Medical professional claims there were irregularities in hospital’s quality assurance process
A judge erred in analyzing the statutory privilege under s. 8.1(3) of N.L.’s Evidence Act, 1990 for evidence regarding quality assurance committees, the N.L. Court of Appeal held in proceedings brought by a doctor.
The appellant in this case was a general surgeon practising at Western Regional Integrated Health Authority in Corner Brook, Newfoundland and Labrador.
In February 2016, the Department of Perioperative (Anesthesiology) Medicine withdrew all the surgeon’s anesthesiology services based on alleged patient safety concerns. The hospital accepted the findings and recommendations of a June 2018 report issued by its quality assurance committee.
The surgeon made a claim for damages. He alleged that the hospital had irregularities in its quality assurance process, committed the tort of misfeasance in public office, and breached its duty to act in good faith and other common law and/or statutory duties owed to him.
The hospital applied to strike all or some portions of the surgeon’s statement of claim under r. 14.24 of N.L.’s Rules of the Supreme Court, 1986. His claims should fail because the evidence of the committee’s proceedings was inadmissible under s. 8.1 of the Evidence Act, which excluded from legal proceedings certain evidence relating to quality assurance committees, the hospital argued.
The surgeon countered that the portions of his pleading alleging fraudulent, dishonest, and/or bad faith conduct did not rely on evidence protected by the statutory privilege.
The applications judge struck the entire statement of claim and dismissed the surgeon’s action. He held that it was appropriate to adopt a broad interpretation of s. 8.1 and that striking the pleading’s parts covered by s. 8.1 would leave no remaining cause of action.
Surgeon’s case remitted
In Kathirgamanathan v Newfoundland and Labrador (Western Regional Integrated Health Authority), 2023 NLCA 34, the Newfoundland and Labrador Court of Appeal allowed the appeal and remitted the matter to the N.L. Supreme Court.
According to the appellate court, the lower court should determine which parts of the surgeon’s statement of claim should remain and which should be stricken on the ground that they would fail since they contained allegations relying on evidence inadmissible based on the privilege under s. 8.1 of the Evidence Act.
First, the appellate court decided that it would be confining the statutory privilege to substantive matters associated with the quality assurance committee’s proceedings. The privilege would not extend to factual or procedural evidence such as the fact that a complaint had been made or that a report had been issued, the appellate court said.
The applications judge erred in applying the modern approach to statutory interpretation and in determining that he should give s. 8.1 an interpretation so broad that the privilege would protect anything associated with the committee, the appellate court added.
Next, the appellate court held that the applications judge failed to conduct the review required to assess whether the disputed paragraphs of the surgeon’s pleading relied on inadmissible evidence and thus disclosed no reasonable cause of action under r. 14.24(1)(a).
The judge should not have stricken the entire pleading without reviewing it paragraph by paragraph, without identifying the evidence supporting the alleged facts, without deciding if such evidence was inadmissible under s. 8.1, and without considering whether an appropriate amendment could cure the pleading’s defects, the appellate court said.
Specifically, the appellate court found that the judge failed to address evidence about the following matters:
- the basis for a duty owed to the surgeon
- the provisions of the hospital’s by-laws
- the dates when the allegations were made, when the surgeon was notified, when anesthesiology services were withdrawn, and when the report was provided
- the credentials of the committee members