A report on the investigation into the death of Mr. Solomon Asare-Kumah, a 48-year-old man, has been ordered to be released to his family by the Chief of Defence Staff (CDS) and the 37 Military Hospital by the Accra High Court.
The report must be made public within 10 days, per an order from the court presided over by Justice Charles Ekow Baiden, a Justice of the Court of Appeal acting as an additional High Court Judge.
In a lawsuit filed against the hospital, Col/Dr. G. A. O. Appiah, a doctor who worked there, the CDS, and the Attorney General, Solomon Asare-Kumah’s family is seeking GHS2 million in damages for medical malpractice that they claim contributed to their loved one’s death.
The grieving family claimed that the hospital and the doctor who treated their relative, Col. Dr. Appiah, violated their contract and were negligent in their treatment, which led to their relative’s death there in October 2019.
The family then petitioned the CDS for an investigation into the events leading up to the death of their cousin, but they were not provided with the report following the investigation.
The family filed an application for an order for discovery on October 21, 2022 through one Emmanuel Asare-Kumah after suing the Hospital for damages and while waiting for the case’s outcome.
The plaintiff requested “an order directed at the 2nd Defendant (CDS) to furnish Plaintiff with the final Report of the Board of Inquiry held in respect to the death of Solomon Asare-Kumah and allegations of extortion against Col/Dr Appiah.”
The third defendant, 37 Military Hospital, was ordered by the plaintiff to provide him with Solomon Asare-Kumah’s (dead) full and complete medical record.
In response to the request, Mr. Justice Oteng, a legal officer in the Ghana Armed Forces General Headquarters Department of Legal Services, resisted it and claimed the report was only intended for internal use.
The 2nd Respondent “is vehemently opposed to the Applicant’s request for the Report/Record of the Board of inquiry,” he disclosed.
According to him, the Report of the Board of Inquiry is a confidential document intended solely for internal use by the Ghana Armed Forces.
The Court ordered that the Plaintiff receive the report or record of the Board of Inquiry’s proceedings relating to the deceased’s admittance, treatment, and death, as described by the AG, CDS, and the Hospital, as well as the deceased’s medical records, within 10 days.
On June 12, 2023, the 10-day order is anticipated to come to an end.
In his decision, Justice Baiden stated: “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 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 stated that no evidence had been shown to the Court establishing a reasonable basis for treating the Plaintiff/Applicant in a manner distinct from how the couple has been treated.
He said that the Respondents/Defendants have rejected the idea of a contract.
If so, it is necessary to subject the Respondents/Defendants to the standard standards of negligence in contract and tort as well as the remedies available to a party alleging breach.
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 claimed that the CDS office did not react to a letter sent by the plaintiff’s attorney asking for a copy of the report on behalf of the bereaved family.
Officers from the law firm’s office later followed up, and were told that the office will contact the family. However, as of the time the plaintiff’s lawyers served a notice of plaintiff’s intention to suit, this had not transpired.
