Abstract

The Ontario Superior Court of Justice released a significant judgment in November 2002, confirming that quality assurance reports prepared by a Quality Assurance Subcommittee of the Medical Advisory Committee are confidential and privileged and need not be produced by the hospital in a medical malpractice lawsuit. The case provides valuable guidance to risk managers and medical leaders about the steps they need to take to establish and protect the confidentiality of these QA reports. The case, Steep (Litigation Guardian of) v. Scott (2003), 62 O.R. (3d) 173, involved a medical malpractice action arising from the birth of an infant with severe brain damage. The parents sought production of two quality assurance reports from the Kingston General Hospital that related to the case. The court dismissed the production request.

The Superior Court made the following relevant findings:

There are certain types of communications that are always privileged (such as the rules relating to solicitor-client privilege). Other communications may be privileged, depending on whether they meet the case-by-case test established by the Supreme Court of Canada. Based on previous Supreme Court of Canada jurisprudence (Slavutych v. Baker [1975] 1 S.C.R. 254 and R. v. Gruenke, [1991] 3 S.C.R. 263), there are four conditions necessary to establish that a communication is protected by common law privilege:

  1. The communications must originate in a confidence with the understanding that they will not be disclosed. Although neither the Public Hospitals Act (Ontario) nor the Hospital's by-laws required that peer quality reviews be conducted in confidence, the Court concluded that it was the practice of the Hospital to conduct such reviews on a confidential basis.
  2. The element of confidentiality is essential to the full and satisfactory maintenance of the relation between the parties. The relationship between medical staff and the quality assurance committee depends upon open and candid communication. Both the Head of the Department and the Hospital's Medical Director testified that physicians and other staff members would no longer take part in open and frank discussions about quality assurance if confidentiality were not guaranteed. Instead, staff would be self-protective, guarded and concerned about the consequences of any admissions, despite professional obligations and responsibilities.
  3. The relation is one which in the opinion of the community ought to be diligently fostered. The Court emphasized that the free exchange of information - with the protection of confidentiality - goes to the very core of successful quality assurance reviews, leading directly to the improvement of quality care:
    "It is in the public interest that hospital care and services are effectively assessed and improved to ensure a continuously improving quality of health care." (per Egan J.)

  4. The injury that would result by the disclosure must be greater than the benefit gained for the correct disposal of litigation. In balancing the benefit of disclosure vs. the benefit of maintaining confidentiality of the quality assurance review, some factors considered by the Court were:
    1. whether hospital records are available;
    2. whether the treating physicians are available for questioning;
    3. whether the information sought is available via other means, and
    4. if some or all of the information is not available by other means, how important is the information to the plaintiffs.

    Since the Hospital provided its records, and facts of the report are discoverable by examinations of discovery, the Court concluded that the relevant information sought by the plaintiffs is available to them by other means. The parents of the injured infant could, for example, ask at examinations for discovery whether the Hospital made any changes in procedure related to the events surrounding the birth of the infant.

Also of interest, the Court considered the existence of legislation in all provinces and territories except for Ontario and in all 50 U.S. states that establishes a quality assurance privilege or prohibits asking and answering of questions related to a medical quality assurance or peer review process. The Court commented that the existence of this legislation is a strong indication of public policy supporting the confidentiality of quality assurance reviews and indicating the importance of maintaining privilege over such reviews. The Court went on to say that Ontario's lack of legislation did not affect its decision - based on the Supreme Court of Canada test reviewed above, the quality assurance reports were protected by a common law privilege that exists outside of specific legislation.

Risk Management Implications

This case has significant risk management implications for hospitals. The case-by-case analysis that the Court undertook in the Steep case means that quality assurance reviews will only be protected by common law privilege if the four conditions are met in each case. When conducting quality assurance reviews, the individuals providing information as part of the process should be advised that the information will be kept confidential. A written policy to this effect, endorsed by the Quality Assurance Committee, the Medical Advisory Committee, and the Board, would also be useful evidence.

About the Author

Michael Watts and Kathy O'Brien are lawyers practising exclusively with health care clients in the Health Law Group of Cassels Brock.