By Prof. Raphael Nyarkotey Obu & Daniel Sackey
Medical Negligence: Medical Records as Patient’s Weapon?
In a recent news by kasapafmonline.com, the Accra High Court orders the Chief of Defence Staff, (CDS) and the 37 Military Hospital to release an investigation report conducted on the circumstances leading to the death of a 48-year-old man, Solomon Asare – Kumah to his family within 10 days.
The order culminated from an action of medical negligence which was commenced in 2019 by the family of Solomon Asare-Kumah (the deceased) against the Hospital, a medical doctor- Col/Dr. G. A. O. Appiah, the CDS, and Attorney General. The family is demanding GHc2 million in damages for alleged medical negligence that led to the death of the deceased. Prior to the suit, the family had petitioned the CDS to conduct an inquiry into the circumstances surrounding their relative’s death but after the investigation, the report was not made available to them.
After suing the hospital for damages in the sum of GHc2 million and pending the determination of the substantive matter, the family through Emmanuel Asare-Kumah, filed an application for an order for Discovery on October 21, 2022.
In this article, we will examine the legal question as to whether patients have the right to disclosure of their medical records in the case of medical negligence civil litigation and we will also interrogate the legal basis of discovery in medical negligence civil litigation. We would finally look at the medical records of the patient as a weapon for the plaintiff.
Medical Records as a Plaintiff’s Weapon
Medical records are used to track events and transactions between patients and healthcare providers. They offer information on diagnoses, procedures, lab tests, and other services. Medical records help us measure and analyze trends in healthcare use, patient characteristics, and quality of care.
Indeed, medical records are patients’ strong weapon in medical negligence litigation. This is because, to be able to get legal advice from the lawyer, the lawyer’s first task is to review the medical records. Also don’t forget that medical negligence and malpractice litigation is built around the medical record, which provides the only objective record of the patient’s condition and the care provided.
For the lawyer, the medical records will help to establish specific acts of negligence and the overall quality of the record. Good and strong medical litigation lawsuits are cemented on well-documented, specific acts of negligence. In most cases, however, negligence is inferred from documented and undocumented events. If the patient’s case depends at least partially on assuming that certain events were not recorded, the lawyer must be able to cast doubt on the credibility of the record.
Medical records are also the weapon for a physician’s defense. The patient has injuries to show the court; the physician or other medical care practitioner has only the medical records to prove that the injuries were not due to negligence. If the record is incomplete, illegible, or incompetently kept, this is the health care practitioner’s failure. Although courts and juries usually give a defendant the benefit of the doubt on ambiguous matters, this does not extend to ambiguities created by incompetent recordkeeping.
The least credible records are those that are internally inconsistent—for example, the physician’s progress notes report that the patient was doing well and improving steadily, but the nurses’ records indicate that the patient had developed a high fever and appeared to have a major infection. More commonly, the credibility of the records is attacked by demonstrating that it is incomplete. If it is clear that medically important information is missing from the record, then it is easier to convince a jury that the missing information supports the patient’s claims. They are also the basis of expert opinion that will determine the outcome of the litigation.
Discovery: The Essence in Civil Litigation
In civil litigation, discovery is the process whereby a party to an action is obliged to disclose to the other party the existence of all documents which are or have been in his possession, custody, or power which are material to the issues in the action.
In law, ‘Documents’ is not restricted to paper writings, but extends to anything upon which evidence or information is recorded. Thus, tape recordings (whether audio or video) and computer disks are disclosable. Documents to be disclosed are those which relate to the matters in question in action. However, the scope of discovery is thus very wide.
A case law, Companies Financiere v Peravian Guano Co. (1882) 11 QBD 55, established that documents to be disclosed are those that relate to the subject matter and further went to include those that can indirectly enhance the party (requiring discovery) either to advance his case or to damage that of his opponent.
