Suit against 37 Military Hosp: Court grants deceased family’s request to file additional documents

The High Court in Accra has granted a request from a family whose relative died at the 37-Military Hospital to file a supplementary affidavit to their case.

The family of a 48-year-old man Emmanuel Asare- Kumah had filed an application asking the High Court in Accra to compel the Chief of Defence Staff (CDS), the 37 Military Hospital and the Attorney General to release an investigation report conducted on the circumstances leading to their relative’s death.

The family had sued the Hospital together with a doctor, the CDS and Attorney General demanding GHc2 million damages for medical negligence leading to his death.

The family contended that the death of Solomon Asare-Kumah at the hospital in October 2019 was due to breach of contract and negligence by the hospital and the doctor, Col. Dr Gao Appiah who took care of him.

In addition to the writ, the family is asking the court to compel the Hospital, the Chief of Defence Staff and the Attorney General to release the report them after several attempts failed.

In court on March 1, 2023, Counsel for the family Lawyer Kormivi Dzotsi, holding brief for Martin Kpebu drew the court’s attention to a similar incident involving a couple with twins.

Counsel contended that the Board of Inquiry report on that particular incident had been release to the woman and does not see why the hospital is refusing to release that of the deceased to the family.

Justice Charles Ekow Baiden, a Justice of the Court of Appeal sitting as an additional High Court judge granted the request for the applicant to file supplementary affidavit.”

Upon service on the Respondents, the court said they should respond within time.

The case which was held in chambers has since been adjourned to March 24,2023.

Background

On the October 21, 2022 the Plaintiff/Applicant filed an application for an order for Discovery 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 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).”

Subject matter

The family contends 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.”

The family argues that they therefore requested for a refund and for an administrative enquiry into these claims as well as the allegations of breach of contract and negligence, but the 3rd defendant 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.

“Plaintiff avers that the Military Command subsequently commissioned a Board of Inquiry to look into the petition. The

family was invited to give testimony as part of proceedings held by the Military Command and it did. This was in March, 2020.

“Unfortunately, the Military Command, just like the 3rd defendant 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.

Plaintiff states that indeed, the 2nd defendant’s office has failed to respond to plaintiff lawyer’s letter requesting for a copy of the report on behalf of the grieving family. The office simply ignored the letter.

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 noticeof plaintiff’s intention to sue.

The Plaintiff avers that the particulars of undue influence and isrepresentation are:

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a. The relationship between 4th defendant (the consultant surgeon assigned by the 3rd defendant to Solomon’s case) on the one hand, and Solomon and the family on the other hand, was that of a superior and an inferior relationship (ie doctor-patient);

b. 4th Defendant knew that the family trusted him as a consultant surgeon and a Senior Military Officer and would rely on his statements;

c. The family relied on 4th defendant’s statements and paid to him the sum of thirty-six thousand two hundred Ghana Cedis (GHC36,200.00) for the purchase of the alleged surgical supplies and for his services;

d. 4th Defendant took advantage ofhis position as a consultant surgeon and a highly ranked member of the Military to

extort the sum of thirty-six thousand two hundred Ghana Cedis (GH&36,200.00) by making false representation to Solomon’s family that he required the money to purchase surgical supplies, and for his services when he knew these

representations were false;

e. 4th defendant knew that Solomon’s family was vulnerable at the material time that he (reviewed his alleged fees for surgery by an additional US$2000.00.

*Report is exclusively for internal use*

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 Ist 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.”

It 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 contends “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 re- port 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.”