University of Kentucky v. Bunnell
532 S.W.3d 658
Ky. Ct. App.2017Background
- UK Healthcare (petitioner) created a ten‑page event report documenting a wrong‑site procedure that resulted in the patient’s death; the report was prepared within UK HealthCare’s Patient Safety Evaluation System (PSES) and submitted to its Patient Safety Organization (PSO).
- Phyllis Flowers, administratrix for the estate, sought the event report and related investigative notes via subpoena duces tecum in a wrongful death/medical‑negligence suit; Fayette Circuit Judge Bunnell ordered production.
- Petitioner claimed the report is patient safety work product (PSWP) and privileged under the federal Patient Safety and Quality Improvement Act (PSQIA), 42 U.S.C. § 299b‑21 et seq.
- Central legal question: whether Kentucky regulation 902 KAR 20:016 § 3(3)(a) creates a state “external obligation” (i.e., mandatory reporting or recordkeeping) that would except the event report from PSWP protection.
- The Cabinet’s Office of Inspector General advised the regulation does not require hospitals to submit incident investigation reports to the Cabinet; federal HHS Guidance on PSWP and “external obligations” was heavily relied on.
- The Court found the report was created within the PSES, submitted to a PSO, was not a patient medical record, not required by state law or voluntary program conditions outside the PSQIA, and therefore privileged; the writ prohibiting enforcement of the production order was granted.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the event report is privileged PSWP under the PSQIA | Flowers: the report should be discoverable because state/regulatory obligations (or business necessities) defeat PSWP | UK: report was created in PSES for PSO submission and thus qualifies as PSWP and is privileged | Held: report is PSWP and privileged — petitioner proved it was created in PSES and submitted to a PSO |
| Whether 902 KAR 20:016 § 3(3)(a) imposes a state external obligation to report incident investigations to the Cabinet | Flowers: the regulation requires hospitals to create/retain incident reports and implies reporting to the Cabinet, defeating privilege | UK + OIG: regulation uses discretionary language (“as necessary”) and does not mandate submission; no Kentucky law mandates adverse‑event reporting | Held: § 3(3)(a) does not constitute a mandatory external obligation requiring reporting to the Cabinet |
| Whether any PSQIA exceptions apply (patient records; mandatory external obligations; business records) | Flowers: report fits an exception (state‑mandated or business record) and thus is not privileged | UK: report is not a patient medical record, not created to satisfy any preexisting external obligation or voluntary program condition outside PSQIA, and did not exist separately from PSES | Held: no exception applies — report is not a patient record, not state‑mandated, nor a separate business record outside the PSES |
| Whether a court may conduct in camera review or compel production when privilege claimed | Flowers: circuit court can and should separate state‑mandated content via in camera review | UK: burden is on claimant to show PSWP; if claimant meets burden, in camera review unnecessary absent proof of unmet external obligation | Held: court may do in camera review when requester proves what state‑mandated reports should contain and shows a possible unmet obligation; here Flowers failed that showing so no in camera review was required |
Key Cases Cited
- Tibbs v. Bunnell, 448 S.W.3d 796 (Ky. 2014) (plurality) (interpreting interaction of PSQIA and 902 KAR 20:016 § 3(3)(a) and suggesting state regulation may create reporting obligations)
- Baptist Health Richmond, Inc. v. Clouse, 497 S.W.3d 759 (Ky. 2016) (vacated/reversed in part and remanded) (clarifies burden‑shifting and instructs courts to separate state‑mandated report content from PSWP during review)
- Hoskins v. Maricle, 150 S.W.3d 1 (Ky. 2004) (writ of prohibition standard: error, lack of adequate remedy, irreparable injury)
- Bender v. Eaton, 343 S.W.2d 799 (Ky. 1961) (once privileged information is disclosed, appeal is an inadequate remedy)
- Upjohn Co. v. United States, 449 U.S. 383 (1981) (an uncertain or inconsistently applied privilege is of little value; courts must define privileges with clarity)