Newland et al v. North Country Healthcare, Inc. et al
Filing
28
ORDER granting 20 Motion to Compel Deposition Testimony. Newland's motion to compel answers to questions regarding the content of Nurse Upson's conversation with Force is GRANTED. So Ordered by Chief Judge Joseph N. Laplante.(jb)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Jessica Newland, et al.
v.
Civil No. 16-cv-547-JL
Opinion No. 2017 DNH 251P
North Country Healthcare, Inc.,
d/b/a Littleton Hospital Association;
Littleton Regional Healthcare and
North Country Women’s Health
MEMORANDUM ORDER
This discovery dispute arises in the context of a medical
negligence and wrongful death case following the traumatic
delivery and subsequent death of Prezlie Newland at Littleton
Regional Hospital.
Her parents, plaintiffs Jessica Newland and
Phillip Newland, move the court to compel defendant Littleton’s
employee, Jessica Upson, to answer deposition questions
regarding the conversation she had with her supervisor, Kim
Force, following the delivery.
At her deposition, Nurse Upson
declined to answer questions upon counsel’s instruction, on the
basis that New Hampshire’s “quality-assurance privilege”1
protects the substance of her conversation with Force from
discovery.
1
The substance of that initial conversation, however,
N.H. Rev. Stat. Ann. § 151:13-a.
is not itself protected by the quality-assurance privilege.
The
court therefore grants the Newlands’ motion.
Applicable legal standard
Littleton Hospital asserts the quality-assurance privilege
over Nurse Upson’s communications with Force.
As the party
asserting the privilege, Littleton Hospital bears the burden of
establishing its application to the communications in question
by “set[ting] forth facts sufficient to establish all the
elements of the claimed privilege.”
In re Grand Jury
Proceedings, 183 F.3d 71, 73 (1st Cir. 1999) (discussing burden
for establishing psychotherapist-patient privilege); cf. Hampton
Police Ass'n, Inc. v. Town of Hampton, 162 N.H. 7, 14 (2011)
(“The burden of proving whether information is confidential,”
and thus protected from New Hampshire’s Right-to-Know Law,
“rests with the party seeking nondisclosure”); State v. Gordon,
141 N.H. 703, 705 (1997) (burden of proving existence of
attorney-client privilege lies with the asserting party).
The quality-assurance privilege is established by N.H. Rev.
Stat. Ann. § 151:13-a, II, which provides:
Records of a hospital committee organized to evaluate
matters relating to the care and treatment of patients
or to reduce morbidity and mortality and testimony by
hospital trustees, medical staff, employees, or other
committee attendees relating to activities of the
quality assurance committee shall be confidential and
privileged and shall be protected from direct or
indirect means of discovery, subpoena, or admission into
2
evidence in any judicial or administrative proceeding.
However, information, documents, or records otherwise
available from original sources are not to be construed
as immune from discovery or use in any such civil or
administrative action merely because they were presented
to a quality assurance program, and any person who
supplies information or testifies as part of a quality
assurance program, or who is a member of a quality
assurance program committee, may not be prevented from
testifying as to matters within his or her knowledge,
but such witness may not be asked about his or her
testimony before such program, or opinions formed by him
or her, as a result of committee participation.
The statute further clarifies that “records,” in this context,
include “records of interviews and all reports, statements,
minutes, memoranda, charts, statistics, and other documentation
generated during the activities of a quality assurance
committee,” but do not include “original hospital medical
records or other records kept relative to any patient in the
course of the business of operating a hospital.”
a, I.
Id. § 151:13-
The privilege is “to be narrowly construed.”
In re K,
132 N.H. 4, 13 (1989).
In the sole New Hampshire case addressing the scope of this
privilege,2 a hospital’s nurse epidemiologist conducted an
In State v. Soucy, 139 N.H. 349, 355 (1995), the New Hampshire
Supreme Court addressed the circumstances under which a hospital
may waive the privilege. In another case, Judge Barbadoro
concluded that a statutory exception prevents the privilege from
applying to “litigation challenging a hospital’s decision to
revoke a physician’s staff privileges.” Smith v. Alice Peck Day
Mem’l Hosp., 148 F.R.D. 51, 55 (D.N.H. 1993). Neither of those
cases, however, presented a dispute over whether the
2
3
investigation into the possible origins of the herpes infection
contracted by a patient, “K.” In re K, 132 N.H. at 5-6.