Hence, in the case of alleged medical negligence, medical records and any other medical information that tend to help the plaintiff requiring discovery to either advance his case or damage the case of the defendant (ie. the hospital) is important to that plaintiff. Hence, the plaintiff can apply to the court for notice to produce to enable the hospital to disclose those medical-related documents. Also, these medical-related records are important to the defendant-the hospital. In Ghana for instance, any party may apply at the stage of application of directions for such discovery as is necessary and the court may order the respondent to serve a list of documents in his or her custody or possession on the applicant. The court may order discovery even after the application for direction stage if reasonable cause is shown. Under Order 21 r 6 of the Ghanaian High Court Civil Procedure Rules (CI 47), the court will only order discovery when satisfy that the discovery is necessary to dispose fairly of the cause or matter and will save costs.
Disclosure, not Sacrosant
However, disclosure of these documents is not sacrosanct. This is because some documents are privileged from production and inspection. For instance, documents protected by legal professional privilege; documents tending to incriminate the person making the disclosure, and documents privileged on the grounds of public policy. For instance, in the Gambia, Section 127(1) (d) of the 1997 Constitution excludes documents from discovery on the grounds of prejudice to National Security.
However, when the court gives such an order for discovery and a party fails to comply with an order for the discovery of documents or to produce any document or record for purposes of inspection or fails to comply with the rules, the court may make such orders as it thinks just, including the following: the action may be dismissed, the defence may be struck out and judgment entered accordingly, where the document is favourable to the defaulting party’s case, the party may not use the document at the trial, except with the leave of court or where the document is not favourable to the party’s case, the party may be committed for contempt.
Disclosure: Right to obtain
The court may order any party to the suit to make a discovery on oath of the documents, which are or have been in his possession or power, relating to any matter in question in the suit per the rules of the court. The party is also permitted to inspect these medical documents.
In the notice to produce, in the Gambia for instance, there is no time stated to produce. However, case law, Dwyer v Collins (1852) Exch 639, explained that a reasonable time should be given. In this case, the Accra High Court orders the Chief of Defence Staff, (CDS) and the 37 Military Hospital to release the documents within 10 days.
The Plaintiff’s Case for Disclosure
In this case, the plaintiff sought; “an order directed at the 2nd Defendant (CDS) to furnish plaintiff with the final Report of the Board of Inquiry held in respect of the death of Solomon Asare-Kumah and allegations of extortion against the 4th Defendant.”
Secondly, “an order directed at the 3rd Defendant to furnish Plaintiff with the full and complete medical record of Solomon Asare-Kumah (deceased)”.
The Defendants relied on Privileged
But responding to the application in an affidavit to the request deposed to by Justice Oteng, a Legal Officer at the Department of Legal Services, Ghana Armed Forces, General Headquarters, on the authority of the 1st to 3rd Defendants/Respondents opposed to the request and said the report is exclusively for internal use.
“..The 2nd Respondent is vehemently opposed to the request by the Applicant for the Report/Record of the Board of inquiry,” the affidavit in opposition stated.
It contends that “the Report of the Board of Inquiry is a restricted document meant for the exclusive internal use of the Ghana Armed Forces.”
The defense further contended that the said report is exclusively for internal use. It further stated that “the Report of the Board of Inquiry conducted under the auspices of the Ghana Armed Forces is privileged and same cannot be disclosed to the Public even in legal proceedings.
“That per with the Armed Forces Regulations [Administration] Volume 1 (AFR Vol. 1) (C.I 12), applications for the release of record or report of a Board of an Inquiry requires the express instructions of the 2nd Defendant herein.
“That pursuant to the AFR. Vol 1, the 2nd Defendant stated that the Report of the Board of Inquiry as requested by the Applicant is confidential and same cannot be released.
It further contended that “that the discovery of the Report of the Board of Inquiry as prayed is not necessary for a fair and effectual disposal of the instant action and will rather prejudice the trial.”
It stated further that, “the Applicant has not shown any reasonable cause for the discovery of the report of the Board of Inquiry,” and “that the 3rd Respondent is however not opposed to Plaintiff/Applicant’s request for the disclosure of the medical records of the deceased in its custody.”
