A MATTER OF PRINCIPLE

CASE ANALYSIS

Legal
HR
Practise Medical
s
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 employees 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)
2)
3)
4)

She received demotion and reduction in job duties

Was transferred
Badgered
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/ca1/05-1278/05-127801a-2011-02-25.html)*

Q2) Should the pharmaceuticals 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

Scenario
2

Hippocrat
es Oath

Legal
Obligatio
ns

Saccarin

Possible
Carcinog
en

At-Will
employe
e

Clinical
Trials

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 people1
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 mices 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

111 (1995) CPJ 1 (SC); 1995 (3) CPR 412:1995 (6) SCALE 273:1996 CCJ 1
(SC)
2

3
4

Poonam Verma v. Ashwin Patel, (1996) 4 SCC 332 at p. 348, para 42.
See, Roe v. Ministry of Health, (1954) 2 All ER 131

Details:
Faraz Zeeshan
IMT Ghaziabad
8553388981