New Delhi: An experts’ panel working on a formula to compensate Indian patients affected by Johnson and Johnson’s (J&J) faulty hip implants has recommended an additional 10 lakh for “non-pecuniary" losses, two people aware of the matter said. This is over and above the 33 lakh- 1.2 crore that the panel has already proposed to compensate for disability. The formula is now before the health ministry. The panel decided to enhance compensation for damages that cannot be quantified or valued in money, such as for pain and suffering.

“The experts felt that the claimant affected due to the faulty implant not only compensated for his physical injury but also for the non-pecuniary losses," said one of the people cited above.

The experts have recommended the use of the Indian Disability Evaluation and Assessment Scale (IDEAS) for the assessment and certification of disability in patients. Therefore, in case the disability is on the higher scale (40-45%) and the person underwent surgery at a young age, the quantum of compensation will go up.

“The compensation will keep up with the cost of living in the future, mental agony etc. So, if the person underwent a surgery when he/she was 60 years or above and the disability is measured at the scale of 10%, he/she will be entitled to get a minimum of 33 lakh," the second person said.

In 2017, the government had formed a panel headed by Dr. Arun Agarwal, former dean of Maulana Azad Medical College, which suggested at least 20 lakh compensation for each patient. Viewing that revision surgeries were necessitated due to the “faulty ASR", the committee report had recommended that J&J be made liable to pay “adequate" compensation “commensurate with severity of the pain, the resultant disability, sufferings (both mental and physical) and with loss of wages of each patient who received Acetabular Surface Replacement (ASR)".

At present, there are no legal provisions to provide compensation to patients in such cases. The government action followed a Mint report on 23 August highlighting concerns over metal-on-metal Acetabular Surface Replacement hip implants.

In September, the government formed another experts’ committee, and asked states to form separate committees to determine the quantum of compensation. The hip implant case began in 2011, with patients undergoing corrective surgery after being fitted with implants sold by a subsidiary of J&J. More than 100 people fitted with J&J faulty hip implant have approached the committee for compensation.

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J&J has been criticised for failing to pay any compensation in India, although it had agreed to pay $2.5 billion to around 8,000 US citizens who sued the company after receiving the faulty hip implants.

Around 4,700 ASR surgeries were carried out in India during 2004-10. However, only 1,080 patients could be traced through the company’s ASR helpline.

On 2 November, the Indian unit of J&J announced that it will initiate a new India-specific reimbursement programme. The programme proposes to support patients who have been implanted with ASR hip implant from June 2004 to August 2010 and provide reimbursement if the revision surgery and the tests have taken place within 15 years from the date of the primary hip replacement surgery.

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