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FIR cannot be lodged on the whims and fancies of the complainant patient : Delhi Court

New Delhi : Delhi Session court set aside an order of the Magistrate Court directing the registration of an FIR against a city-based pediatric surgeon in a case accusing him of removing a two-year-old boy’s kidney during nephrectomy, alleging criminal medical negligence.”The ill preservation of a removed kidney of the son of the complainant and misplacement of part of his treatment record does not fall within the ambit of any culpable act. The same can at the most be a case of civil negligence, for which FIR cannot be directed to be lodged,” Additional Sessions Judge Dheeraj Mor said in an order while setting aside an order passed by the Metropolitan Magistrate.The order stated that “an FIR cannot be lodged on the whims and fancies of the complainant guided by unfounded and unsubstantiated assumptions only to satisfy his discontentment with the treatment of his child.”

As per the complainant, his son underwent a nephrectomy when he was 2 years old and his left kidney was removed by Dr YK Sarin and his team.The allegation put up was that the kidney so removed, was functional and by removing it, criminal medical negligence was committed. In 2021, on the direction of Metropolitan Magistrate Rishabh Kapoor, an FIR was filed.

Adv Namit Saxena, who appeared for the suspect Dr YK Sarin, argued that there were 5 enquiries conducted at various levels including Delhi Medical Council, NHRC and Director General of Health Sciences, and in all enquiries, a clean chit was given to the doctor who is an extremely reputed medical professional in the field.Saxena further argued that in view of the ratio laid down by the Apex Court in Jacob Matthew’s case, the Ld. 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.