Overcoming the Quality Assurance Privilege in New Hampshire Medical Malpractice Claims

I. Introduction:

New Hampshire’s statutory privileges are strictly construed and are not to be extended beyond the text of the legislative enactment. Nevertheless, defendants in medical negligence cases frequently withhold important documents based on an overly-expansive view of the quality assurance privilege. A careful examination of New Hampshire’s statutory quality assurance privileges establishes that they are really quite limited in scope and that they apply to a very limited set of materials.

II. New Hampshire Privilege Law:

When the rules of evidence were adopted in New Hampshire the decision was made to limit privileges to those expressly set forth in the constitution, statutes, and court rules.1 As a result, there is no such thing as a common law privilege in New Hampshire.2 The abrogation of common law privileges means that there are explicit, written limits to the scope of the information that may be withheld in reliance on each. Those written limits must be strictly construed.3 Privileges are strictly construed because they interfere with the search for the truth.4 The burden of establishing the application of the privilege is placed squarely on the party asserting it.5

III. New Hampshire’s Quality Assurance Statutes:

The New Hampshire Legislature has enacted a variety of statutory quality assurance privileges applicable to health care providers. They include privileges applicable to:

  1. Hospitals6;
  2. Ambulatory Care Clinics7;
  3. Nursing Homes8;
  4. Home Health Care Providers9; and
  5. Community Mental Health Centers.10

The most frequently cited quality assurance privilege is the one applicable to hospitals. There are several distinct elements to the statute. First, it only applies to “a hospital committee organized to evaluate matters relating to the care and treatment of patients or to reduce morbidity and mortality.”11 Second, it only protects 1) records generated by such a committee; and 2) testimony by hospital trustees, medical staff, employees, or other committee attendees relating to activities of the committee.12

Our Supreme Court has emphasized that the privilege afforded by the hospital quality assurance statute is not unlimited; it is confined to the records and testimony explicitly described therein.13 Thus, in order for the hospital privilege to apply, the discovery that is sought must be a record of a qualified committee, or testimony relating to such a committee’s activities.

The first question is whether the committee at issue constitutes a quality assurance committee under the terms of the statute. Our Supreme Court has described the quality assurance function envisioned by the statute as “an essentially retrospective process based on the analysis of what has already been done, for the purposes of providing instruction and deriving standards to be applied in future cases.”14 According to the Court, the statute “plainly conditions the privilege on the existence of a committee structure organized to perform [this function].”15 Thus, the threshold question is whether the discovery at issue pertains to the activities of a hospital committee organized to analyze what has already been done for the purposes of providing instruction and deriving standards to be applied in the future. The legislative history of the statute reveals that even its proponents agreed that “judgments regarding the quality of care in an individual case would in no way be restricted.”16

The second question is whether the discovery being withheld constitutes a record of the committee or testimony by one of the enumerated individuals relating to activities of the committee. The term “records” is defined in the statute to mean “records of interviews and all reports, statements, minutes, memoranda, charts, statistics, and other documentation generated during the activities of a quality assurance committee.”17 Thus, for a document to be covered by this provision it must have been “generated” during the activities of a quality assurance committee. Accordingly, the committee must have caused the document to be “brought into existence.”18

Our Supreme Court has explained that “[i]ndividual forays into quality assurance are not privileged under the statute.”19 A bright-line distinction can therefore be drawn between materials created by the quality assurance committee and materials it merely relies upon. The committee cannot turn a nonprivileged document into a privileged one simply by taking it into consideration. Put another way, the committee does not have the “Midas touch.”20

An example of this distinction is found in the treatment of “incident reports.” Such documents are administratively filed after a bad result and are often reviewed by the quality assurance committee. Nevertheless, courts generally find them to be outside the scope of the privilege since they are created in the normal course of business and are not generated by the committee.21

Aside from “records” of the committee, the statute also protects from discovery testimony by hospital trustees, medical staff, employees, or other committee attendees relating to activities of the committee. The phrase “or other committee attendees” appears to require attendance at a committee meeting as a prerequisite to the application of the privilege. It follows that the only thing protected by this provision is the testimony of a committee meeting attendee relating to the committee’s activities at that meeting.

