23
not, however, prevent the file from being released to direct next of kin or responsible
third parties who can prove that they hold a legitimate interest therein, subject to
the relevant regulations.57
68.
In general, the relevance of a properly integrated medical file is evident as
the guiding instrument for medical treatment and a reasonable source of knowledge
regarding the patient’s situation, the steps taken to control it and, as the case may
be, to establish the resulting responsibility. The lack of a file or the existence of a
poorly integrated one, as well as the lack of regulations governing this topic subject
to the rules of ethic and best practices, is an omission that needs to be analyzed and
assessed, in the light of its consequences, to establish potential liabilities of different
nature.
69.
With regard to the arguments submitted by the Commission and the
representatives to the effect that the Eighth Civil Court failed to notify the victims
that it had already received the medical file, the Court notes that there is no
evidence in the proceeding to establish whether the civil judge did give notice of
receipt thereof. Nevertheless, there is evidence that the Eighth Civil Court ordered
the Metropolitan Hospital to deliver the original medical file to the Court. Such order
was issued on November 6, 1990, the very same day on which it was requested
(supra para. 65). The documents were produced ten days later (supra para. 65). The
above proves that the judge acted in a diligent manner and that Laura Albán’s
parents obtained timely access to the medical file.
70.
Moreover, the procedure for the production and acknowledgment of
documents was not a step that would allow the authority administering justice, in
this case the Eighth Court, to analyze the contents of the documents produced and,
accordingly, assess their characteristics and gain knowledge of the possible
commission of an unlawful act.
71.
Based on the above considerations and taking account of the fact that the
action taken by the State in connection with the procedure for the production and
acknowledgement of documents was effective, the Court concludes that the State did
not violate the rights enshrined in Articles 8(1) and 25(1) of the American
Convention to the detriment of Carmen Cornejo de Albán and Bismarck CornejoSánchez, in connection with the facts related to that procedure.
2)
Proceedings before the Honor Tribunal of the Pichincha Medical
Association (Colegio Médico de Pichincha)
72.
On November 25, 1993, Mrs. Cornejo de Albán filed a complaint for
negligence in the fulfillment of the professional practice before the Honor Tribunal
against Dr. Montenegro-López and “[…] all the persons, doctors, nurses and
paramedics, whose names, last names and addresses [were] unknown to her and
should be determined by the accused, Dr. Ramiro Montenegro[-López], as said
regarding clinical information and documentation in Spain; and Article 5(3) of Rule 168-SSA1-1998 on
Medical Records of Mexico.
57
See, Law No. 41/2002 of November 14, 2002, the basic act regulating patient autonomy and
rights and obligations regarding clinical information and documentation in Spain, Article 18(4); rules on
medical ethics; Law No. 23 of 1981, Colombia, Article 34; Chile’s Ethics Code, Article 30; and Peru’s
General Health Act, Article 25; and Argentina’s Ethics Code, Article 72.