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Health Law - Health care professionals - Discipline - Investigation - Preliminary - Particular professions - Doctors - Practice and procedure - Discovery

Thursday, July 21, 2016 @ 8:00 PM  




Appeal by the plaintiff physician, Nagase, from the dismissal of his defamation action against the defendant physicians, Entwistle and Slater, the hospital and the health authority. The plaintiff was a locum emergency room physician who took issue with the admission of a patient to emergency. The plaintiff interrupted a meeting involving Entwistle to voice his concerns. Entwistle believed the plaintiff’s tenor was disrespectful and unprofessional. The plaintiff, Entwistle and two other staff members met to discuss the incident. The plaintiff subsequently tendered his resignation. Thereafter, Entwistle sent emails to the plaintiff, copied to other staff members, summarizing his position that the plaintiff’s conduct was unprofessional and unacceptable. Entwistle forwarded the email to the chief of staff of another hospital at which the plaintiff worked, and to Slater, the medical director of the regional health authority, requesting his input and guidance. Further correspondence regarding the incident was sent between the plaintiff, Entwistle and Slater, and from Slater to other health authority directors. The plaintiff alleged the emails were defamatory and sought various orders regarding their production and use. A chambers judge struck the claim on the basis the emails at issue were created in the course of investigation into the plaintiff’s conduct, and were therefore immune from production pursuant to s. 51(2) of the Evidence Act. The plaintiff appealed.

HELD: Appeal dismissed. The chambers judge did not err in concluding that s. 51(2) of the Evidence Act precluded production of the letters and emails underlying the plaintiff’s action. The intent of s. 51(2) was absolute protection of communications made concerning the evaluation or investigation of medical staff. The fact that the emails at issue preceded any formal committee, meeting or process to review the plaintiff’s conduct did not preclude protection from production under the provision. The plaintiff’s proposed interpretation of permitting production of records related to the initiation of a disciplinary process was overly literal and contrary to the objects of the provision. The chambers judge properly concluded that the chain of communications between the plaintiff and the defendants was for the purpose of investigation into the plaintiff’s conduct and was therefore protected from production