Delhi Court Comes to the rescue of Paediatric Surgeon accused of removing infant's kidney, quashes FIR
No Medical Negligence
New Delhi: A Delhi court has set aside an order passed by the Metropolitan Magistrate directing the registration of FIR against a paediatric surgeon in a case accusing him of removing a two-year-old boy's kidney during nephrectomy in 2005, alleging criminal medical negligence.
The complainant had alleged that Dr Sarin, who is the head of the department of Paediatric Surgery at Lok Nayak Hospital, with his team, removed the left kidney of the complainant's son while he was undergoing nephrectomy.
While considering the matter, the Delhi Court has held that an FIR cannot be lodged as per the whims and fancies of the complainant guided by unfounded and unsubstantiated assumptions.
“There is not even an iota of incriminating material against the petitioner on record in the form of a report of a competent doctor or committee of doctors, specialised in the field relating to which the medical negligence is attributed. In absence of the said pre-requisite prima facie opinion of a medical expert, the direction for registration of FIR against the petitioner defies the guidelines and principles laid down by the Hon’ble Superior Courts,” read the February 9 order of additional sessions judge Dheeraj Mor.
Such an observation was made by the court while considering the revision petition filed by Dr Sarin, who had challenged an order of a magesterial court directing the station house officer of IP Estate police station for registering an FIR against the doctors of Lok Nayak Hospital, including Sarin.
Filing a complaint in this regard, the complainant Ravinder Nath Dubey had alleged that his son underwent nephrectomy at the age of 2 years and his left kidney had been removed by Dr Sarin and his team.
In 2021, Metropolitan Magistrate (MM) Rishabh Kapoor had directed that an FIR be registered after considering the allegation that at the time the kidney was removed, it was functional, adds IANS.
Appearing for the accused (Dr. Sarin) in the revision petition filed before Additional District Judge Dheeraj Mor of a Tiz Hazari court, advocate Namit Saxena argued that there were five enquiries conducted at various levels, including Delhi Medical Council, National Human Rights Commission and Director General of Health Sciences.
"In all enquiries, a clean chit was given to Dr. Sarin, who is an extremely reputed medical professional in the field," Saxena said.
He further argued that in view of the ratio laid down by the Supreme Court in Jacob Matthew's case, the MM ought not to have replaced his opinion on the opinion of all expert medical boards and in absence of any independent medical enquiry, FIR cannot be directed to be registered.
On November 25, 2021, the Additional District Court had stayed the direction to register FIR against the said doctor.
After hearing the parties at length, Judge Mor set aside the order passed by the MM and held that FIR cannot be directed to be registered.
The Times of India adds that the Delhi Court observed, “There is no justifiable reason to assume that the petitioner committed any offence into the allegations made by the complainant herein. Therefore, there was no occasion for the learned trial court to direct the registration of FIR against the petitioner herein. Accordingly, the impugned order is not sustainable in the eyes of law.”
Five independent and separate inquiries had been conducted by medical professionals or experts while considering the allegations and in every inquiry, the medical experts categorically denied any negligence, adds the daily.
