An Accra High Court has ordered the Chief of the Defence Staff (CDS) and the 37 Military Hospital to give to the family of Solomon Asare-Kumah, a 48-year-old man, the findings of an investigation into his death.
The court, presided over by Justice Charles Ekow Baiden, a Justice of the Court of Appeal serving as an additional High Court judge, ordered that the report be made public within ten days.
The family of Solomon Asare-Kumah had sued the hospital, as well as Col/Dr. G. A. O. Appiah, a doctor at the facility, the CDS, and the Attorney-General, seeking GH2 million in damages for medical malpractice that resulted in Asare-Kumah’s death.
Alleged breach
The bereaved family contended that the death of Asare-Kumah at the Hospital in October 2019 was due to a breach of contract and negligence by the hospital and the doctor, Col. Dr Appiah, who took care of him.
Consequently, the family petitioned the CDS for an enquiry into the circumstances leading to the death of Asare-Kumah, but after the investigation, the report was not given to the family.
After suing the hospital in 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 “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).”
After suing the hospital in 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 “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).”
The 10 days order was expected to end yesterday, Monday, June 12, 2023.
Ruling
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 not to 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.”
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 had been treated.
He said the defendants/respondents had denied the existence of a contract.
If so, the defendants/respondents must be made to subject the dispute to the ordinary rules of negligence in tort, contract and the remedies available to a party who alleged 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.”
Case of family
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 and thus causing his death.”
They, therefore, requested a refund and 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.
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, 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.
