Evidentiary Privilege for Hospital Quality Assurance and Risk Management: Assessing Statutory Reform

Quality assurance (QA) and risk management (RM) programs originated relatively recently in Canadian hospitals. Associated with the increasingly institutional framework for the delivery of health care, their development has been stimulated by tougher standards for hospital accreditation., the expanded scope of hospital liability for medical malpractice, and direct government regulation. While these measures promise substantial advancement in patient safety and the quality of medical care, considerable concern has been voiced that their potential is frustrated by the unwillingness of medical personnel to participate wholeheartedly in such programs without clear guarantees of confidentiality for the deliberations and recommendations of QA and RM committees. Consequently, it has been suggested that such communication should be shielded in subsequent public disclosure. While widespread support among both medical and non-medical communities suggests the relatively uncontroversial nature of such statutory protection, careful examination reveals several issues demanding cautious legislative treatment. This comment advances specific recommendations for statutory protection of the quality assurance and risk management process by reviewing the current basis for evidentiary disclosure, exploring the reasons for evidentiary privilege generally and in the context of QA and RM, and applying this analysis to the design of a specific statutory rule to protect certain categories of QA and RM information from disclosure during malpractice actions.