Algarawi v. Berger and Porter v. Sutandar, 2022 ONSC 396
Motions Heard: 2021-10-14
SUPERIOR COURT OF JUSTICE (ONTARIO)
RE: Nora Haider Ali Algarawi (by her Litigation Guardian) et al. Plaintiffs -AND- Dr. Howard Berger et al. Defendants
BEFORE: Associate Justice Abrams
COUNSEL: Mahsa Dabirian and Ryan Marinacci, for the Plaintiffs Adam Goldenberg and Leah Ostler, for the Defendants, Dr. Howard Berger, Dr. Adelmo Eduardo Martoglio, Dr. Lauren Hilary Jain, Dr. Meghan Louise Yvonne Brown, Dr. Yael Ganor Paz, and Dr. Filomena Mary Meffe Keegan Boyd and Henry Ngan, for the Defendants, William Osler Health System, Nurse Lauren Prendergast, Nurse Simone Reid, Nurse Amie Archibald-Varley, Nurse Ke Xin Li, Nurse Avalin Douglas, Nurse Jessica McGregor and Nurse Zeridah Nattimba
AND RE: Hezekiah Obadiah Porter (by his Litigation Guardian) et al. Plaintiffs -AND- Dr. Marilyn Sutandar et al. Defendants
BEFORE: Associate Justice Abrams
COUNSEL: Mahsa Dabirian and Ryan Marinacci, for the Plaintiffs Adam Goldenberg and Leah Ostler, for the Defendants, Dr. Marilyn Sutandar, Dr. Ramadan Elmahdy Elsugy, Dr. George Virich, and Dr. May Ibrahim Elhajj Keegan Boyd and Henry Ngan, for the Defendants, Unity Health Toronto, Nurse Kathleen Lindsay, Nurse Paula Patricia Malcolm Walker, Nurse Yasithra Yassodaran, Nurse A. Williams, Nurse A. Carr, Nurse M. Lin
REASONS FOR DECISION
1Two refusals motions were brought by the Bogoroch firm in respect of two medical negligence actions; the Bogoroch firm represents the plaintiffs in each action. The motions arise out of the labour and delivery care provided (a) to plaintiff, Sheryl Annakie Porter, in 2017 (“Porter” action), and (b) to plaintiff Sakina Mahamat-Taha, in 2016 (“Taha” action). The plaintiffs in both actions seek production of information and documents which the defendants (physicians, hospitals and hospital staff) in both actions say: (a) are covered by common law quality assurance privilege (being information and documents collected and generated for quality assurance purposes in a non-QCIPA context) and (b) are irrelevant, in any event.
2The arguments in respect of the two motions were advanced together and the defendants in both actions, together, took (and take) a like position in respect of the relief sought.
3Given that the arguments made addressed production/disclosure generally and did not address each refusal, in each action, seriatim, I will rule on the two motions--together and in a manner that mirrors the way in which the motions were argued.
Are the information and documentation sought relevant?
4Dealing first with the issue of relevance or irrelevance, the defendants (all) point to R. 31.06 which provides that a person examined for discovery need only answer proper questions relevant to a matter in issue in the proceedings in respect of which the person is being examined. The defendants posit that questions about the case review (Porter)/Incident Analysis Team review/Morbidity and Mortality rounds (Taha), for which answers are now being pursued, are irrelevant to the proceedings or, if relevant, of questionable/minimal probative value.
5At issue in each action are the following: Did the defendants meet the standard of care? If not, did their failure to do so injure the plaintiffs? And, if so, what are the plaintiffs’ damages?
6The defendants in both cases say that all of the facts necessary for independent, third-party experts to opine on the issues of care, causation and damages have been shared—both by way of fulsome documentary discovery (production of the plaintiffs’ respective medical records) and oral discovery of those whose acts and/or omissions are here at issue. Perspectives informed by hindsight, and comments, criticisms and thoughts expressed about potential and/or notional remedial measures, being what are here being sought, are irrelevant, they say. For the reasons advanced by the defendants (about which I shall comment below), I agree.
7In this regard and specifically, the defendants point to evidence adduced as to the case review (Porter) having as its purpose the consideration of “possible improvements to hospital policies and procedures that might potentially enhance the safety and quality of patient care [emphasis added]” (El Sugy affidavit, at para. 9), with the defendants having “brainstormed ideas…including potential changes to clinical policies and practices…[emphasis added]” (Sutandar affidavit, at para. 11). The February 22/17 consultation note of Dr. Sutandar (Porter) references “looking at perhaps changing [induction of labour] indications [emphasis added]”. Her notes reflect possible (rather than certain) changes under consideration.
