Negligence claims in medical care must be substantiated by competent medical opinions before FIR registration, and fundamental rights to health are protected under Articles 14 and 21 of the Constitution.

JUDGMENT :

NEENA BANSAL KRISHNA, J.

1. The aforesaid two Writ Petitions have been filed in regard to the Petitioner, Master Devarsh having suffered alleged medical negligence and injury of infantile spasm, severe epilepsy, physical disabilities and mental retardation, on account of the alleged negligence of Fortis Hospital, Shalimar Bagh and its Doctors.

2. Writ Petition (Crl.) No.1092/2019 filed on behalf of the Petitioner, Master Devarsh seeks directions for proper investigations and action against the erring Doctors.

3. W.P. (Crl.) 3537/2019 has been filed by the Petitioners, Dr. Ritu Verma, Dr. Akhilesh Singh, Dr. Vivek Jain seeking quashing of the FIR No.0480/2019 dated 01.10.2019 under Section 336 /337 of the Indian Penal Code, 1860 (hereinafter referred to as “ IPC ”) P.S. Shalimar Bagh registered against them and is pending investigations.

4. The brief facts are that Master Devarsh was delivered on 12.08.2017 at Fortis Hospital, Shalimar Bagh. At the time of C-Section delivery, the child suffered severe Asphysia (hypoxic injury), leading to complete damage of the brain of the new born child.

5. The child was kept in Neonatal ICU for 11 days and was thereafter, discharged by the Hospital vide Discharge Summary which indicated “Baby has no neurological concern throughout stay”.

6. In the Petition filed on behalf of Master Devarsh, it was asserted that there was absolute lack of coordination and due diligence in handling the delivery of the child by the concerned Doctors and staff of the Hospital, leading to the hypoxic injury about which the parents of the child were kept in complete dark and the child was handed over to them as a fit and normal baby. Immediately after discharge, the parents found the child suffering from some jerks. They took the child to the Consulting Doctor, who advised them to ignore the jerks.

7. It was claimed that from his birth on 12.08.2017 till March, 2018 i.e. for about 8 months, the child was speechless, he kept writhing in unbearable pain in his head, but there was no clue to the parents that he had undergone brain haemorrhage at the time of birth. Eventually, the child started missing the desired milestones and his body started getting more and more stiff.

8. The parents took the child once again to the Doctor, who then finally declared after a lapse of significant time which was crucial for the normal growth of the child, that he is a special needs child and needs to be shown to a Neurological Paediatrician for further treatment.

9. The EEG and MRI of the child was conducted and it was revealed that he was suffering from rare disease called “West Syndrome” caused due to severe damage in the brain. It was then unravelled that the child suffered the Brain Haemorrhage due to asphyxia, at the time of birth. He is dependent upon painful and harsh Occupational Therapies and is surviving on bitter in pungent medicines including steroids.

10. A Criminal Complaint was made to the Police under Section 308 , 325, 338, 193, 201, 406, 420, 471, 120-B, 34 IPC against Fortis Hospital, its Management and the Doctors for causing grave injury to the brain of the child and keeping it concealed from the parents. No action was taken by the Police. Eventually, a Complaint along with an Application under Section 156 (3) Cr.P.C was filed before the learned M.M. Rohini Courts. However, despite efforts, no fruitful action has been taken.

11. It is further asserted that a Complaint was made to DGHS (Director Genera