The Judge thinks the Patient’s Fundamental Human Right is Paramount
For a comprehensive analysis, we will at this point reproduce excerpts of the ruling of the discovery application which forms the crux of this article.
Justice Charles Ekow Baiden in his ruling stated as follows:
“I take judicial notice and it is so proven that on or around January 2023 a summary report of the Board of Inquiry into the alleged missing baby at the 3rd Defendant/Respondent hospital maternity unit, which the Board of Inquiry was convened by the 3rd Defendant/Respondent was disclosed to an aggrieved couple in that matter. In so doing, I am minded that judicial notice can be taken of facts that are so capable of accurate and ready determination by resorting to sources whose accuracy cannot reasonably be questioned, as provided for pursuant to Section 9(1) of NRCD 323. According to Brobbey JSC., (as he then was), the learned author of ESSENTIALS OF THE GHANA LAW OF EVIDENCE, “I…J judicial notice is not just a form of evidence. It is a form of proof.” (Emphasis added).
After lengthy experiments with military regimes, we the people of Ghana began a new path towards constitutional supremacy in 1992.
The 1992 Constitution we adopted for ourselves embodied principles of accountability and the protection and preservation of fundamental human rights and freedoms.
To achieve these solemn goals, the 1992 Constitution vested final judicial power in the Judiciary. Article 125(3) of the 1992
Constitution provides that: “The judicial power of Ghana shall be vested in the Judiciary, accordingly, neither the President nor Parliament nor any organ or agency of the President or Parliament shall have or be given final judicial power.” (Emphasis added).
In furtherance of this, Article 140(1) of the 1992 Constitution vested the High Court with jurisdiction in all matters and in particular, in civil and criminal matters and such
original, appellate, and other jurisdiction as conferred by the Constitution or any other law. The combined effect of Articles 33(1) and 140(2) of the 1992 Constitution is that
this Court has the responsibility to protect and preserve the natural and inalienable rights fundamental to the well-being of all persons.
Article 12(1) of the 1992 Constitution provides that: ”The fundamental human rights and freedoms enshrined in this Chapter shall be respected and upheld by the Executive, Legislature and the Judiciary and all other organs of government and its agencies and, where applicable by all natural and legal persons in Ghana, and shall be enforceable by the Courts as provided for in this Constitution.” (Emphasis added).
He further reasoned that the principles of accountability enshrined in the Preamble, Articles 23 and 296 of the 1992 Constitution frowns upon the unbridled exercise of such wide discretionary power contained in Article 21.17.1 of AFR (Volume 1) C.I 12 which purports to oust the jurisdiction of the court.
Even if, the 1st to 3rd Defendants/Respondents have the discretion to not disclose a Board of Inquiry Report to the Plaintiff/ Applicant, such discretion must be exercised fairly, reasonably, and not arbitrarily or in a biased manner.
He also referred to Article 17 of the 1992 Constitution that which abhors discrimination against persons such as the Plaintiff/Applicant herein. Article 17(3) provides that: “For the purposes of this article, “discriminate” means to give different treatment to different persons attributable only or mainly to their respective descriptions by race, place of origin, political opinions, colour, gender, occupation, religion or creed, whereby persons of one description are subjected to disabilities or restrictions to which persons of another description are not made subject or are granted privileges or disadvantages which are not granted to persons of another description.”
It has not been demonstrated to this Court that there is reasonable justification for treating the Plaintiff/Applicant differently from the manner the couple in Exhibit “D’ and “E” has been treated.
I find that the Plaintiff/Applicant alleges negligence in tort, breach of contract, misrepresentation, and undue influence.
The Defendants/Respondents have denied the existence of a contract. If so, the Defendants/Respondents must be made to subiect this dispute to the ordinary rules of negligence in tort, contract, and the remedies available to a party who alleges violation.
In so far as the Defendants/Respondents engage in commercial transactions, they must necessarily abide by the rules of engagement including good faith obligations and the duty of care, among others.
