An Accra High Court has ordered the Chief of Defence Staff (CDS) and the 37 Military Hospital to release an investigation report conducted on the death of Mr Solomon Asare-Kumah, a 48-year-old man, to his family.
The Court, presided over by Justice Charles Ekow Baiden, a Justice of the Court of Appeal sitting as an additional High Court Judge, ordered that the report should be released within 10 days.
The family of Solomon Asare-Kumah had sued the Hospital together with Col/Dr. G. A. O. Appiah, a Doctor at the facility, the CDS, and Attorney General, demanding GHS2 million in damages for medical negligence leading to his death.
The bereaved family contended that the death of their relative at the Hospital in October 2019 was due to breach of contract and negligence by the Hospital and the doctor, Col. Dr Appiah, who took care of him.
The family, then petitioned the CDS for an enquiry into the circumstances leading to the death of their relative but after the investigation, the report was not given to them.
Following suing the Hospital for damages and pending the determination of the case, the family through one Emmanuel Asare-Kumah, on October 21, 2022, filed an application for an order for Discovery.
The plaintiff sought for; “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 Col/Dr Appiah.”
The Plaintiff also sought “an order directed at the 3rd Defendant (37 Military Hospital) to furnish Plaintiff with the full and complete medical record of Solomon Asare-Kumah (deceased).
Mr Justice Oteng, a Legal Officer at the Depatment of Legal Services at the Ghana Armed Forces, General Headquarters, responding to the application, opposed to the request and said the report was exclusively for internal use.
He said “..The 2nd Respondent is vehemently opposed to the request by the Applicant for the Report/Record of the Board of inquiry.”
He said the Report of the Board of inquiry was a restricted document meant for the exclusive internal use of the Ghana Armed Forces.
The Court said 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 AG, CDS and the Hospital, together with the medical records of the deceased shall be furnished to the Plaintiff within 10 days.
The 10 days order is expected to end on Monday June 12, 2023.
Justice Baiden in his ruling said, “I take judicial notice and it is so proven that on or around January 2023, a summary report of Board of Inquiry into the alleged missing baby at the 37 Military Hospital maternity unit, which Board of Inquiry was convened by the Hospital was disclosed to an aggrieved couple in that matter.”
“I am of the humble view that the principles of accountability enshrined in the Preamble, Articles 23 and 296 of the 1992 Constitution frowns upon 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,” he said.
He said even if, the Defendants had 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.
Indeed, Article 17 of the 1992 Constitutions abhors discrimination against persons such as the Plaintiff/Applicant herein.
He said Article 17(3) provides that: “For the purposes of this article, “discriminate” means to give different treatment to different versions 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.”
The Judge said it had not been demonstrated to the Court that there was a reasonable justification for treating the Plaintiff/Applicant differently from the manner the couple has been treated.
He said 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.
He said in so far as the Defendants/Respondents engaged in commercial transactions, they must necessarily abide by the rules of engagement, including good faith obligations and the duty of care, among others.
“The Defendants/Respondents ought not to be allowed to seek refuge elsewhere,” he added.
He said for all the above reasons, “l 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 1rule 2of C.I. 47.”
The family contended that, “the Hospital and its employees failed 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 thus causing his death.”
They argued that they, therefore, requested for a refund and for an administrative enquiry into the claims as well as the allegations of breach of contract and negligence but the Hospital refused to accede to the demand for investigations.
The family said a petition was therefore lodged with the Medical and Dental Council which took up the matter with the Military Command.
It said the Military Command subsequently commissioned a Board of Inquiry to look into the petition, where they were invited to give testimony as part of proceedings held by the Military Command and it did in March 2020.
“Unfortunately, the Military Command, just like the Hospital has failed and or refused to communicate its findings or make available its report to the family, in spite of several demands by the family and plaintiff’s lawyer,” they said.
The Plaintiff stated that indeed, the CDS’s office failed to respond to plaintiff lawyer’s letter requesting for a copy of the report on behalf of the grieving family.
When officers from the lawyer’s office subsequently followed up, they were informed that the office would get back to the family, but that had not happened as at the time the plaintiff’s lawyers served a notice of plaintiff’s intention to sue.
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