The
investigation “included a test of K’s blood, interviews with K’s
two treating physicians and the head of the maternity nursing
unit, and an examination of K’s medical record.”
Id. at 6.
The
epidemiologist subsequently reported her findings to the
“Infections Committee.”
When the infected patient sought access
to the results of the investigation, the hospital denied the
request, claiming privilege under § 151:13-a.
Agreeing with the
hospital, the New Hampshire Supreme Court held that the
privilege protected the epidemiologist’s report to the
Infections Committee, and that committee’s minutes.
Id. at 5.
The Court concluded that the statutory privilege protects
the activities of any hospital committee that fulfills the
functions set forth in § 151:13-a, II -- that is, a committee
“organized to evaluate matters relating to the care and
treatment of patients or to reduce morbidity and mortality.”
Id. at 8-9.
Thus, though the hospital may also have organized a
more formal “quality-assurance committee,” the privileged
protected reports to and the minutes of the Infections Committee
because it fulfilled that function.
Id. at 12-13.
communications at issue were protected as being created in
connection with the activities of a quality-assurance committee.
4
At the same time, “[i]ndividual forays into quality
assurance are not privileged under the statute . . . .”
13.
Id. at
The Court articulated a two-part test to determine whether
the epidemiologist’s activities leading to her report to the
committee, “should be treated as a source of privilege for the
resulting materials.”
Id. at 13.
Under that rubric, the
statute protects records resulting from an employee’s
investigation when (1) the inquiry is “confined to the object of
quality assurance,” and (2) the investigator is “authorized to
act on the [quality-assurance committee’s] behalf.”
Id. at 13.
Because the epidemiologist “was a member of the committee in her
own right” and the hospital “expressly ‘delegated’ immediate
responsibility for the performance of the Infections Committee’s
duties to . . . ‘the Nurse Epidemiologist,’” among others, her
report was “‘generated during the activities of a quality
assurance committee’” and, thus, privileged.
Id. at 14
(internal citations omitted).
Background
Nurse Upson provided care during Prezlie’s birth.
At the
end of the shift during which Prezlie was delivered, Nurse Upson
sought out Force, her supervisor, to discuss the events of the
night.
As she explained at her deposition, “[t]he next morning
I just kind of broke down with her, just to -- how emotional it
5
was.
And I also wanted to just hear someone tell me we did
everything we could have.”3
She went on to characterize the
conversation as “nurse-to-supervisor discussion in a safe place
where I felt I could break down about the night before.”4
When the Newlands’ counsel inquired into the substance of
the conversation, the defendants’ counsel instructed Nurse Upson
not to answer, asserting that the quality-assurance privilege
protects the conversation.5
The Newlands then moved to compel
answers to questions regarding the substance of Nurse Upson’s
conversation with Force, arguing that the conversation is not
protected by the privilege because Force was not part of, or
acting on behalf of, any quality-assurance committee at
Littleton Hospital at the time of the conversation in question.
III. Analysis
The question before the court is whether the qualityassurance privilege established by § 151:13-a, II, as
interpreted by In re K, protects Nurse Upson’s conversation with
Force.
Littleton Hospital argues that Force was acting on
Plaintiffs’ Mem. (doc. no. 20-1) at 5 (quoting Upson Dep. 74:912).
3
4
Id. at 7 (quoting Upson Dep. at 78:19-21).
5
Id. at 8 (quoting Upson Dep. at 95:1-7).
6
behalf of the hospital’s quality-assurance committee6 during her
conversation with Nurse Upson because she was acting in
accordance with the hospital’s “Sentinel Event and Root Cause
Analysis” policy, rendering that conversation subject to the
privilege.
The Newlands argue to the contrary, that Nurse
Upson’s conversation with Force does not fall within the
statute’s protection for records of quality control committees
and “testimony . . . relating to” such a committee’s activities,
§ 151:13-a, II, regardless of whether Force acted in accordance
with Littleton Hospital’s policy.
