Hospitals, whether private or public, cannot refuse to furnish the records of treatment to the patient. They should also understand that refusal amounts to deficiency and hence ‘negligence’. If they come up with plea that medical records were removed or destroyed, the courts or consumer fora can draw adverse inference, that entitles patients for damages from doctors or hospitals.

The Kerala High Court recognised the principle of patient’s right to be informed in Rajappan Vs. Sree  Chitra Tirunal Institute for Medical Science and Technology (ILR 2004 (2) Kerala150).  The Court had observed that: 

".....Appendix   3   referred   to   in  MCI  regulations   1.3.1   provides   for   information,   among   other things,   pertaining   to   diagnosis,   investigations   advised   with   reports,   diagnosis   after investigation, and advice. Therefore it is obvious from the appendix that what is to be given is the full details about the patient, namely, the findings pertaining to the deceased.  

That is the diagnosis and the periodical advice for treatment. As and when diagnosis is made the treatment will be advised by the doctor to the nursing staff in the case sheet itself. Therefore the case sheet will show the progressive testing, diagnosis and treatment given to the patient. The details to be furnished in Appendix 3 are of comprehensive in nature and should contain the diagnosis and treatment given to the patient during the period,   the   patient   was   under   treatment.  

Regulation   1.3.1   has   to   be   read   with   regulation 1.3.2 which makes it mandatory that any patient requesting for medical   records should be furnished copies of "documents" within 72 hours from the date of demand. In other words, the patient's right to receive documents pertaining to   his/her treatment is recognised by the Regulations. 

The documents referred to in Regulation 1.3.2 necessarily have to be the entire case sheet maintained in the hospital, which contains the result of diagnosis and treatment administered, the summary of which is provided in Appendix 3. Therefore the petitioner is entitled to photocopies of the entire case sheet and the respondents cannot decline to give the same by stating that the details are available in Appendix 3 furnished, which they are willing to furnish."

The Kerala High Court has further explained:  
“It is also to be noticed that Regulations do not provide any immunity for any medical record to be retained by any medical practitioner of the hospital from being given  to the patient. On the other hand it is expressly provided that a patient should be given  medical records in Appendix 3 with supporting documents. 

Therefore in the absence of  any immunity either under the Regulations or under any other law, the respondent­ Hospital   is   bound   to   give   photocopies   of   the   entire   documents   of   the   patient.  Standing   counsel   for   the   respondent­Hospital   submitted   that   the   documents   once  furnished   will   be   used   as   evidence   against   the   hospital   and   against   the   doctors  concerned.   I   do   not   think   this   apprehension   will   justify   for   claiming   immunity   against  furnishing the documents. 

If proper service was rendered in the course of treatment, I  see no reason why the hospital, or staff, or doctors should be apprehensive of any  litigation. A patient or victim's relative is entitled to know whether proper medical  care was rendered to the patient entrusted with the hospital, which will be revealed  from case sheet and medical records. 

There should be absolute transparency with  regard to the treatment of a patient and a patient or victim's relative is entitled to  get copies of medical records. This is recognized by the Medical Council Regulations  and  therefore  petitioner is entitled  to have copies  of  the entire medical  records of  his  daughter which should be furnished in full. 

Refusal is deficiency of service
There   are   several   decisions   by   the   High   Courts   and   Consumer Dispute Redressal Commissions establishing the right of patient to information and duty of the Hospitals to provide the same. In Kanaiyalal Ramanlal Trivedi v Dr. Satyanarayan Vishwakarma [1996; 3 CPR  24 (Guj); I (1997) CPJ 332 (Guj); 1998 CCJ 690 (Guj)] the hospital and doctor were held guilty of deficiency in service as case records were not produced before the court to refute the allegation of a lack of standard care and thus were made to pay damages to the patient-consumer. 

If hospital takes up a plea that record was destroyed, it was held that it could be a case of negligence.   In  S A Quereshi   v   Padode   memorial   Hospital   and   Research Centre  [II 2000. CPJ 463 (Bhopal)] it was held that the plea of destroying the case sheet as per the  general practice of the hospitals appeared to the court as an attempt to suppress certain  facts  that  are  likely  to  be  revealed  from  the  case  sheet.   The opposite party was found negligent as he should have retained the case records until the disposal of the complaint.  This means that hospital has to pay compensation.

Explaining the consequences of denial of medical record, it was held that an adverse inference could be drawn from that. In case of Dr. Shyam Kumar v Rameshbhai,  Harmanbhai Kachiya [2002; 1 CPR 320, I (2006) CPJ 16 (NC)] The National Commission said   that  not producing   medical   records   to   the   patient   prevents   the   complainant   from  seeking an expert opinion and it is the duty of the person in possession of the medical  records to produce it in the court and adverse inference could be drawn for not producing  the records. 

National Commission in case of Meenakshi Mission Hospital and Research Centre v. Samuraj   and   Anr  [I (2005)   CPJ   (NC)]    held   that   the   hospital   was   guilty   of  negligence  on   the   ground   that   the   name   of   the   anesthetist   was   not   mentioned   in   the  operation notes though anesthesia was administered by two anesthetists. There were two progress cards about the same patient on two separate papers that were produced in court.  

In Dr. Tokugha Yeptomi V Appollo Hospital Enterprises Ltd and Anr, [III 1998 CPJ 132 (SC)] it was held that not maintaining confidentiality of patient information could be an issue of medical negligence. In this case the HIV status of a patient was made known to others without the consent of the patient. These decisions establish the right of the patient and obligation of hospitals or medical institutions to give medical records. 

Bombay High Court
In  Raghunath G Raheja v Maharashtra  Medical  Council, [11.1.1996, AIR 1996 Bom 198, Bench: M Shah, A Savant, https://indiankanoon.org/doc/1068495/] Bombay High Court upheld the right of patient to medical record very emphatically.  

We have no doubt in our mind that a medical practitioner should merit the confidence of the patients entrusted to his care rendering to each a full measure of service and devotion. …We are of the view that when a patient or his near relative demands from the Hospital or the doctor the copies of the case papers, it is necessary for the Hospital authorities and the doctors concerned to furnish copies of such case papers to the patient or his near relative. 

In our view, it would be necessary for the Medical Council to ensure that necessary directions are given to all the Hospitals and the doctors calling upon then to furnish the copies of the case papers and all the relevant documents pertaining to the patient concerned. The hospitals and the doctors may be justified, in demanding necessary charges for supplying the copies of such documents to the patient or the near relative. 

The High Court also directed Maharashtra Medical Council to issue necessary circulars in this behalf to all the hospitals and doctors in the State of Maharashtra. HC said: 

“We do not think that the hospitals or the doctors can claim any secrecy! or any confidentiality in the matter of copies of the case papers relating to the patient. These must be made available to him on demand, subject to payment of usual charges. If necessary, the Medical Council may issue a press-note in this behalf giving it wide publicity in all the media”.