Sisters of Charity Health Systems, Inc. v. Raikes

HEALTH OF CHARITY SYS- SISTERS

TEMS, INC., Flaget Memorial d/b/a Appellant,

Hospital, RAIKES, Judge,

Larry D. Nelson Court, Appellee.

Circuit

Gary Huxol, M.D., D. and Robert Dones in Interest.

Real Parties Huxol, D.O., Appellant,

Robert

Larry Raikes, Judge, D. Nelson Court, Appellee.

Circuit Charity

Gary D. Dones Sisters Systems, Flaget Memorial

Health D/B/A

Hospital, Real Parties Interest. System, Inc.,

Baptist Tri- Healthcare d/b/a

Cоunty Community Hospital; Health Inc., System, Baptist Healthcare D/B/A

Baptist Hospital East, Unincorpo as an Corporate

rated Division of BHI Com

plex, Appellants, McAnulty, Jr., Judge, E.

William Court,

Jefferson Circuit

Appellee. Hinton, Individually Ad L. and as

Marcie

ministratrix of Estate Seth War Hinton, Jeffrey Real

ren Hinton and C.

Parties in Interest. 97-SC-118-MR, 97-SC-124-

Nos.

MR and 97-SC-205-MR. Kentucky.

Supreme Court of

Sept.

Rehearing Denied Feb. 3, 1999.

As Amended March Systems, Flaget

Health Memorial Hos- d/b/a pital, in case no. 97-SC-124-MR. Price, Sr., Christian, Stephen R. D. Carole Combs, Louisville, Wyatt, Tarrant for & Curiae, Kentucky Hospital Amicus Associa- tion, in case no. 97-SC-124-MR 97-SC- 205-MR. Guethlein, Swain, P.

William 0. William Graves, Louisville, Stopher Bap- Boehl & for Inc., System, tist Healthcare Tri-Coun- d/b/a ty Community Hospital. Health Jr., Judge McAnulty, William E. Jefferson Court, Louisville, pro Circuit se. Greenwell, Murrell, Charles D. Dennis D. Sehook, Nancy Reutlinger, J. Middleton & Louisville, Hinton, Individually for Marcie L. and as Administratrix of the Estate of Seth Warren Hinton. Greenwell, Murrell, D.

Charles Dennis D. Sehook, Nancy Reutlinger, J. Middleton & Louisville, Jeffrey for C. Hinton. Jr., Counsel, Spainhour, Special John E. Curiae, Shepherdsville, ‍‌​‌‌​‌‌‌​‌‌‌​‌​‌​‌‌‌​​​​‌‌​‌‌‌​‌‌​‌​‌​​‌​​​‌​‌‌​‍for Amicus Academy Attorneys. of Trial Hoskins, III, William A. Kelly, Jackson & JOHNSTONE, Justice. Lexington, Logsdon, Jann B. R. David Mono- These cases were combined and to- heard han, Furman, Didat, C. Dean Rebecca L. gether. three ap- All cases come to us on Woodward, L.L.P., Fulton, Hobson & Louis- peal, right, ruling as a matter of from a ville, Charity for Systems, Sisters of Health Appeals denying Appellants’ Inc., Flaget Hospital, Memorial in case d/b/a petitions prohibition. Specifical- for writ of no. 97-SC-118-MR. ly, Appellants prohibit each case seek to Gregory Welch, King, Ogden, W. Newell & enforcing the trial court from an order com- Louisville, Huxol, for Robert M.D. pelling discovery review records in an underlying medical suit. The is- Raikes, Larry D. Judge, Nelson Circuit presented sue in all three cases is whether Court, Bardstown, se, pro in case no. 97-SC- of KRS 118-MR and 97-SC-124-MR. prohibits discovery records Prewitt, Gregory King, Tracy Ogden W. S. material Welch, Louisville, Newell & Hux- Robert find that the We does not extend to ol, D.O. suits and affirm the Louisville, Bryant, Gary James W. D. Appeals.' Court of Dones in ease no. 97-SC-118-MR and 97-SC- The issue before the Court is to be decided 124-MR. Thus, as a matter of law. thе facts of the Hoskins, III, Kelly,

