Lawyer accuses state of getting rid of files

2013-09-01 14:00

A lawyer fighting for justice for families of brain-damaged babies has accused state officials of deliberately destroying patient files to avoid being sued.

Pretoria-based lawyer Olof Joubert has represented hundreds of mothers whose children are now physically and mentally damaged as a result of alleged negligence in public hospitals around Gauteng.

He said: “They starve us of information so that I can’t prove my cases on a basis of probability alone. We get letters from the department which tell us that records have been destroyed.

“The MRI (magnetic resonance imaging) scans are saving us at the moment – if we didn’t have them it would be hard to prove our cases in court.”

In April, Joubert obtained a court order compelling Pholosong Hospital in Ekurhuleni to hand over the childbirth medical records of 41 mothers, but he received only eight.

In some cases, the records were either irrelevant or incomplete, despite the court order clearly stating what information the hospital should provide.

“To prove medical negligence, we need both the medical records of the mother and the birth records of the baby to do a proper investigation,” he said.

“So what they tend to do is to give us the outpatient records of the child despite the court order being very specific. It’s not like they are confused, they know exactly what we requested. But they deliberately give us the wrong records or even worse, give us no records at all.”

Department spokesperson Simon Zwane admitted that files do disappear from hospitals and sometimes lawyers receive incomplete medical records, but, he said, “this (happens) in a few cases where the course of action is old”.

Joubert was not convinced. He accused the hospital of playing a “cat and mouse game”.

“We suspect these files are hidden somewhere or have been destroyed to avoid accountability. But what infuriates me the most is they are trying to run away from responsibility, forgetting that they have messed up the lives of these kids and their parents.

“They are capitalising on the fact that most of these mothers are not educated and probably wouldn’t question how their child developed cerebral palsy or that the file mysteriously disappeared afterwards,” he said.

According to Joubert, the department claimed that records had been destroyed due to the time that had elapsed between the treatment and the claim being filed.

“The question is why they destroy the documents. How are they going to treat the patients when they come back, because there is no history?” he asked.

Professional standards require records of minors to be retained for at least six years. Joubert also claimed that his clients were being intimidated in hospitals when they took their children for physiotherapy.

“It is a way to discourage them from pursuing litigation. They are not making it easy.

“Many of my clients have resorted to stealing their own record because they don’t know what will happen to them.

“I do discourage it but one cannot blame them,” he said.

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