Our Supreme Court appears to have recognized an exception to the quality assurance privilege. In a case construing the now-repealed HMO quality assurance statute, the Court declined to squarely decide the issue, but it observed that “there are occasions in which even the most sacred of privileges must fall, such as when there is no available alternative source for the information and there is a ‘compelling need for the information.'”22 This appears to signal the Court’s belief that each of the statutory quality assurance statutes is subject to an exception for materials that are essential to the patient’s case.23

Despite the limits that are obvious in the terms of the statute, the quality assurance privilege is typically used as a blanket objection to discovery requests in medical negligence suits. Two areas in which it is frequently misused are described below.

IV. Credentialing Materials:

Hospitals are constantly asserting the quality assurance to justify withholding credentialing materials. There is no statutory “credentialing” privilege in New Hampshire. Had the Legislature intended to protect the proceedings of a hospital credentialing committee it would have done so explicitly. Instead, in enacting the hospital quality assurance privilege, the Legislature only protected the proceedings of hospital committees investigating patient treatment concerns. This is clear from its choice to limit the privilege to records generated by a committee whose role is to either “evaluate matters relating to the care and treatment of patients” or to “reduce morbidity and mortality.”24

Our Supreme Court has described the quality assurance function envisioned by the statute as “an essentially retrospective process based on the analysis of what has already been done, for the purposes of providing instruction and deriving standards to be applied in future cases.”25 The Court has emphasized that the privilege granted by the hospital quality assurance statute applies only to a committee performing this function.26

A hospital’s credentialing committee is simply not the type of committee described in the statute. A credentialing committee does not analyze what has already been done, nor is its purpose to provide instruction or derive standards to be applied in future cases. It merely decides whether a practitioner is qualified to practice in the hospital. In light of New Hampshire’s “traditionally limiting approach to privilege claims,”27 the Legislature was required to either name credentialing committees explicitly or define the quality assurance function more broadly if it had intended to enact a credentialing privilege.

Judge Brennan recently ordered Catholic Medical Center to produce a physician-defendant’s credentialing file in a medical malpractice case. In doing so, he rejected the hospital’s argument that the file was protected by the hospital quality assurance privilege.28 Judge Brennan distinguished the credentialing committee from the type of quality assurance committee envisioned by the statute and concluded that “if the Legislature had intended that the substantially different activities of credentialing committees be privileged under the statute – those words would have been included in the statute.”29

Judge Brennan’s ruling reflects the proper functioning of the separation of powers between the judicial branch and the legislative branch. When construing an existing statute, such as the hospital quality assurance statute, our Supreme Court has emphasized that

the question . . . is not what the legislature ought to have done when it enacted this statute but what it did, as expressed in the words of the statute itself. Nor is it for [the] Court to add terms to the statute that the legislature did not see fit to include. It is not our function to speculate upon any supposed intention not appropriately expressed in the Act itself. Relief “from its inappropriateness” must be sought through further legislative action.30

An example of this is the recently enacted home health care providers quality assurance privilege. In 1997, Judge Groff ruled that the Visiting Nurses Association was not covered by a statutory quality assurance privilege.31 In an apparent response to this ruling, the visiting nurses were able to convince the Legislature to enact the Home Health Care Providers Quality Assurance privilege, which became effective less than a year after Judge Groff’s order.32

Even if credentialing materials were covered by the text of the hospital quality assurance statute, they would nevertheless present a strong case for the application of the “compelling need” exception that has been recognized by our Supreme Court. Under the exception, privileged documents are discoverable “when there is no alternative source for the information and there is a compelling need for the information.”33 It seems obvious that credentialing information is essential if a plaintiff is to be able to prove that a hospital was negligent in permitting a physician to practice at its facility.

An interpretation of the hospital quality assurance statute that immunized credentialing documents from discovery would not only constitute an unwarranted extension of the language of the statute, it would also render the statute unconstitutional. Equal protection analysis under part I, articles 2 and 12 of the state constitution generally requires only that a classification created by a statute be rationally related to a legitimate legislative purpose. However, when the statute interferes with the constitutionally guaranteed right to recover for personal injuries,34 its constitutionality is subject to the significantly more rigorous middle-tier scrutiny.35

Under middle-tier scrutiny, where similarly situated persons are treated differently, the classification created by the statute must be reasonable, it must not be arbitrary, and it must differentiate in a manner having a fair and substantial relation to the object of the statute.36 If the hospital quality assurance statute is construed to prohibit discovery of credentialing documents, it would effectively deprive the plaintiffs of a cause of action for negligent credentialing. However, this consequence does not have a substantial relation to the object of the statute.

