The judgment in Khoza v MEC for Health and Social Development, Gauteng re-emphasises the utmost importance of maintaining and preserving all hospital and medical records in the original state.

This was a cerebral palsy claim for brain damage sustained during a birth at a provincial hospital. The CTG records had gone missing without any explanation. That left the hospital with the alleged noting of the CTG data on the labour partogram and oral evidence of the alleged content as the only evidence of foetal distress.

The CTG records were the original and foundational documentary evidence and the subsequent noting of the CTG data on the labour partogram and any oral evidence of its contents was hearsay evidence.

In that context, where there is no explanation for the disappearance of the CTG recordings and a high risk of unreliability, because the partogram had been tampered with and significantly altered, both the partogram and the nursing sister’s oral evidence as to what the CTG in fact recorded was inadmissible hearsay.

The court emphasised the positive obligations in terms of sections 13 and 17 of the National Health Act to ensure both the maintenance and safe storage of hospital records and that adequate access controls are put in place. Where they are not, the person in charge of the health establishment in possession of the patient’s records commits an offence.

There are a number of other judgments that have dealt with the consequences of failure to keep and maintain hospital records and the adverse inference which may be drawn from that failure.

The importance of keeping records is not limited to medical records. If there is a potential or actual claim, documentary evidence must be preserved to avoid an adverse inference of fault being drawn.

Norton Rose Fulbright offers a workshop that deals with the consequences of these judgments and is available free of charge to clients.