The court agrees with the
Newlands.
The statute provides that only the “[r]ecords of a hospital
committee” organized for the purposes outlined in the statute,
and “testimony . . . relating to activities of the quality
assurance committee shall be confidential and privileged and
shall be protected from direct or indirect means of discovery,
subpoena, or admission into evidence in any judicial or
administrative proceeding.”
II.
N.H. Rev. Stat. Ann. § 151:13-a,
In light of their responsibilities set forth in the policy,
Littleton Hospital’s Quality Committee and Sentinel Event Review
Littleton’s policy refers to the quality-assurance committee as
the “Quality Committee.” Obj. Ex. A (doc. no 22-2) ¶ III(I). A
second quality-assurance committee, a Sentinel Event Review
Team, may also be constituted under certain circumstances. Id.
¶ VI(C), (D).
6
7
Teams may constitute committees “organized to evaluate matters
relating to the care and treatment of patients or to reduce
morbidity and mortality,” rendering its records and testimony
before it protected by the quality-assurance privilege.7
Id.
Littleton Hospital asserts that the conversation between
Nurse Upson and Force is a record of one or both of these
committees in the same sense as the nurse epidemiologist’s
activities in conducting her independent investigation in
In re K.8
To establish that the privilege protects this
conversation from discovery, Littleton Hospital must demonstrate
that the conversation was (1) “confined to the object of quality
assurance,” and (2) Force was “authorized to act on the
[quality-assurance committee’s] behalf.”
132 N.H. at 13.
Littleton Hospital has satisfied its burden on neither point.
As to the first, the quality-assurance privilege does not
protect Nurse Upson’s conversation with Force because the
See, e.g., Obj. Ex. A (doc. no. 22-2) ¶¶ III(I), IV(C), IV(D),
IV(G). Though the Newlands dispute this point in a single
sentence in a footnote in their reply memorandum, see Reply
(doc. no. 23) at 3 n.4, the court is satisfied that these
committees may, when performing the function of a “qualityassurance committee” as outlined by N.H. Rev. Stat. Ann.
§ 151:13-a, act as such committees. The court need not make a
definitive determination here, however, because, as discussed
infra, Force was not acting on behalf of either committee during
the conversation that is the subject of this motion.
7
8
See Obj. (doc. no. 22) at 5; Surreply (doc. no. 26) at 2.
8
conversation was not an inquiry “confined to the object of
quality assurance.”
The nurse epidemiologist of In re K
affirmatively undertook her investigation after hearing from K’s
husband, also a hospital employee, about unsanitary conditions
present during K’s stay at the hospital.
Id. at 6-7.
That
formal inquiry included a blood test, interviews with treating
physicians and the head of the maternity nursing unit, and an
examination of K’s medical record.
Id. at 6.
In contrast, the conversation here was not undertaken by
Force on her own initiative for any particular purpose.
It was,
instead, initiated by Nurse Upson, who was seeking emotional
support from her supervisor following a difficult shift.9
Nurse
Upson herself characterized the conversation as a “nurse-tosupervisor discussion in a safe place where I felt I could break
down about the night before.”10
Even if Force followed up with
questions aimed at identifying possible issues requiring the
attention of the Quality Committee, the conversation was not
confined to the object of quality assurance.
Where Littleton
Hospital would compare this conversation to the nurse
epidemiologist’s investigation in In re K, it more closely
Plaintiffs’ Mem. (doc. no. 20-1) at 5, 7 (quoting Upson Dep.
74:9-16, 78:19-21).
9
10
Id. at 7 (quoting Upson Dep. 78:19-21).
9
resembles K’s husband’s report of conditions to the nurse
epidemiologist, which spurred her investigation -- and which was
not protected by the privilege.
See In re K, 132 N.H. at 6.
Nor has Littleton Hospital established that Force was
authorized to make such inquiries on the Quality Committee’s
behalf, either explicitly or implicitly.
Though Littleton
Hospital’s Sentinel Event and Root Cause Analysis policy
contains an affirmative delegation akin to the nurse
epidemiologist’s in In re K, it designates the hospital’s Chief
Administrative Officer to act on the Quality Committee’s behalf.
