The Delhi Court on Thursday quashed the order passed by the Trial Court on 28th October 2021 wherein the city police were asked to register a First Information Report (FIR) against a pediatric surgeon on whom medical negligence allegations were placed for the removal of a minor’s kidney. [Dr YK Sarin vs Ravinder Nath Pandey].
Facts of the case
The Respondent (Ravinder) filed a complaint on 15th April 2015 against the Petitioner and doctors of LNJP Hospital. An FIR was registered under Section 323/325/468 of the India Penal Code by the Station Head Officer. The Respondent stated that his son ‘Shivam’ was born on 20th June 2003 at LNJP Hospital and was diagnosed with a blockage in the urinary bladder. He remained under the treatment by the Petitioner, Dr. Y.K. Sarin from 2004 till 2nd August 2005. According to reports his son’s kidney was found to be normal with partial obstruction. In the year between 2004 and 2005, the scans showed that the son’s left kidney was found to be enlarged and mildly impaired. He further stated that there was no abnormality found in his son’s kidney in the Micturating Cysto Urography test conducted on 4th July 2004 rather the doctor tried to cover up his omissions and mistakes by making additions in the report dated 1st February 2005.
The Respondent’s son had to undergo various procedures and surgeries that adversely affected his health rather than bringing any improvement. Also, the junior doctors treated his son which resulted in continuous problems and endangered his son’s life. The Respondent alleged that the Petitioner on 2nd August 2008 performed a nephrectomy (removal of kidney) on his son though earlier he was informed that the kidney was functioning well and did not need to be removed. When the Respondent asked for an explanation and requested to show him the removed kidney the Petitioner threatened to discharge the child without further treatment and also abused the Respondent.
The Respondent approached the Doctors of AIIMS with his son’s medical papers where they confirmed the negligent acts and omissions committed by the Petitioner and his team of doctors but they refused to give this in writing. He further alleged that the nephrectomy was conducted without seeking his consent and that the Petitioner has fabricated documents to cover up the illegal acts. Also, during this said operation a piece of tube pipe was left inside the body which caused an infection, and the report/sheet of this was concealed from the Respondent stating that it was misplaced. The Respondent claimed that due to the Petitioner’s influence fair inquiries were not conducted by the Delhi Medical Council (DMC) and National Human Rights Commission (NHRC).
Arguments by Petitioner
The Learned Counsel for the Petitioner argued that five independent and separate inquiries were conducted by medical experts into the allegations put forth by the Respondent against the Petitioner. They concluded that there was no negligence found on the part of the said Petitioner rather all the investigations, procedures, and operation conducted on the Respondent’s son was performed as per the protocols prescribed after taking the permission of the Respondent. The Petitioner stated that the kidney removed was not preserved properly by the attending nurses and in this regard, he took action against them. He contended that the Trial Courts order to file an FIR against him on appropriate provisions is impugned and has no legal basis.
Counter Arguments
The Learned Counsel appearing on behalf of the Respondent argued that there is no illegality or error in the Trial court’s order. The Petitioner had not taken the necessary consent before the removal of his son’s left kidney rather he forged the consent form. The circumstance under which the kidney was removed, ill-preserved, and papers/sheets mysteriously misplaced from the hospital are required to be verified by special investigating skills of the Police. He further contended that the inquiry conducted was for the namesake and as per the Trial Court this cannot be taken into account as their domain of work was only limited to the procedural irregularity committed by the medical practitioners. Hence, requesting the Trial Court’s order to be upheld.
Observation by the Judge
The Additional Sessions Court based on its finding concluded that there is no substantiated proof as per the records/inquiries conducted by the medical professionals/ experts. The Ministry of Health and welfare in their inquiry stated that the Petitioner exercised a reasonable degree of commitment in treating such a difficult case of the Respondent’s son. Hence, the Trial Court wrongly observed the purpose of the said inquiry. The Court was of the opinion that the committees have comprehensively analyzed and looked into the allegations regarding the negligence. And regarding the ill preservation of the kidney and the misplacement part of records do not fall within any culpable act. The Trial Court had placed its reliance wrongly hence an FIR cannot be lodged based on unfounded and unsubstantiated assumptions.
The excerpts from the Judgement read out:
“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 Ld. Trial Court to direct the registration of FIR against the petitioner herein. Accordingly, the impugned order is not sustainable in the eyes of law and deserves to be set aside.”
Source: Bar and Bench
