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Tibbs v. Bunnell

Supreme Court of Kentucky

August 21, 2014

PHILLIP TIBBS, M.D., ET AL., APPELLANTS
v.
HON. KIMBERLY N. BUNNELL (JUDGE, FAYETTE CIRCUIT COURT), APPELLEE AND ESTATE OF LUVETTA GOFF, ET AL., REAL PARTIES IN INTEREST

Released for Publication December 18, 2014.

Page 797

ON APPEAL FROM COURT OF APPEALS. CASE NO. 2012-CA-000916-OA. FAYETTE CIRCUIT COURT NO. 12-CI-00392.

FOR APPELLANTS: Bradley A. Case, Stephen Joseph Mattingly.

FOR APPELLEE: Kimberly Nell Bunnell, Pro se.

FOR REAL PARTIES IN INTEREST: Herman Michael Lucas.

FOR AMICI CURIAE, THE ALLIANCE FOR QUALITY IMPROVEMENT AND PATIENT SAFETY, INC.; THE PATIENT SAFETY RESEARCH FOUNDATION, INC.; VERGE PATIENT SAFETY ORGANIZATION; THE PSO ADVISORY, LLC; AND THE HOSPITAL ASSOCIATION OF RHODE ISLAND: Leroy E. Sitlinger, Jr., Paul E. Dwyer, Jr., Margaret Binzer.

FOR AMICI CURIAE, KENTUCKY HOSPITAL ASSOCIATION AND AMERICAN HOSPITAL ASSOCIATION: Dean T. Wellman.

FOR AMICUS CURIAE, UNIVERSITY HEALTHSYSTEM CONSORTIUM PERFORMANCE IMPROVEMENT PSO: Martin Allen Arnett, James W. Hutchison, Michael R. Callahan.

FOR AMICI CURIAE, THE AMERICAN MEDICAL ASSOCIATION; THE KENTUCKY MEDICAL ASSOCIATION; AABB'S PATIENT AND DONOR SAFETY CENTER; ANESTHESIA QUALITY INSTITUTE; CALIFORNIA HOSPITAL PATIENT SAFETY ORGANIZATION; CAROLINAS HEALTHCARE SYSTEM PATIENT SAFETY ORGANIZATION; CAROLINAS REHABILITATION--PATIENT SAFETY ORGANIZATION; CHILD HEALTH PSO, LLC; CLARITY PSO; CHS PSO; ECRI INSTITUTE PSO; HEALTHCARE IMPROVEMENT PATIENT SAFETY ORGANIZATION OF ALABAMA, INC.; INSTITUTE FOR SAFE MEDICATION PRACTICES; MEDNAX PSO, LLC; MISSOURI CENTER FOR PATIENT SAFETY; NC QUALITY CENTER PSO; PSYCHSAFE; QA TO QI LLC; QUANTROS PATIENT SAFETY CENTER; SCHUMACHER GROUP PATIENT SAFETY ORGANIZATION, INC.; SOCIETY OF HOSPITAL MEDICINE PSO; THE MIDWEST ALLIANCE FOR PATIENT SAFETY; THE ILLINOIS HOSPITAL ASSOCIATION; THE METROPOLITAN CHICAGO HEALTHCARE COUNSEL; SOCIETY FOR VASCULAR SURGERY PATIENT SAFETY ORGANIZATION, LLC.; AND QUALITY CIRCLE FOR HEALTHCARE: Martin Allen Arnett.

FOR AMICI CURIAE, UNIVERSITY MEDICAL CENTER, D/B/A UNIVERSITY OF LOUISVILLE HOSPITAL AND JAMES GRAHAM BROWN CANCER CENTER: Beth Hendrickson McMasters, Sara Elizabeth Collins.

OPINION OF THE COURT BY JUSTICE SCOTT. Cunningham and Venters, JJ., concur. Noble, J., concurs in result only. Abramson, J., dissents by separate opinion in which Minton, C.J., joins. Keller, J., not sitting.

OPINION

Page 798

SCOTT, JUSTICE.

Appellants, Phillip Tibbs, M.D., Joel E. Norman, M.D., and Barrett W. Brown, M.D., petitioned the Court of Appeals for a writ of prohibition directing the Fayette County Circuit Court to prohibit the production of an " incident" or " event" report created after the death of patient Luvetta Goff, arguing that it fell within the federal privilege created by the Patient Safety and Quality Improvement Act of 2005 (" PSQIA" or " the Act" ), 42 U.S.C.A. § 299b-21 et. seq. The Court of Appeals granted Appellants the writ, but Appellants appealed to this Court as a matter of right, Ky. Const. § 110(2)(b), arguing that the Court of Appeals erroneously limited the protective scope of the privilege. No cross-appeals were filed.

Appellants now present a question of first impression to this Court regarding the proper scope of the privilege established by the Act. As such, the issuance of the writ is not before us, and therefore stands, as does the order of remand for further review. We only address the scope of the Act's privilege, as this is the sole issue presented on appeal. For the reasons that follow, we reverse and clarify the scope of the Act's privilege to be applied on remand.

I. BACKGROUND

The underlying case is a medical malpractice action in which Goff died as a result of complications from an elective spine surgery performed by Appellants at the University of Kentucky Hospital. Goff's estate filed a wrongful death and medical malpractice action against Appellants, and this appeal stems from a discovery dispute regarding an alleged post-incident or event report generated by a UK Hospital surgical nurse concerning the surgery through the UK Healthcare Patient Safety Evaluation System on the day of the event.[1]

During discovery, Goff's estate requested the following:

INTERROGATORY NO. 26: Please state whether any investigation, including but not limited to peer review and/or incident reports, has been conducted upon the medical treatment, surgery or care rendered to the Plaintiff, by you, or anyone at your direction or control, and if so, by whom, when and the results thereof. If yes, produce such documents.
. . . .
REQUEST NO. 7: Please produce any and all documents generated by any investigation, including but not limited to, peer review and/or incident reports of the events of January 3, 2011 through January 26, 2011, as identified in your answer to interrogatory No. 26.

Appellants then moved for a protective order concerning the report, asserting that the only post-incident report that exists is a " report created through UK HealthCare's Patient Safety Evaluation System" and, thus, it is protected from discovery by the new federal privilege for patient safety work product created by the Act.[2]

Page 799

The trial court denied Appellants' motion and ordered production of the document if it was generated by " someone involved in or with actual knowledge of the medical care," [3] at UK.

Appellants then sought a writ of prohibition preventing the trial court from ordering production of the report, and the Court of Appeals entered an order granting the writ of prohibition, holding the Act's federal privilege preempted the trial court from ordering the disclosure of information privileged under federal statutory law,[4] but that the Act's privilege is limited to " documents that contain a self-examining analysis," and, thus, remanded the matter to the trial court with instructions to conduct an in camera review of the document at issue to determine if it contained the required " self-examining analysis." [5]

Appellants now appeal from the Court of Appeals' opinion and order alleging that the Court of Appeals erroneously limited the scope of the privilege. Appellants base their appeal on the portion of the Court of Appeals order limiting ...


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