That designation does not include Force.
11
Littleton Hospital
therefore argues that the conversation was privileged solely
because “Force was specifically acting to carry out the Sentinel
Event and Root Cause Analysis policy,” which was approved by the
Quality Committee.12
Obj. Ex. A (doc. no. 22-2) ¶ III(I) (“The Quality Committee
designates the Chief Administrative Officer to act on its behalf
in the initiation, review and analysis of Root Cause
Analyses/Sentinel Events.”).
11
Obj. (doc. no. 22) at 3. See also Bergen-Buteau Aff’t (doc.
no. 22-1) ¶ 9 (“Nurse Force was not conducting an individual
inquiry into quality assurance when she spoke to Nurse Upson -—
she was required by Hospital Policy to conduct a preliminary
investigation to determine what next steps may be necessary in
the quality assurance process, pursuant to a Hospital policy
approved by the Quality Committee.”).
12
10
Mere compliance with a policy “approved by” a qualityassurance committee does not, however, amount to affirmative
delegation of authority under the statute or In re K.
While
internal policies may help the court determine whether a
quality-assurance committee exists and whether an employee may
act on its behalf, protection from discovery will not be
extended to “all information,” for example, simply because a
policy states as much.13
The statute and the New Hampshire
Supreme Court’s interpretation thereof, not the hospital’s
policy, delineate the contours of the privilege.
Even if such compliance with the policy constituted
authorization, Force’s obligations under the policy at the time
that Nurse Upson sought to unburden herself do not implicate the
express, statutorily-defined function of a quality-assurance
committee’s protected activities -- that is, “evaluat[ing]
matters relating to the care and treatment of patients or to
reduce morbidity and mortality.”
a, II.
N.H. Rev. Stat. Ann. § 151:13-
Seeking to establish that her activities implicated this
function, Littleton Hospital contends that the Quality Committee
authorized Force’s inquiry because, by questioning Nurse Upson
about Prezlie’s delivery, she complied with the policy’s
Obj. Ex. A (doc. no. 22-2) ¶ III(J) (“All information will be
considered protected from discovery as part of the quality
review process of the hospital.”).
13
11
requirement that immediate supervisors “[i]nvestigate and verify
that a Sentinel Event or potential Sentinel Event has taken
place.”14
The same policy, however, also places the
responsibility for “identify[ing] suspected or identified
Sentinel Event[s]” on “[a]ll [p]ersonnel”15 and provides that,
“[w]hen an adverse outcome or Sentinel Event is identified or
suspected, the staff person(s) involved must immediately notify
their immediate supervisor.”16
In light of this broad
distribution of responsibility for identifying and reporting
Sentinel Events, if compliance with this provision of the policy
alone sufficed to authorize the hospital’s employees to “act on
behalf of” the Quality Committee, virtually every conversation
between hospital employees about a Sentinel Event, whether
actual or potential -- including even conversations between
lower-level personnel to ascertain the facts underlying an event
to determine if such a reportable event took place -- would
constitute an action of the Quality Committee and be protected
from discovery.
Such a broad interpretation of authority runs
Obj. Ex. A (doc. no 22-2) ¶ IV(B)(1). The policy defines a
“Sentinel Event” as “an unexpected occurrence or variation in
procedure or technique involving death or serious physical or
psychological injury that significantly delays healing process,
or the risk thereof.”
14
15
Id. ¶ IV(A).
16
Id. ¶ VI(A).
12
afoul of the “the general rule,” specifically applied to the
quality-assurance privilege by the New Hampshire Supreme Court,
“that such privileges are to be narrowly construed.”
132 N.H. at 13.
In re K,
It would broaden the statutorily-created
quality-assurance privilege beyond what its language supports in
that it would allow hospitals to craft “quality-assurance
polices” that render confidential nearly all records and
communications about adverse or potentially adverse events.
Since neither the statutory language nor the New Hampshire
Supreme Court’s pronouncements in In re K suggest the broad
interpretation of the privilege advanced by the defendants, the
question arises whether the facts of In re K allow an inference
that the privilege applies here.
They do not.
