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Newland v. North Country Healthcare, Inc.

United States District Court, D. New Hampshire

December 14, 2017

Jessica Newland, et al.
v.
North Country Healthcare, Inc., d/b/a Littleton Hospital Association; Littleton Regional Healthcare and North Country Women's Health

          Todd D. Schlossberg, Esq.

          Michael F. Hanley, Esq.

          Gregory G. Peters, Esq.

          Pierre A. Chabot, Esq.

          MEMORANDUM ORDER

          Joseph N. Laplante United States District Judge.

         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. The substance of that initial conversation, however, is not itself protected by the quality-assurance privilege. The court therefore grants the Newlands' motion.

         I. 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 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.” Id. § 151:13-a, I. 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 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.

         At the same time, “[i]ndividual forays into quality assurance are not privileged under the statute . . . .” Id. at 13. 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).

         II. 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 was. And I also wanted to just hear someone tell me we did everything we could have.”[3] She went on to characterize the ...


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