William A. underlying necessary Jackson & suits are not to our Hubbard, Fulton, Lexington, Douglas John determination of the issue at bar. Hubbard, Bardstown, Hubbard Appellant & Jann B. we note one factual difference. Monohan, Logsdon, Judge David R. Dean Fur- argues C. Huxol Raikes did not at- man, Didat, Woodward, protective compel- Rebecca L. Hobson tach a order to the order Fulton, Louisville, hand, Charity ling discovery. Judge & Sisters On the other recognizing that if it fails to act

McAnulty’s compelling discovery pro- court is order justice that, generally “Any the administration will vides and all kept great irreparable injury. shall be confidential. Distribution suffer anyone prohibited. than counsel is original). (emphasis Any such records submitted to court [the] in the defen- At issue Bender was whether kept file are to be under seal.” We note that dants-respondents could discover argue Judge Huxol does not that Raikes by physicians, reports records and created protective dеnied a motion to attach a order plaintiffs- by the who had been consulted he, compelling discovery, to the order or that underly- their petitioners preparation in Huxol, Thus, ever made such a motion. at 802. ing personal injury suit. Id. clarify grant that a trial court’s refusal to a petitioners had Bender Court found protective order for review material re- because, injury remedy appeal “[t]he on no pursuant discovery request leased to a is not assuming their ad- petitioners, suffered at issue in of these cases. right this disclosure versaries have no Rules, complete upon will be under the Civil WRIT OF PROHIBITION injury such compliance the order and argue pro Appellees that a writ in subse- rectified could not thereafter be remedy. appropriate is an hibition not quent in the case.” Id. proceedings appeal These come to from a cases us on prevents disclo- Assuming that KRS Appeals. denial of the writ Court at in the case sure of review material grant pro a The decision whether to writ bar, have no Appellants likewise we find that hibition is entrusted to the sound discretion remedy appeal. See Adventist adequate on of the court. United Medi Southeastern Trude, Ky., 880 S.W.2d Systems Health Ky., group, Hughes, Inc. v. 952 S.W.2d (1994). 539, 541-42 (1997). However, pre the issue because law, appro sented is one of our review great and they suffer To will show an priateness of the writ is not limited to harm, argue irreparable Appellants abuse of discretion standard. Id. they if know candid reviewers will be less discovery in their views will be A extraor prohibition writ of is an However, it has malpractice suits. always dinary remedy, and we have been for the been law the Commonwealth in entertain cautious and conservative both past twenty-five years peer review mate- pеtitions granting in relief. ing for and such rial is in medical discoverable ‍‌​‌‌​‌‌‌​‌‌‌​‌​‌​‌‌‌​​​​‌‌​‌‌‌​‌‌​‌​‌​​‌​​​‌​‌‌​‍Eaton, Ky., Bender v. Thus, participants have prohibition to In order for a writ of input present, expectation valid that their no jurisdiction appropriate in cases is be where shielded proceedings into will be challenged, petitioner must show that: not discovery malpractice suit. in a medical from (1) adequate remedy on he would have essence, arguments show what Appellants’ (2) great and appeal; and he would suffer writ, granting gain is to there from injury acting irreparable if the trial court is if is not what there to lose the writ is Id. at 801. in error and the writ is denied. granted. irrepara showing great absolutely necessary. injury ble is not policy public to be The Bender found compelling to entertain the most reason special cases this Court will [I]n certain writ, though petitioners had not met in even petition prоhibition entertain a proper great prong “[T]he of the test. showing specific the second absence of a application of the Rule injury petitioner, provid construction and irreparable to the orderly ad- justice question important ... is miscarriage of will ed a substantial .... of our Rules Under proceeding if is erro ministration Civil result the lower court circumstances, be of a decision would of the error these neously, and correction Kentucky.” and Bar of value to the Bench necessary appropriate the interest concerns find similar judicial may It Id. at 802. We orderly administration. at bar. presented the cases a situation the issue observed that such be cases, in a mal- Despite published span Although conduct that results five quarter century practice may of a and which all hold that claim also eventuate relationship prоceeding, review material is medi be- discoverable suits, purely cal A issue continues tween the coincidental. two htigated again again designed at both the trial is not serve claim, appellate and the purpose levels in the Common and to the of a unequivocal confidentiality wealth. that an We find decision extent conferred expression upon partici- this issue necessitates a clear serves those Literary of our pate view. See Nazareth & Be proceedings, it is Stephenson, defamation, malprac- nevolent Institution v. suits 177, 178 tice. Thus, McGuffey Id. at 407. the Court’s con- THE SECTION 51 PROBLEM statute the struction of the was that controversy before in these us cases privilege did misreading misapplica- arises from the the malpractice It that then found the concerning of precedent tion whether its face statute was unconstitutional on be- prevents discovery KRS 311.377 of re- cause the statute had no reasonable relation- view documents and in medical mal- ship malpractice to medical claims or mal- practice suits. The confusion from our stems Id. practice insurance. Sweasy Daughters decision in King’s Me- Presumably response McGuffey in to the Ky., Hospital,