In that case,
the nurse epidemiologist was “a member of the [qualityassurance] committee in her own right” and was expressly
“delegated immediate responsibility for the performance of [its]
duties . . . .” In re K, 132 N.H. at 14.
Force, on the other
hand, was not a member of any constituted quality-assurance
committee at the time of her conversation with Nurse Upson.
Littleton Hospital has not asserted that Force was, at the time,
a member of the Quality Committee itself, which “has the
responsibility for oversight of the Sentinel Event/Root Cause
13
Analysis process and its investigation of mortality/morbidity.”17
Though she may subsequently have become a member of the Sentinel
Event Review Team for this event,18 Littleton Hospital conceded
at oral argument that such a team had not yet been constituted
at the time of Force’s conversation with Nurse Upson.
Force’s
subsequent participation in the Sentinel Event Review Team’s
activities does not retroactively protect her conversation with
Nurse Upson, held at a time when Force was neither a delegate
nor a member of the team or of the Quality Committee.
The limited nature of Force’s responsibilities under the
policy as a potential, but not yet actuated, member of the
Sentinel Event Review Team further indicates that she was not
“immediately responsible” for that committee’s duties, as the
nurse epidemiologist was in In re K.
The latter had immediate
responsibility for the Infections Committee’s duties when she
17
Obj. Ex. A (doc. no. 22-2) ¶ IV(G).
Pursuant to the policy, “[a]ny event that appears that it is
going to result in serious injury or disability must be reported
to the Chief Executive Officer (or Administrator on Call) and
the Chief Administrative Officer/Risk Manager as soon as there
is knowledge of the event occurring.” Id. ¶ III(C). That
officer then “make[s] the determination after any preliminary
investigation of an event being a probable Sentinel Event . . .
.” Id. ¶ III(D). Once that determination is made, that officer
“will arrange a Sentinel Event Review Team meeting. The meeting
will include the staff involved in the event.” Id. ¶ VI(B); see
also id. ¶ IV(D)(4) (members of a Sentinel Event Review Team
include “other staff involved in occurrence as appropriate and
at the discretion of the team leader”).
18
14
was explicitly charged with investigating “the origins of
infections that might arguably have been communicated within the
hospital.”
In re K, 132 N.H. at 6.
Her activities were for the
“purpose of analyzing prior treatment for the sake of
understanding the hospital’s practices and judging their
quality.”
Id. at 13.
In contrast, at the time Nurse Upson
sought her out and unburdened herself, Force was not, as the
Sentinel Event Review Team would be, responsible for searching
for “contributing factors” or “factors fundamentally responsible
for the event.”19
In fact, there is no evidence before this
court that Force was even aware of the event before Nurse Upson
sought her out following the delivery.
Force was required only
to “investigate and verify that an event occurred and notify the
Chief Executive Officer (or Administrator on Call) and the Chief
Administrative Officer/Risk Manager immediately.”20
That
obligation only arose once Nurse Upson had notified her of the
event.
More importantly, that undertaking -- verifying an
event’s occurrence and notifying the appropriate authorities -precedes any action by the Sentinel Event Review Team (which had
not yet been constituted) or the Quality Committee under the
19
Id. ¶ VI(D).
20
Id. ¶ IV(B).
15
terms of the policy. Force could not, therefore, have undertaken
the conversation on either committee’s behalf.
IV.
Conclusion
The contours of the quality-assurance privilege are defined
by statute, as interpreted by the New Hampshire Supreme Court,
not by Littleton Hospital’s internal policy.
Force’s
conversation with Nurse Upson does not amount to a record of or
testimony before a quality-assurance committee, under either the
statute or the Court’s extrapolation in In re K, regardless of
her compliance with Littleton Hospital’s internal policy -which would not render the conversation privileged even if it
controlled.
Newland’s motion to compel answers to questions
regarding the content of Nurse Upson’s conversation with Force21
is, therefore, GRANTED.
SO ORDERED.
Joseph N. Laplante
United States District Judge
Dated:
cc:
21
December 14, 2017
Todd D. Schlossberg, Esq.
Michael F. Hanley, Esq.
Gregory G. Peters, Esq.
Pierre A. Chabot, Esq.
Doc. no. 20.
16
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