8And in Taha, there were reporting and review processes used to foster a “culture of safety and accountability”, with staff and physicians being supported “within an open and transparent environment to report actual and potential safety incidents [emphasis added]”. There was also an Obstetrics Incident Analysis Team led by Dr. Meffe whose function was “to study, assess and evaluate the provision of health care with a view to improving or maintaining the quality of health care”--with no consideration of remedial or disciplinary action and with no assistance from third party experts (see Meffe affidavit at paras. 13 and 15). And there were Morbidity and Mortality rounds to which only members of the Obstetrics department were invited, and which were intended to be confidential. These rounds had as their goals the learning of lessons and the improvement of quality of care (on a go-forward basis).
9The defendants say that retrospective views shared as to the care provided by the defendants are irrelevant and would be inadmissible at trial. “No opinion should…be elicited from a medical doctor respecting the acts, omissions or judgment of other doctors, nurses or other hospital employees” (Motaharian v. Reid, [1989] O.J. No. 1947 (S.C.)); a physician’s after-the-fact opinion on the care provided “cannot have a semblance of relevance” (Tilstra v. Hospital for Sick Children, [2001] O.J. No. 3398 (S.C.J.), at paras. 6-7).
10Relying on ter Neuzen v. Korn, 1995 CanLII 72 (SCC), [1995] 3 S.C.R. 674, at para. 34, the defendants further posit that “the conduct of physicians must be judged in the light of the knowledge that ought to have been reasonably possessed at the time of the alleged act of negligence”, such that opinions formulated with the benefit of hindsight cannot assist the court in deciding whether the standard of care was met. That said, and in any event, according to Dr. Sutandar’s February 22/17 consultation note (Porter), the consensus at the case review “was that there was no negligence” and “that the course of care was appropriate”. And, in Ms. Taha’s case, no changes to hospital policy or procedures were recommended, assigned or actioned and no disciplinary action was taken against any of the involved physicians.
11Then too, the defendants submit that communications at or pertaining to a case review cannot be considered “remedial measures” in respect of which evidence might be deemed relevant. But even if potential remedial measures were canvassed at the case reviews here, discussion at a case review is not, in and of itself, a remedial measure. The defendants point out, fairly, that the cases of Sandhu v. Wellington Place Apartments, 2008 ONCA 215, Algoma Central Railway v. Herb Fraser and Associates (1988), 1988 CanLII 4740 (ON SC), 66 O.R. (2d) 330 (Div. Ct.) and Sutherland v. Sault Area Hospital, 2017 ONSC 736, on which the plaintiffs rely, reference actual remedial measures taken, adopted and/or enforced and not potential remedial measures discussed, contemplated and/or considered.
12And while it is true that the court in Sutherland v. Sault Area Hospital ordered the defendant physician to answer questions about what she told another physician about the care provided by her to the plaintiff in that case, the physician defendants here have already provided factual accounts of the care they provided—this by way of documentary and oral discovery.
13What the plaintiffs are now seeking is access to information imparted in the context of a hospital’s formal (but non-QCIPA) discussion about quality of care. In the case of Ms. Taha (by way of example), Dr. Meffe participated in the Incident Analysis Team meeting as Chairperson of the Committee (and not as a fact witness) and Dr. Brown participated in the Morbidity and Mortality rounds as a resident engaged in an educational review (again, not as a fact witness).
14I accept that these formal, but non-QCIPA, hospital discussions are intended to consider processes, policies and procedures in place with a view to having participants voice opinions that could lead to possible changes. This is distinct from their engaging in a factual recitation of events.
15That being so, and for the reasons set out above, I am inclined to agree with the defendants that, in the circumstances of the two cases now before me, the questions on which the plaintiffs have moved are irrelevant. But, in the event that I am wrong in this, I will consider the secondary basis on which the refusals are being maintained by the defendants. Specifically: The defendants submit that the communications here at issue are privileged, despite not having been made under QCIPA, such that the relief sought by the plaintiffs ought not to be granted.
Did QCIPA eliminate quality assurance privilege?
16Quality of Care Information Protection Act, 2004 (QCIPA 2004) was designed to encourage health care providers to share information about health care services furnished within their respective organizations—with a view to improving health care, without fear that the information shared would be used against them (QCIPA Review Committee, QCIPA Review Committee Recommendations, December 23/14). QCIPA 2004 restricts disclosure of quality of care information and documents with certain exceptions. QCIPA 2004 does not list patients and their families among those to whom disclosure is permitted.
