Tibbs v. Bunnell
2014 Ky. LEXIS 333
| Ky. | 2014Background
- Goff died from complications after elective spine surgery by Tibbs, Norman, and Brown at UK Hospital in a medical malpractice action.
- Estate sought production of a post-incident report created by a UK nurse in UK Healthcare’s Patient Safety Evaluation System on the day of the event.
- Appellants moved for a protective order; trial court ordered production if the reporter had actual knowledge of the care.
- Court of Appeals granted a writ prohibiting production but limited the PSQIA privilege to documents containing a self-examining analysis and remanded for in-camera review.
- Appellants argued the Court of Appeals misapplied the privilege by tying it to Francis and by narrowing its scope to self-examining analyses.
- Supreme Court reviews the PSQIA scope de novo, confirms dual reporting obligations exist, and addresses whether state-mandated incident reports can be privileged.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Scope of PSQIA privilege | Tibbs argues Francis narrows scope to self-examining analyses only | UK argues the Act's privilege is broader, covering data and analyses within PSOs | Limitations based on self-examining analysis are rejected; broader PSQIA scope affirmed |
| Whether incident reports are protected as patient safety work product | Incident reports fall within PSQIA as patient safety work product | State-mandated incident reports are outside PSQIA protection | Incident reports mandated by state regulation are not protected unless they remain within the patient safety evaluation system |
| Effect of dual reporting obligations on privilege | Dual reporting obligations should yield protection within the PSQIA system | State requirements do not negate PSQIA protection; but information outside PSO remains subject to state law | State-mandated records retained outside PSO are not afforded PSQIA privilege; information within PSO may be protected |
Key Cases Cited
- Walgreen Co. v. Department of Financial & Professional Regulation, 970 N.E.2d 552 (Ill. App. 2012) (pharmacy incident reports can be privileged under PSQIA where reports are within PSO)
- Saleba v. Schrand, 300 S.W.3d 177 (Ky. 2011) (peer review documents not automatically privileged in Kentucky malpractice actions)