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Case Nandini Shamra

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A MATTER OF PRINCIPLE * Case analysis

Perspective of the case

Q1) Was Nandini Sharma forced to resign or did she resign voluntarily? To understand the resignation either coerced indirectly by the pharma company or she resigned voluntarily needs understanding of Constructive discharge doctrine i.e “employee’s decision to quit due to un-endurable environment is assimilated to a formal discharge for remedial purposes” [1]
At will contract: The definition of at-will employee is “At-will employment is a legal presumption in all U.S. states whereby either an employer or an employee may, with no adverse legal consequences, terminate the employment relationship for any legal or no reason.[2]
Exceptions being 1) Violates Public Policy 2) Whistle blower 3) Hostile work environment
As presented in the facts of the case, the Nandini Sharma was subjected to violation of public policy and her dismissal stood Constructive Discharge as 1) She received demotion and reduction in job duties 2) Was transferred 3) Badgered 4) Humiliated by claiming un-promotable, uncooperative and unproductive
These conditions satisfy to claim “sufficiently intolerable’ environment at the Pharma co.
This can be further understood by the case
The First Circuit, in Vieques Air Link, Inc. v. U.S. Department of Labor*, It was found work conditions were tweaked for a pilot who blew the whistle to Federal Aviation Administration and the company. The employee was transferred and was asked to comply with work conditions which were unbearable mentally and financially. The court ruled in favor of the employee.
Extrapolating this lawsuit to our case scenarios Nandini Sharma was subjected to constructive discharge and the conditions were sufficiently intolerable.
*(http://law.justia.com/cases/federal/appellate-courts/ca1/05-1278/05-1278-01a-2011-02-25.html)*

Q2) Should the pharmaceutical’s management have the right to terminate Nandini Sharma if she refused to participate in the clinical testing?
Under the At-will employment the company has every right to terminate her as the contract states, employer or the employee has right to end the contract without notice.
Catch 22
Scenario 1: If Nandini Sharma had not citied the Hippocratic oath as the reason for her participation in the termination would have been valid.
Scenario 2: Since Nandini Sharma has quoted Hippocratic oath as her precursor for non-participation in clinical research. This needs to understood in the greater depths

Scenario 2

Hippocrates Law
The practice of medical profession is of great service to the humanity. The Latin translation of word doctor stands ‘docere’ which is means ‘Teach’. The rationale behind such idea was physicians are considered as teachers who guide their patients on how to live and maintain their health and prevent diseased.
According to the Merriam-Webster definition of Doctor “A person who is skilled in science of medicine: a person who is trained and licensed to treat sick and injured people”1
Doctors in this very country are regarded as visible gods. They give life to the patients suffering from varying ailments. Trust and confidence is what patients bear in their mind when they approach doctor, assuming he is capable enough to give them the remedies for their ailments. This implies the doctor have inherent responsibility towards the patients to provide them with best care possible under them. The negligence of the doctor is inexcusable, as the patients are protected by Consumer Protect Act, 1986.
In the interest of people, Supreme Court of India in Indian Medical Association v. V.P Shantha2 accounted medical profession within the meaning of service under the consumer law.
The apex bench presiding over the medical negligence case with respect to the treatment of patient observed that “negligence has many manifestations—it may be active negligence, collateral negligence, comparative negligence, concurrent negligence, continued negligence, criminal negligence, gross negligence, hazardous negligence, active and passive negligence, willful or reckless negligence or negligence per se.”3 The elaborate understating of above is medical professional is expected strictly to adhere to the guidelines and standards laid of an ordinary skilled man practicing and professing to have that special skill and it would be a disservice to the community at large if we were to impose liability on hospitals and doctors for everything that happens to go wrong.4

Under the legal obligations, Nandini Sharma cannot be willful negligent.

Saccharin: Possible carcinogen?
Saccharin is an artificial sweetener is also know as SACCHARIN SODIUM having an empirical formula as C7 H4NNaO3S. 2H2 O and molecular weight as 241.2. It is coupled with Loperamide for acute diarrhea.

Tid-bit:Currently Loperamide is banned in India for pediatric usage. (http://www.rajswasthya.nic.in/BannedDrugs.htm)

Saccharin is found to be carcinogen according to the Artificial sweeteners—do they bear a carcinogenic risk? Published in Annals of Oncology, Volume 15, Issue 10 ( http://annonc.oxfordjournals.org/content/15/10/1460.abstract)
The research showed the mice’s exhibited bladder cancer than compared to the ones which were not fed with the saccharin.

Clinical Trials: India
Clinical trials are extensive in India, given the cheap cost of testing new drugs, we find the handful of experts and the Pharma cos colluding to perform clinical trials.
Supreme court had formed expert committee to lay the guidelines on the Clinical Trials.
Chairman of the expert committee Professor Ranjit Roy Chaudary, National Professor of Pharmacology, prepare extensive report on the guidelines listing out procedure for new drugs and clinical trials for India. (http://www.indiaenvironmentportal.org.in/files/file/clinical%20trials1.pdf)
The guidelines have duly procedure to report any adverse effect to the authority which is mandatorily to be followed for every drug trial.

Public Policy Violation:
Due to the standing order of the committee, the usage of high volume of saccharin can adversely affect health of the patient, no laws to regulate is as per the case, but causing intentional harm under the Hippocratic oath, and willful negligence, also not to follow the guidelines laid by Roy Committee which was enforced by Supreme Court is clear case of public policy violation.

Hence the Pharmaceutical Company under the second scenario cannot terminate Nandini Sharma .

Q3) Solution: Given the facts in favor of the Nandini Sharma, she can claim reinstatement of her job under the constructive dismissal and public policy violation.

Q4) Solution: 1) Establishing the facts- as a judged I would have ordered the expert committee to be formed to study the effects of the Saccharin as the carcinogen. 2) Reinstatement- I would reinstate Nandini Sharma on the grounds of whistle blowing, Public policy violation and 3) Penalize the Pharma Co for not adhering to the standards laid for the clinical testing. 4) Direct the Pharma co to look into the alternative medicine for the loperamide. 5)

References:
1 http://www.merriam-webster.com/dictionary/doctor
2111 (1995) CPJ 1 (SC); 1995 (3) CPR 412:1995 (6) SCALE 273:1996 CCJ 1 (SC)
3 Poonam Verma v. Ashwin Patel, (1996) 4 SCC 332 at p. 348, para 42. 4 See, Roe v. Ministry of Health, (1954) 2 All ER 131…...

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