As our Supreme Court has determined, the purpose of the statute is to facilitate retrospective analysis of what has already been done, for the purposes of providing instruction and deriving standards to be applied in future cases.37 More specifically, “[t]he reason for seeking enactment of [the quality assurance privilege], and its counterparts in other jurisdictions, was the natural reluctance of hospital employees and staff members to engage in such evaluation after the fact, by furnishing information and voicing critical judgments, if in so doing they would also be compiling a fund of material discoverable by adverse parties in any subsequent litigation against the hospital.”38

The extinguishment of a negligent credentialing cause of action would not serve to further the purpose of the statutue – to permit hospitals to analyze their treatment errors and plan ways to avoid repeating them. Credentialing and retrospective quality assurance are simply two different things. In light of the constitutional guarantee of a remedy for personal injuries, the negligent credentialing cause of action cannot be sacrificed by legislation when the purpose of that legislation is unrelated to, and unaffected by, the credentialing process. In short, credentialing claims and vigorous, retrospective quality assurance can easily coexist.

V. Personnel Files

Superior Court judges have uniformly ruled that documents within a medical care provider’s personnel files are discoverable in medical malpractice litigation and are not covered by the quality assurance privilege. For example, in Lanoue v. St. Joseph Hospital,39 Judge Groff granted the plaintiffs’ motion to compel and ordered the defendant hospital to produce copies of all documents in certain nurses’ personnel files which related to their work history and job performance.

Similarly, in Nichols v. DePierro,40 Judge Morrill ordered the defendant hospital to produce copies of performance evaluations of two physicians. Judge Fitzgerald recently ordered the defendant hospital in a medical negligence case to produce copies of all information contained in two doctors’ personnel files related to their work history and job performance.41 And, in Weidner v. Edwards,42 Judge Nadeau ordered the defendant group practice to produce all information contained in the defendant nurse midwife’s personnel file that related to her work history and job performance.

VI. Privilege Logs:

It should be apparent from the foregoing that, in order for a quality assurance privilege claim to be properly decided, it is essential for both the parties and the court to have some information about the documents that are being withheld. In the federal courts, parties withholding documents are required to “describe the nature of the documents, communications, or things not produced or disclosed in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the applicability of the privilege or protection.”43 The trial courts in this state should require the same when a quality assurance privilege is asserted.

In Union Leader Corporation v. New Hampshire Housing Finance Authority44, our Supreme Court discussed the importance of identifying documents that are being withheld from production under the Right to Know law. In that case, the party withholding the documents had been ordered to prepare an index describing each document and setting forth the justification for its nondisclosure.45 The Court explained that the requirement of such an index “safeguards the adversary process in a setting where one party, the party resisting disclosure, has exclusive control of vital information . . .”46

According to the Court, the index is beneficial to all involved: It forces the party withholding the documents to carefully analyze the documents at issue and the privilege it is claiming; it assists the Court in ruling on the validity of the withholding party’s position; and it assists the requesting party by giving him as much information as possible so that he can present a meaningful argument to the Court.47

The Court wrote that a party requesting documents under the Right to Know law is entitled to an index that contains “a relatively detailed justification, specifically identifying the reasons why a particular exemption is relevant and correlating those claims with the particular part of a withheld document to which they apply.”48 On the other hand, an index which states the legal basis for withholding a document, but fails to provide a factual reference that would enable the court to determine whether the exemption applies, is inadequate.49 If a document is inadequately described, the trial court may summarily order that it be produced. to the requesting party.50

Although Union Leader Corporation was decided in the context of New Hampshire’s Right to Know law, the principles announced in the decision apply with equal force where a party to a civil lawsuit has unilateral control over an important document which it claims is privileged. Medical negligence litigants should, therefore, be ordered to produce a similar index or privilege log identifying each of the documents that is being withheld.

