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Richard M. Merrick, Md v. Littleton Regional Hospital

March 23, 2011


The opinion of the court was delivered by: Landya B. McCafferty United States Magistrate Judge


Dr. Richard Merrick, an emergency-department physician who has Tourette's Syndrome, asserts seven claims against his former employer and two of its employees. His complaint includes claims for disability discrimination under both the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101, et seq. (Count I), and section 354-A of the New Hampshire Revised Statutes Annotated ("RSA") (Count II). Merrick's claims arise from the circumstances leading to his departure from Littleton Regional Hospital ("the Hospital") in late 2009 or early 2010.

Before the court is Merrick's motion to compel the Hospital to provide certain information related to complaints filed against other emergency-department physicians in its employ. The Hospital objects, identifying concerns about relevance and citing New Hampshire's quality assurance privilege, RSA § 151:13-a. For the reasons given, Merrick's motion is granted in part and denied in part.


As described in Merrick's complaint, the factual background is as follows. Merrick has both attention deficit hyperactivity disorder ("ADHD") and Tourette's Syndrome, which causes motor and verbal tics. He began working for the Hospital's emergency department in 1999. His contract with the Hospital promised him a minimum of seven twenty-four-hour shifts per month. He also served as the medical director of the Hospital's Department of Occupational & Employee Health from 2002 until he was removed from that position in March of 2009.

In early August of 2008, while treating a patient with critical injuries and numerous complications, Dr. Merrick exhibited several tics that resulted from the stress associated with handing a difficult case.*fn1 Shortly thereafter, Merrick was told not to report to work, due to the Hospital's concerns about his fitness for duty, and the Hospital suspended Merrick from August 8 through August 22. After an investigation, the Director of the Hew Hampshire Professional Health Program reported her opinion that Merrick could return to emergency-room work without restriction, and that he did not require further monitoring from the program.

After the August 2008 incident, the Hospital placed Merrick under increased scrutiny. In January of 2009, the Hospital cut Merrick's hours in half by giving him twelve-hour shifts rather than twenty-four hour shifts. In August of 2009, the Hospital ordered Merrick to take a leave of absence, and then sent him for a week-long psychological evaluation at the Menninger Clinic.*fn2 That evaluation resulted in a recommendation that Merrick could return to work, so long as he did not work more than forty-eight hours per week and had no shifts longer than twelve hours. After Merrick returned from the Menninger Clinic, he remained on an involuntary leave of absence.

At that point, Merrick determined that the Hospital would not allow him to return to work, so he sought employment elsewhere. At one point, he applied for a temporary license to practice in Maine, but his application was never processed because the Hospital did not respond to a request for confirmation of his employment from the Maine licensing board. In mid December, Merrick gave the Hospital ninety days' notice that he was leaving to take a job in Vermont. In response, the Hospital offered to schedule Merrick for twelve-hour shifts, starting on January 1, 2010, and continuing until the date on which his new job was to commence. In making that offer, the Hospital asked Merrick to provide adequate assurance that he would comply with the recommendations of the Menninger Clinic and the New Hampshire Professional Health Program. This action followed.


Merrick's complaint includes claims for disability discrimination, based upon his Tourette's Syndrome and ADHD, under both federal and state law. In his second set of interrogatories, Merrick made the following request:

Identify all complaints against physicians in the emergency department at Littleton Regional Hospital during the past five (5) years. Describe in detail the circumstances of each, and the action taken by the Hospital to investigate. As to each incident, provide a detailed explanation of the consequences to the physician involved (e.g., whether a formal written reprimand resulted, administrative leave, or other consequence)."

Pl.'s Mot to Compel (doc. no. 14), at 1. Defendants responded:

Objection. The Complaint Management process at LRH is confidential and protected as a Quality Improvement activity under NH RSA 151:13-a, and privilege is claimed thereunder. Furthermore, any review of the quality of care provided by a physician is protected and confidential under NH RSA ...

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