Evidence from internal review inadmissible in medical malpractice suit: B.C. Supreme Court

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Evidence from internal review inadmissible in medical malpractice suit: B.C. Supreme Court

The B.C. Supreme Court has refused to admit as evidence a letter relating a hospital’s internal quality review process in a medical malpractice suit arising out of the death of a three-year old.

In Gill v. Fraser Health Authority, 2022 BCSC 638, Nimrat Gill died at Abbotsford Regional Hospital. Her parents, the plaintiffs, sought damages against the hospital, claiming that her death was caused by a failure to properly diagnose and treat an infection.

The plaintiffs wished to enter as evidence a letter sent to them by the hospital’s operator, Fraser Health Authority (FHA). The letter was sent in response to questions that the plaintiffs had raised through the hospital’s Patient Care Quality Office (PCQO). Under the Patient Care Quality Review Board Act (PCQRBA), each health authority is required to have a PCQO to receive and respond to complaints.

In the letter, FHA specifically referred to certain new or revised procedures that the hospital was implementing or considering in the emergency department following Nimrat Gill’s death. The court presumed that the plaintiffs intended to argue that those new procedures in fact represented the standard of care that was required at the time Nimrat was admitted to the hospital.

FHA challenged the admissibility of the letter, asserting that it included information from an internal quality review process, which is confidential information protected by the Evidence Act (EA).  Specifically, the act prohibits the production of a record that was used in the course of or arose out of the study, investigation, evaluation, or program carried on by a committee. The purpose of the law is to protect efforts made by hospitals to ensure that high standards of patient care and professional competency and ethics are maintained by ensuring confidentiality for documents and proceedings of committees entrusted with this task.

FHA claimed that a Patient Safety Review was commissioned “for the purposes of studying, investigating or evaluating the care provided by the health care professionals involved in the care of Nimrat.” FHA further asserted that the Safety Review Committee was specifically established pursuant to s. 51 of the EA and reviewed documents that were marked as having been prepared for quality improvement purposes subject to the EA. The findings of the review committee were then reported to the Abbotsford and Mission Area Quality and Operations Management Committee (HOMC), which in turn made recommendations that were summarized in the letter sent to Nimrat’s parents.

The court found that the review committee fell within the scope of the EA and the letter contained information that “arose out of the study, investigation, evaluation or program carried on by a committee.” In addition, the letter included “a report or summary” of its findings within the meaning of the EA.

The plaintiffs argued that FHA had effectively waived the protection under the EA by including confidential information in the letter. However, the court took the position that s. 51 creates an absolute prohibition, not a privilege that can be waived, either intentionally or inadvertently.

The court ultimately ruled that the letter was inadmissible as evidence, but the plaintiffs could still pursue other areas of investigation or lines of questioning as long as the letter was not in itself put into evidence and no witness was directly asked about it.

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