VII. Conclusion:

The quality assurance privilege is being misused by medical care providers as a means of avoiding the production of harmful discovery. The courts in this state should continue to apply the privilege only to those committees and documents identified by the legislature in the text of the privilege statutes. Doing so furthers the basic purpose of discovery which is to provide full disclosure to encourage the fair and efficient resolution of cases.51


  1. See N.H.Evid.R. 501.
  2. Rule 501 applies to abrogate common law privileges in federal district court diversity cases as well. See Fed.Evid.R. 501 (state law applies to privilege disputes in diversity cases, while federal common law governs in federal question cases).
  3. See Marceau v. Orange Realty, Inc., 97 N.H. 497, 499-500 (1952) (In the absence of “a clear legislative mandate,” existing privileges will not be broadened.).
  4. See United States v. Nixon, 418 U.S. 683, 710 (1974).
  5. See 81 Am. Jur. 2d Witnesses §141 (1976).
  6. R.S.A. 151:13-a.
  7. R.S.A. 151:D:2.
  8. R.S.A. 151-A:16.
  9. R.S.A. 151:13-b.
  10. R.S.A. 135-C:63-a.
  11. R.S.A. 151:13-a, II.
  12. See id.
  13. See In re K, 132 N.H. 4, 15 (1989).
  14. Id., 132 N.H. at 10.
  15. See id., 132 N.H. at 15.
  16. Statement of Gerald Homer, Associate Administrator of Nashua Memorial Hospital on behalf of H.B. 842 (House Committee on Health and Welfare, April 20, 1981).
  17. R.S.A. 151:13-a, I.
  18. The American Heritage Dictionary of the English Language at 549 (1981).
  19. In re K, 132 N.H. at 13.
  20. Id., 132 N.H. at 14.
  21. See Cochran v. St. Paul Fire & Marine Insurance Company, 909 F.Supp. 641 (W.D.Ark. 1995); Dunkin v. Silver Cross Hospital, 573 N.E.2d 848 (Ill.App. 1991); John C. Lincoln Hospital and Health Center v. Superior Court, 768 P.2d 188 (Ariz. 1989); Sheldon v. Cheshire Medical Center, No. 93-C-235, slip op. at 7 (Cheshire County Superior Court, October 19, 1994).
  22. Harper v. Healthsource New Hampshire, 140 N.H. 770, 779 (1996).
  23. See State v. Elwell, 132 N.H. 599, 605 (1989) (physician-patient privilege); Nelson v. Lewis, 130 N.H. 106, 109 (1987) (physician-patient privilege); McGranahan v. Dahar, 119 N.H. 758, 764 (1979)(attorney-client privilege).
  24. R.S.A. 151:13-a, II.
  25. In re K, 132 N.H. at 10.
  26. See id., 132 N.H. at 15 (the statute “plainly conditions the privilege on the existence of a committee structure organized to perform the particular review function we have explained.”).
  27. Id.
  28. See Plummer v. Pilpil-Arambulo, No. 98-C-1010 (Order on the Plaintiffs’ Motion to Compel Production of Dr. Pilpil-Arambulo’s Credentialing File, September 17, 1999).
  29. Id., Order on Plaintiffs’ Motion to Compel at 1.
  30. Prive v. M.W. Goodell Construction Company, 119 N.H. 914, 917 (1979) (citations and quotations omitted).
  31. See Kerouac v. VNA Home Health and Hospice Services, Inc., No. 97-C-142, Order on Motion to Compel dated August 21, 1997 (Hillsborough County Superior Court, Northern District).
  32. See R.S.A. 151:13-b (effective July 18, 1998).
  33. Harper v. Healthsource New Hampshire Inc., 140 N.H. 770, 779 (1996) (quotations omitted).
  34. See N.H.Const. part I, art. 14.
  35. See Nutbrown v. Mount Cranmore, Inc., 140 N.H. 675, 682 (1996).
  36. See id.
  37. See In re K, 132 N.H. at 10.
  38. See id. (emphasis added).
  39. No. 90-C-2744, Order dated November 21, 1991 (Hillsborough County Superior Court).
  40. No. 90-C-276, Order dated February 4, 1992 (Grafton County Superior Court).
  41. Kenison v. Mary Hitchcock Memorial Hospital, No. 96-C-181, Order on Motion to Compel dated September 22, 1997 (Grafton County Superior Court).
  42. No. 97-C-111, Order dated January 9, 1998 (Strafford County Superior Court).
  43. Fed.R.Civ.P. 26(b)(5).
  44. 142 N.H. 540 (1997).
  45. See id., 142 N.H. at 548.
  46. Id.
  47. See id. (quoting Church of Scientology International v. U.S. Department of Justice, 30 F.3d 224, 228 (1st Cir. 1994)).
  48. Id., 142 N.H. at 550 (quoting Church of Scientology, 30 F.3d at 231)).
  49. See id.
  50. See id., 142 N.H. at 551.
  51. See Sawyer v. Boufford, 113 N.H. 627, 628 (1973).