The 1st to 3rd Defendants/Respondents ought not to be allowed to seek refuge elsewhere.
For all the above reasons, “I am of the firm view that the Plaintiff/Applicant has shown reasonable cause for this Court to grant the order prayed for as the report relating to the death of the Deceased is necessary to fairly dispose of the matter, pursuant to the overriding objective of Order 1 rule 2 of C.I. 47.
The report or record of proceedings of the Board of Inquiry relating to the admission, treatment and death of the Deceased, howsoever described by the Is to 3rd Defendant/Respondents, together with the medical records of the Deceased shall be furnished to the Plaintiff/Applicant within ten (10) days hereof”.
With the subject matter, the family contends that “the hospital and its employees fail to exercise due care when they wrongly inserted Solomon’s breathing tube under his skin thereby denying oxygen for a considerable amount of time and as such causing stain on his heart and other organs and thus causing his death.”
Previous Rulings on Patient Medical Records as Human Rights
In Elizabeth Vaah v Lister Hospital and Fertility Centre, HRCM 69/10 , a client who was under the care of the defendant hospital sued the hospital, relying on the right to information guaranteed under Article 21(1)(f) of 1992 Constitution of Ghana (the Constitution), when she sought to recover her medical record to clarify the cause of death of her stillborn baby. The applicant’s case is that her fundamental human rights have been violated by the respondent when the latter refused to release her medical records to her.
The respondent argued that it was justified in refusing the applicant’s request for medical records because by speaking to the press about the circumstances in which she gave birth at the respondent’s hospital, she had evinced an intention to abuse the records. It was held that the plaintiff was entitled to a copy of her medical record from Lister Hospital. The legal principle found, in this case, is that a medical facility cannot violate or prevent a patient from accessing their records.
Finally, in Jehu Appiah v Nyaho Healthcare Limited , where the plaintiff accused the facility of allegedly damaging her fallopian tube, which nearly led to her death. According to the case, the plaintiff, upon conception utilized antenatal care services at the respondent hospital. But at a point, she claimed she had to undergo life-saving surgery at a different health facility due to the “actions and inactions” of the Nyaho hospital. After the life-saving surgery, she made a formal complaint to Nyaho Healthcare Limited, after which she was promised investigations into the matter and the results communicated to her. The plaintiff noted that all efforts to compel the respondent hospital to release her medical documents (including scans, tests, diagnosis, and treatment) proved futile. The court held that the complete medical records be released to the patient.
A party alleging medical negligence has the right to obtain disclosure from the defendant’s hospital. Though, some documents are privileged from disclosure on public policy grounds. It is also prudent to know that the fundamental purpose of disclosure is to further the overriding objective by ensuring parties to litigation are on an equal footing. The court will exercise its discretion in favour of the plaintiff if the disclosure aids the court in dispensing justice and a fair trial.
Also, the meaning of ‘documents’ is not restricted to paper or writing but extends to any form of record-keeping. This includes computer databases, microfilms used to keep records, video and audio tapes, and discs. Hence, in today’s medical care industry, where hospitals have adopted electronic record systems, discovery extends to them.
Thus, in clinical negligence claims, the most important category of the document to be disclosed is likely to be the claimant’s medical records. They will provide the most contemporaneous record of the treatment given to a patient and will, in almost all cases, be the basis of expert opinion that will determine the outcome of the litigation. Early and objective scrutiny of medical records can save a lot of time and expense and is necessary to assess the merits, strengths, and weaknesses of any proposed claim from the outset. For the defendant, case laws proved that patients have rights to the medical records, and it is also your source of defense in medical negligence civil litigation.
Prof. Raphael Nyarkotey Obu is a (BL) candidate at the Gambia Law School, Banjul, The Gambia, and Daniel Sackey is a Part Two student of the Ghana School of Law, Accra, Ghana. E-mail: [email protected]. The authors have an interest in medico-legal issues and patient rights. The legal article is for academic awareness only.