17In 2008, Regulation 965 of the Public Hospitals Act, R.S.O. 1990, c. P.40, was amended to require the disclosure of “critical incidents”—facts/consequences/remedial steps recommended—to patients. Hospitals must also have a system for reviewing critical incidents for quality assurance purposes and must advise patients of any systemic steps being taken by them (the hospitals) to avert future similar critical incidents.
18In 2014, a committee was struck to review current practice in the interpretation and implementation of QCIPA 2004 “and its intersection with other related legislation”. The QCIPA legislation (“QCIPA”) was amended to clarify the types of information excluded from the definition of “quality of care information” (i.e. the types of information that will not be protected from disclosure). At about the same time, Regulation 965, also, was further amended to require additional disclosure in relation to critical incidents and to expand the disclosure to patients to include “a description of the cause or causes of the critical incident[s], if known”.
19The defendants say and, for the reasons that follow, I agree, that enactment of QCIPA legislation did not abrogate the common law case-by-case privilege. The defendants argue that common law privilege continues to be available, in an appropriate case (as here), to protect quality assurance information from disclosure. The plaintiffs take a contrary view.
20As a starting point, the defendants posit that neither Ms. Porter’s case nor that of Ms. Taha was designated as a “critical incident”. While it is true that the outcome in each case met the definition of “critical incident”, that does not end the inquiry they say (and I agree). The outcome (they argue) resulted primarily from the patients’ underlying medical conditions or from known risks inherent in the treatment provided them. Shoulder dystocia (which occurred in Ms. Porter’s case) is a known risk inherent in deliveries; uterine rupture (which occurred in Ms. Taha’s case) is a known risk of a trial of labour after a Caesarean section. Without expert evidence and with the hospitals’ compliance with Regulation 965 not now being under review, it is not for me to find that critical incident disclosure was here required.
21The defendants point out that nothing in the QCIPA rebuts the “presumption that the legislature does not intend to change existing law” (Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, 2003 SCC 42, 2003 S.C.C. 42, at para. 39). There is no “clear provision” in QCIPA that evinces an intention to alter pre-existing ordinary rules of common law. And, in enacting QCIPA, the legislature has not, “with irresistible clearness” or “unambiguously” expressed an intention to modify the common law; and, as such, the availability of common law privilege, subject to the Wigmore criteria, remains undisturbed (see: Slaight Communications Inc. v. Davidson, 1989 CanLII 92 (SCC), [1989] 1 S.C.R. 1038, at p. 1077; Goodyear Tire & Rubber Co. of Canada v. T. Eaton Co., 1956 CanLII 2 (SCC), [1956] S.C.R. 610, at p. 614).
22Further, the Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c.F. 31 was amended to apply to hospitals in 2012. The language of s. 18(1)(j) of FIPPA recognizes the continuation of common law quality assurance privilege for non-QCIPA quality of care reviews (i.e. as may relate to quality of care assessments and evaluations so as to improve care and services provided by a hospital). As the defendants say, “[t]he introduction of s. 18(1)(j) would not have been necessary if QCIPA 2004 was a complete code governing quality assurance privilege”. With this too, I agree.
23The defendants posit that “QCIPA provides for privilege in each instance where there is a formal quality of care committee, whereas common law quality assurance privilege is determined on a case-by-case basis for informal quality assurance information”. They say that the two can and do operate in tandem.
24The defendants point out, and I accept, that Ontario courts have recognized the importance of protecting quality assurance communications at common law, as articulated in Steep (Litigation Guardian of) v. Scott, 2002 CanLII 53248 (ON SC), [2002] O.J. No. 4546 at para. 8 (S.C.J.). Steep was relied upon in Redman v. Hospital for Sick Children (2010 ONSC 3769), decided 6 years after the enactment of QCIPA 2004.
25In Redman, the court made clear that QCIPA provides a class privilege for information that falls under the technical definitions of the Act, but does not preclude the application of case-by-case privilege for information outside of the Act. And, as the defendants point out: “Redman is not an outlier in deciding that common law quality assurance privilege can coexist with a more narrowly defined statutory assurance privilege” (see: Doyle v. Green, [1996] N.B.J. No. 553 (N.B.C.A.), Appeal Pursuant to Section 41 of the Freedom of Information & Protection of Privacy Act, SNS, 1993, c, 5, Re (1996), 1996 CanLII 7262 (NS SC), 137 D.L.R. (4th) 410 (N.S. S. C.)).
