MEDICAL NEGLIGENCE IN LIGHT OF COUNTERFEIT DRUGS AMID COVID-19 SURGE

Introduction

When it comes to a patient, ‘Medical Negligence’ is a major element. Bharat, a country that revered and worshipped medical practitioners as ‘Gods’ or divinities, is today in a state of uncertainty. The major reason for this is an increase in the number of cases of medical negligence that have occurred recently. Medical malpractice has become one of the country’s most serious issues in recent decades. It has been demonstrated that the medical profession, although being one of the noblest, is not immune to neglect, which regularly results in fatalities or entire or partial limb damage, or leads to increased patient agony.

Medical Negligence not only includes the breach of legal duty but also incorporates the act with an intention to deceive the person to whom you are liable. This means that an act of engagement is responsible if it fails to meet the legal standard demanded of a reasonable person in safeguarding persons from dangerous or detrimental activities that are foreseeable. The Hon’ble Supreme Court in “Jacob Mathew V. State of Punjab” defined term negligence as “actionable negligence consists in the neglect of the use of ordinary care or skill towards a person to whom the defendant owes the duty of observing ordinary care and skill.      \

The main purpose of this article is to apprise you about medical negligence in respect of counterfeit drugs.  It will intensify upon the correspondence of counterfeiting drugs and the impact of COVID 19 on the aspect of medical negligence.

The problem of counterfeit drugs is not new for India. The issue pertaining to fake medicine was emerged in 1980s when the member states of WHO reported large number of transgressions of counterfeit medicine.

DEFINITION OF COUNTERFEIT DRUGS

The definition of counterfeit drugs varies from region to region. The Black’s Law Dictionary defines counterfeit drugs as the “medicines manufactured by someone other than the legitimate manufacturer, by duplicating or replicating an original product without authority or right, with a view to deceive or defraud, and then promoting the duplicated or forged medicine as the original”

IMPACT OF COVID-19 ON COUNTERFEITING DRUGS

The global cry for COVID-19 vaccines has given a new marketplace for these manufacturers. Around the time of December 2020, INTERPOL issued an orange notice outlining the criminal activity. Criminals took advantage of the unprecedented opportunity to violate public tranquility by advertising illegal COVID-19 and flu vaccines. It issued a global alert to its 194 members countries and asked them to prepare for organised crime activities targeting the COVID-19 vaccine. It specifically alerted the law enforcement agencies of these nations[1].

Due to COVID-19 outbreak, people were administering fake medicines and they were not able to cross-check the medicine because of immediate need. With the growing panic, the sale of counterfeit drugs has also been surged in the market. The CBI warned all states and Union Territories to be vigilant as the threat of fake PPE kits and hand sanitizer mixed with methanol is widely circulated across the country. WHO reported a global shortage of PPE kits in March 2020.

FACTORS LIABLE TO ACCELERATE THE GROWTH OF COUNTERFEITING DRUGS

 The most common factor that proliferate the counterfeiting drugs is greed for money, corruption and illegal drug importation. Availability of the modern and sophisticated technology increases the cost of drugs which hampers the demand as people opt to buy cheaper drugs ignoring the quality of the same. Unorganised drug distribution network involving so many intermediaries, inefficient cooperation between drug regulatory authorities and stakeholders and non-involvement of the professionals in pharmaceutical business also open up the path for counterfeiting drugs.

INITIATIVE TAKEN TO PROTECT THE RIGHT TO HEALTH

 Right to health as enshrined as an integral part of the right to dignified life under Article 21, has been continuously recognized by the Apex Court in various landmark judgments, ranging from ‘Paramanand Katara v. Union of India[2]’ to ‘State of Punjab v. Mohinder Singh Chawla[3]’ and so on. Ipso facto, it therefore constitutionally obliges the Government to provide timely medical assistance and health facilities in protection of Article 21[4]. Not only as a fundamental right, but the right to health entrusts a multifaceted obligation upon the State to provide medical services and proper healthcare infrastructure with genuine and generic drugs, under the Directive Principles of State Policy[5].

PREVENTIVE MEASURE TO DETER THE GROWTH OF SUBSTANDARD COUNTERFEIT DRUGS

To scrutinize the complications of the counterfeit, substandard and bogus drugs, the government of India has acquired few initiatives, they are as follows-

CONCLUSION AND SUGGESTIONS

Drug counterfeiting has evolved as a global distress. There is no government that can prevent counterfeit medicines from entering its pharmaceutical hub. At the same time, the COVID-19 has sparked a previously unseen global market for the trafficking of personal protective equipment (PPE) and other types of poor and falsified medical products that are significantly being used in the treatment of COVID patients. Such acts are a true example of medical negligence with malafide intention which results in chronic illness and thereby increasing the rate of mortality. 

At the time of crisis, government and pharmaceutical industries should go hand in hand to fight the sham pharmaceutical business. Government should take necessary and effective steps to incorporate the genuine and generic medicine into the streamline of medical infrastructure. The distribution channel for medicines across the globe should be upgraded with latest technological instruments such as hidden identification marks, Bar-code, Holograms, and Radio Frequency Identification (RFID) tags and chips so that the perpetrator will not be able to breach the secured supply chain.

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[1] INTERPOL, “Interpol warns of organised crime threat to COVID-19 Vaccines” Dec 2, 2020 available at https://www.interpol.int/en/News-and-Events/News/2020/INTERPOL-warns-of-organized-crime-threat-to-COVID-19-vaccines (Last visited on June 4, 2021).

[2] AIR 1989 SC 2039.

[3] (1997) 2 SCC 83.

[4] Paschim Banga Khet Mazdoor Samity v. State of West Bengal AIR 1996 SC 2426 at para 9.

[5] State of Punjab v. Ram Lubhaya Bagga (1998) 4 SCC 117.

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(LEGAL DEPARTMENT)

Adv. HIMANSHU ANAND