nearly 250 such patients who had undergone the ‘revision surgery’ and would be given the compensation, Sethi said, adding it would give to the court a list of all such patients.

In its plea before the HC, J&J has also challenged a press release by the Ministry of Health & Family Welfare in which it had asked the company to pay compensation to nearly 4,000 victims of the faulty ASR hip implants. The press release issued by the health ministry was based on the recommendations of two committees formed under the chairmanship of Arun Kumar Agarwal and R K Arya. The Agarwal Committee had examined the various issues related to faulty hip implants, while the Arya Committee had determined the quantum of compensation to be given to the victims. Based on the formula, the victims were liable to receive as much as Rs 1.2 crore from J&J for the faulty implants. J&J’s plea also says that the government had no power to constitute these committees. 

On April 8, Justice Bakhru, while issuing notice to the central government, had also sought to know what procedure had been followed by the government while arriving at the formula for compensation. “The question here is of the procedure. What is the power of the committee (to frame the formula)? There was the Bhopal gas tragedy...there was a legislation to enforce the compensation. Can an executive authority do so? Where is the provision under law?” Justice Bakhru had then observed.