26And even if we are indeed dealing with critical incidents in the two cases—for which Regulation 965 under the Public Hospitals Act requires specific disclosure (i.e. even if the position taken by the defendants and accepted by the court is wrong: see paragraph 20, above), the defendants say, and I agree, this does not mean that “the gamut of communications at or pertaining to the case review[s]” needs to be shared by the defendant physicians through the discovery process.
Case-by Case Privilege: Wigmore Criteria
27The defendants submit that, in both actions, all four Wigmore criteria (Slavutych v. Baker, 1975 CanLII 5 (SCC), [1976] 1 S.C.R. 254) are satisfied, such that the information sought by the plaintiffs can be and is protected by privilege at common law. The information sought, they argue, is not “quality of care information” under QCIPA but is information protected by “quality assurance privilege”. I am persuaded by their argument.
28Why do I say this?
29The communications originated in a confidence that they would not be disclosed. In this regard, an email sent (Porter) to schedule the case review had as its subject line: Confidential: Clinical Case Review. The calendar invitation confirming the particulars of the case review identified the case review meeting as being “Privileged and Confidential” (Porter) and the Incident Analysis Team form was labelled “Privileged and Confidential” (Taha). Dr. El Sugy (Porter) confirmed expecting “that none of [his] comments, or those of any of the other participants, would be repeated outside of the case review, and that any documents concerning communications at the case review would likewise be kept confidential”. Dr. Brown (Taha) commented that those not invited to attend Morbidity and Mortality rounds were not permitted to attend.
30In the Taha case, the attendees at both review meetings formed part of a closed, defined group of persons. Dr. Meffe (Taha) deposed that participants expected that the case reviews would remain confidential and that their discussions would not be disclosed outside of the defined group of participants. Both Drs. Meffe and Brown (Taha) deposed that they understood that the review meetings were predicated on the understanding and belief that the contents of discussions and any written materials relating to the discussions were to be kept confidential and protected from disclosure (including to patients and their families).
31Confidentiality is essential to the full and satisfactory maintenance of the relation between the parties. As the court concluded in Steep (2002), 2002 CanLII 53248 (ON SC), 62 O.R. (3d) 173 (S.C.J.), at paras. 24-26: While quality assurance reviews will take place whether or not they are confidential, “the free exchange of information, promoted by confidentiality, goes to the very core of successful quality assurance reviews leading to the improvement of quality care”. As Drs. Sutandar and El Sugy (Porter) deposed: “[K]nowing that discussions at case reviews were not ‘off the record’ would have created a powerful disincentive…to participate fully and frankly” (Sutandar affidavit at paras. 14 and 15); “confidentiality was important…to the case review process generally…because it gave…participants the confidence to contribute candidly to the discussion without fear…” (El Sugy affidavit at para. 10).
32And as Ann Trafford, Vice President, Quality, Performance and Chief Information Officer at Unity Health Toronto (Taha) commented, the quality of care reviews, including opinions expressed and discussions held, “are all kept highly confidential to help foster the open, honest and consequence-free discussion that is so integral to quality improvement” (Trafford affidavit, at para. 25). Dr. Brown’s perspective as a resident participating in the Morbidity and Mortality rounds was that she would not have felt comfortable discussing cases that involved care provided by [her] and [her] peers if [she] believed the content of those discussions might be disclosed at some point beyond the confines of the meeting”. Confidentiality permitted (and permits) participants a “safe space” (affidavit of Dr. Brown, at paras. 12-13).
33The defendants submit, and I accept, that Hamulka v. Golfman (1985), 1985 CanLII 3146 (MB CA), 20 D.L.R. (4th) 540 (Man. C.A.) and Brown v. Capital District Health Authority, 2006 NSSC 348) on which the plaintiffs rely for the proposition that, absent confidentiality, case reviews will still take place and will not be any less useful are distinguishable as relating to regulatory investigations/regulatory investigative reports.
34In Hamulka v. Golfman, at issue were communications with an investigator. As the defendants point out, a health professional who does not participate fully and frankly in a regulatory investigation faces potential sanctions--whether their communications with the investigator are confidential or not. In a case review, a lack of candour and openness may never have consequences for the participants; but, a lack of confidentiality may have a chilling effect and dissuade participants from fully and frankly contributing to a case review dialogue which, in itself, may adversely impact quality of care, going forward.