morial 771 812 decision, Assembly in the reen- General fully explain origin of the in acted KRS Section 33 of a new act 311.377 confusion, begin we with earlier of the case entitled, relating “AN ACT to the establish- Hall, McGuffey 557 S.W.2d 401 need, licensing of ment of certificate regulation of health facilities and health ser- In General the amended Acts, Ky. vices.” There ch. 135. were entitled, KRS 311.377 in Section 9 of a bih changes the no made the text of statute. relating “AN ACT to health care issue the We addressed the of whether Acts, insurance claims.” 1976 ch. 163. privilege of the of the 1980 version Thesе amendments contained a prevented discovery statute of peer review material and created the statute material in a medical suit in substantially present in its form. Sweasy, supra. In declaratory judgment two combined ac- McGuffey, Unlike the constitu- which tions, the Franklin Circuit Court declared tionality of the version of the statute judgment the 1976 Act unconstitutional. The bar, only was at in Sweasy the issue at issue of the trial was McGuffey, court affirmed in constitutionality appli- were both the and the supra. found, McGuffey Court inter cation of 1980 version of the statute. the alia, subject-matter 9 was Section important Sweasy, at It is 771 S.W.2d Act, sufficiently related to the title the Sweasy to note that the did not con- Court and, thus, of the violated Section 51 Ken- applying the to medical mal- strue statute tucky McGuffey, Constitution.1 Rather, Sweasy practice suits. the Court at 407. assumption made the statute the thаt issue, applied analysis its of the suits order Section McGuffey analyze Id. at Court first determined that the constitutional issue. (“With possible exception limited of Section title the Act matter of 813. subjects (if interpreted patient’s the Act to had some to include a mal- those action), relationship thirty-five all malprac- practice reasonable to medical sections of the exclusively procedures 406. It tice claims or insurance. Id. at then 1980 Act relate title.”) added). (Emphasis construed the statute: described that, subject, [subject] provides part shall 1. Section 51 in relevant "No to more than one and that ” expressed title law enacted shall relate .... McGuffey Sweasy understanding argument is that both point important to This unconstitutional, holding: was interpretation Sweasy’s held that KRS 311.377 correct thus, and, the 1990 reenactment of correctly trial that court stated оpportunity interpret gives us mean language McGuffey v. must Hall shown, However, as statute de novo. confidentiality privilege ex- either was Sweasy did not hold the statute 2 of 311.377 is pressed in Section Rather, Sweasy Court unconstitutional. against review entities limited suits McGuffey construction against Court’s protected relied as referred to and statute, holding reach the Ken- of the statute to or it violates Section of case, 2 of the statute was tucky 51. In either of Subsection Section Const. correctly applied review entities trial has limited to suits court Hall, of the statute. McGuffey v. mandate of our Court described Thus, Ap- Appeals ignored that order to reverse Court Sweasy and giving peals, reasons. have to overrule mandate in an we would Order statute. its construction of the Thus, Sweasy Court’s construction disagree Appellants While is consistent -with application to McGuffey Sweasy have no McGuf- But statute. fey construction Court’s version the construction Court, Sweasy McGuffey the the unlike statute, no agree that those cases have we do of that the 1980 version did not find constitutionality 1990 of the application the face; on its the statute was unconstitutional our decision of the statute. Because version rather, it the statute would violate construction, found that entirely statutory we rests Kentucky 51 Section of the Constitution reach the constitutional have no cause to if applied was to medical Walls, 693, 697 213 F.2d question. Rice v. Cir.1954). (6th decision, response Sweasy KRS 311.377 reenacted General any changing under a new title without 1990 THE THE PRIVILEGE SCOPE OF Apparently, the text of the statute.2 of BY KRS CREATED 311.377 mistakenly interpreted 311.377(2)clearly priv creates a was un

