Cuttack: Orissa high court has ruled that a doctor should not be held criminally liable for prescribing a particular drug of any pharmaceutical company for treatment of a disease like cancer, unless it is “hazardous, or substandard quality/brand or restricted by the appropriate authority of the govt”.
“For that reason, if the pharma company is benefited, the same cannot be treated as an undue favour or loss to the govt exchequer,” the bench of Justice Aditya Kumar Mohapatra further ruled, while quashing criminal proceedings pending against Dr Rabindra Kumar Jena before the special judge (vigilance), Cuttack.
“If this sort of proceeding is encouraged, then no doctor would ever endeavour to treat any patient fairly and fearlessly as per the best treatment standards (including drugs) available,” Justice Mohapatra observed.
Dr Jena was professor and head of department of haematology of SCB Medical College & Hospital, Cuttack from 2013 to 2017. State vigilance had registered a case against him on the basis of an FIR lodged by S K Samal, DSP of vigilance cell, Cuttack, on Dec 12, 2017.
It was alleged that Jena had abused his official position by showing undue favour to various pharmaceutical companies. The allegations also involved violation of the Odisha State Treatment Fund (OSTF) which was established by the state govt for providing respite to poor patients seeking treatment for terminal diseases like cancer and chronic heart ailments. Instead of prescribing a cheaper drug, he had also allegedly compelled/pressurised patients to purchase more expensive chemotherapy drugs/injection. Dr Jena filed a petition in HC challenging the criminal proceedings in 2024.
Justice Mohapatra said the OSTF guidelines never envisage or restrict or put any embargo to prescribe costlier medicine, especially when the same is better and necessary for treatment. Guidelines also never envisage that cheaper medicine should be prescribed irrespective of the quality and result. The screening committee which has scrutinised the application and bill, including medical prescription, have not objected to it at any point of time, the bench said.
“In view of the foregoing reasons, the very initiation of instant criminal proceedings, without conducting a preliminary inquiry by experts of the concerned field, as observed above, is found to be 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 and blatant illegalities on the part of the prosecution are apparent on the face of this case,” Justice Mohapatra observed in his April 16 order.
“In such a 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, laid down by the Supreme Court. Hence, allowing the further continuance of the present criminal prosecution would most definitely amount to an abuse of process of law,” he further observed.