35In Brown v. Capital District Health Authority, the court referenced the “responsibilities” of health professionals and considered the duty of nurses, either legal or ethical, to take steps to protect others against the “malfeasance” of other professionals. There is no such duty to participate or, indeed, contribute candidly to the discussion at a case review.
36The defendants say, and I agree, that accepting that QCIPA legislation abolished the common law quality assurance privilege, as the plaintiffs urge upon me, would disincentivize health care providers from engaging in full and frank discussions with a view to improving standards and quality of care.
37I do note, however, that the plaintiffs (Porter) point to the fact that Dr. Sutandar discussed the case review with Ms. Porter and her partner.
38Dr. Sutandar’s evidence is that she would not have informed other participants, all of whom expected that the case review would be a confidential process, that she planned to provide Ms. Porter and her partner with “a high-level overview”, i.e. no particulars and no specifics (with both particulars and specifics now being sought by the plaintiffs). One participant in the process, here Dr. Sutandar (Porter), would not have been empowered to compromise a privilege that protects other participants’ communications. There is nothing before me to suggest that anyone, but Dr. Sutandar, ever discussed the existence of the case review (let alone its contents) with persons outside of the hospital. And what was here discussed was so narrowly circumscribed (and general in nature) that I do not think that it derogates from the confidentiality of the case review process.
39The relation is one which, in the opinion of the community, ought to be sedulously fostered. The defendants argue, and I accept, that we (members of the community) desire improvement in the quality of our health care. Hospitals engage in different kinds of quality of care reviews to encourage learning and betterment of care. In the words of Ms. Geerlinks (Porter): “There is an overwhelming public interest in having…[quality of care review] staff meetings held on a confidential basis so that the flow of ideas and advice can continue unimpeded”. Dr. Sutandar (Porter) deposed that “knowing that discussions at case reviews were not ‘off the record’ would have created a powerful disincentive…to participate fully and frankly” (Sutandar affidavit, at para. 15).
40The defendants say, and I agree, that “denying confidentiality to case reviews…would diminish their utility”. “[T]he free exchange of information, promoted by confidentiality, goes to the very core of successful quality assurance reviews leading to the improvement of quality care” (Steep, supra, at para. 26). Drs. Meffe and Brown and Ms. Trafford (Taha) point out that the purposes of retrospective Incident Analysis Team reviews and Morbidity and Mortality rounds are to identify and consider possible systemic issues that may have contributed to an adverse patient outcome for educational purposes and to improve quality of care in future cases by brainstorming and discussing recommendations that can be actioned, reviewed and potentially implemented for the benefit of all.
41The injury that would inure to the relation by the disclosure of the communications is greater than the benefit granted for the correct disposal of litigation. In the two actions in which the motions have been brought, the hospital/medical records have been produced and those who are alleged to have been responsible for the plaintiffs’ respective injuries have been discovered.
42There is nothing before me to support the contention that the harm of disclosing communications at and/or pertaining to the confidential case reviews would be less than the benefit to the plaintiffs in the litigation. This is particularly so given that, in both Porter and Taha, there is no evidence that any actual policy or systemic changes resulted and, in the case of Taha, that any care recommendations were made
43Instead, and as the court concluded in Steep (supra, at para. 42), I accept that “substantial injury would result if quality assurance reviews were subject to disclosure. Disclosure would cause substantial injury to the flow of information among medical staff and accordingly reduce the effectiveness of quality assurance reviews”. Quality assurance reviews are necessary to inform efforts to continuously improve the quality of patient care.
Procedural Objections
44I would be remiss if I failed to reference a few procedural issues raised by the plaintiffs in the context of these motions. While informal requests were made in the course of argument that affidavits be struck pursuant to R. 25.11 or given no weight given that they (a) were late served and/or (b) appended, as exhibits, documents not listed in the defendants’ affidavits of documents, no adjournment of the motions was sought, though it could have been, and no cross-motion was before me. The defendants responded, variously, that no relevant documents were referenced that had not already been disclosed before the examinations for discovery herein and, to the extent that documents were appended to affidavits but not listed in affidavits of documents, it was because they were not considered relevant by the defendants. In the circumstances, I reviewed and considered all of the motion materials, filed.
45For all of the reasons set out above, the plaintiffs’ motions are denied--save that reattendances for discovery are permitted to examine on new documents/those refusals answered since these motions were brought.
46Failing agreement on the issue of costs, I may be spoken to. Unless an attendance before me, virtually or in writing, is requested by February 7, 2022, I will assume that that the issue of costs need not be considered by the court (as having been settled).
January 14, 2022 “Original Signed by Associate Justice Abrams”