In medical malpractice litigation, the production of hospital quality assurance records is a perennial flashpoint. Plaintiffs argue that internal review of an adverse event is precisely the kind of evidence that should be available to a court considering whether negligence caused harm. Defendants argue that quality review only works if participants can speak frankly without fear that their candour will become evidence in litigation. The law has come down, decisively, on the side of confidentiality. In Ontario, quality of care information is protected both by statute and at common law.
Algarawi v Berger, 2023 ONSC 2339 (heard together with Porter v Sutandar) is a recent illustration of how the common law protection works in practice. The court found that the quality review documents the plaintiffs sought were relevant to the issues in the underlying actions. The court also found that, despite their relevance, they were protected by case-by-case privilege under the Wigmore test and were not producible.
The facts
Two separate medical negligence actions involving St. Michael’s Hospital arrived at the same point in discovery. The plaintiffs in each case sought production of internal quality assurance documents generated after the adverse events at issue, including:
- A report, recommendations, and follow-up from a Local Quality of Care Committee meeting in the obstetrics and labour-and-delivery unit
- Agenda, notations, case assignments, and factual summaries from an Incident Analysis Team meeting
- An email from a physician to Incident Analysis Team members assigning cases for review
- A PowerPoint presentation prepared for Perinatal/Neonatal Morbidity and Mortality Rounds
The defendants resisted production on two grounds: that the documents were not relevant, and that they were protected by case-by-case privilege under Wigmore.
The decision
The motion judge addressed each ground in turn.
Relevance. After reviewing the documents, the court found that they were, in whole or in part, relevant to the matters in dispute. Quality review of an adverse event will, almost by definition, touch on the same care that is at issue in subsequent litigation. The court did not strain to find relevance lacking.
Privilege. Notwithstanding the relevance finding, the court applied the four-part Wigmore test for case-by-case privilege, as adopted by the Supreme Court of Canada:
- The communications must originate in a confidence that they will not be disclosed.
- The element of confidentiality must be essential to the full and satisfactory maintenance of the relation between the parties.
- The relation must be one which, in the opinion of the community, ought to be sedulously fostered.
- The injury that would inure to the relation by the disclosure of the communications must be greater than the benefit thereby gained for the correct disposal of the litigation.
The motion judge found that each branch was satisfied with respect to the documents in dispute. Quality review at hospitals is built on participants’ understanding that their contributions will be confidential. Without that understanding, candid review of adverse events would not occur, or would be reduced to a sanitized formality. The relationship between hospital staff and the quality review process is one the wider community has a powerful interest in fostering, because patient safety depends on it. And the cost to that process from disclosure outweighed the benefit to the litigation, particularly given that the underlying clinical facts could be established through the medical records and witness testimony.
The motion judge also noted that Ontario courts have repeatedly recognized the importance of protecting quality assurance communications at common law.
The documents were not produced.
The doctrinal context
In Ontario, quality of care information is protected on two tracks.
The first is statutory. The Quality of Care Information Protection Act, 2016 (QCIPA) protects “quality of care information” prepared by or for a designated “quality of care committee” at a health facility. Section 4 of the Act prohibits disclosure of qualifying information except as permitted by the Act, and the exceptions are narrow. Where the statutory definition is met, the protection is robust as a matter of legal proceedings.
The second is common law. Where documents fall outside QCIPA’s statutory definition (because the committee was not formally designated, because the document is not “quality of care information” as defined, or for any other reason), case-by-case privilege under Wigmore remains available. Algarawi is a worked example of the common law layer. The motion judge applied the Wigmore test directly to the documents and found that the protection was made out, regardless of whether the statutory regime might also have applied.
The practical effect is that a plaintiff seeking production of quality review records has to overcome two layered protections: the statutory regime first, and the common law privilege second. Algarawi confirms that the second layer holds even for documents the court has found relevant to the underlying claim.
Why this case matters
For plaintiffs and their counsel. Algarawi is a useful reminder that motions for production of internal quality review documents are difficult to win in Ontario. The clinical facts almost always have to be established through the medical record, the witnesses, and expert evidence, not through the hospital’s own retrospective analysis. Discovery time is better spent on those primary sources, and on the medical record’s gaps and inconsistencies, than on attempts to pierce QCIPA or Wigmore privilege. That said, where there is a genuine basis to argue that documents fall outside both the statutory and common law protections (for example, where a so-called quality review process was actually a different kind of inquiry, or where the documents were shared outside the protected circle), a targeted motion may still have a place.
For defence counsel and hospital risk managers. The case is a reminder that the protections exist for a reason and that they are robust, but also that they depend on the discipline of the underlying process. Quality review committees that are properly constituted, quality of care information that is properly identified and segregated, and a culture of confidentiality maintained in practice will be defensible. Practices that blur the lines between quality review and operational decision-making are more vulnerable.
For patients and families. A bad outcome in hospital is often followed by an internal review. Patients sometimes hear that there has been an “investigation” and reasonably expect to see the report. The legal reality is that those reports are, in most cases, not available in subsequent litigation. The protection is not designed to keep information from patients out of bad faith. It is designed to ensure that frank internal review actually happens, which over time produces safer care. The information needed to assess whether negligence occurred and caused harm comes from the medical records, the witnesses, and expert review, not from the internal report.
For more on how medical malpractice cases are built and tried in Ontario, see Suing for Medical Malpractice in Ontario: What You Need to Know. For a related procedural decision on a different head of privilege, see Salamaszynski v Michael Garron Hospital: Litigation Privilege Holds Despite a Late-Emerging Recollection.
Decision Date: April 17, 2023
Jurisdiction: Ontario Superior Court of Justice
Citation: Algarawi v Berger; Porter v Sutandar, 2023 ONSC 2339 (CanLII)