Sweasy holding as that statute at The issue ilege for review material.3 face. can find on its constitutional We scopе of the statute’s concerns bar explanation the Preamble of privilege. Act, “WHEREAS, begins, 1990 partici protection afforded begin analysis with We been elim pants for functions ... has privileges should nearly rule that universal by decision in Supreme Court’s inated construed, they strictly because contra Daughters Hos Sweasy King’s Memorial “the principle that the fundamental vene (1989) Ky., ....” 1990 812 pital, evi right every man’s ... has a public Acts, Sweasy clearly did not ch. States, 445 U.S. Trammel v. United dence.” privilege of KRS peer review eliminate the 906, 912, 45, 186 40, 63 L.Ed.2d 100 S.Ct. 311.377(2). most, Sweasy limited At (1980), 339 Bryan, quoting States v. United scope privilege. of 331, 724, 730, 323, L.Ed. 884 94 70 S.Ct. U.S. (1950).Or, recently, “broad have stated Sweasy mistaken we give the same Appellants when bal- ‘privilege’ are disfavored Appellants’ of interpretation. the heart of claims At was in We note because 311.377 prior reenacted that of KRS 311.377 2. The version Kentucky prior date of the effect to the effective was of the statute. 1990 the 1980 version Evidence, privilege at Rules Assembly again the statute amended The General clearly privilege is "otherwise is a issue purposes this dis- for the in 1988. cussion, by KRE 501. provided as referred to in statute” the statute did amendments to Thus, presented the issue are not any changes text create substantive statutory privilege after a enacted whether the statute. Court's KRE violates this date of the effective making authority under KRE 1102. rule suit, are in this class litigants practice for to have not included anced need they or have not sued for access to relevant material evidence.” because been performing Corp., Meenach v. General Motors action the course taken 398, citing States Simply put, United the statute was not S.W.2d review. Nixon, 683, 3090, 41 418 U.S. S.Ct. for the of defendants in a enacted (1974). Thus, privi- Nonetheless, Ap- L.Ed.2d claims suit. Nazarеth, lege carefully scrutinized. pellants argue plain language of the (1973). Moreover, at 179 the burden privilege allows them to use statute applies proving privilege that a rests on advantage. disagree. their We party claiming benefit. See Robert G. its provides, 1 of Lawson, Evidence Hand- Law for, alia, any person applies who inter (3d 1993). book, § p. 229 ed. Michie by granted, privileges staff certain li- construing Another reason caution in for e.g., organizations, censed health service scope by afforded KRS hospital, is deemed to have waived claim right bring Appellees’ 311.377 is that suit damages against hospital desig- for or its underlying their good pursuant nees for faith actions taken protected by claims is Section 14 Ken- Thus, proceeding. tucky right Constitution. While the to dis- (1) matter of Subsection is concerned with: present cover and evidence not likewise legal rights limiting the and remedies of Constitution, expressly protected sig- granted or are those degradation rights nificant could these (2) privileges; protecting staff licensed deny litigants, protected by in an action Sec- organizations being from health services sued provided tion due course law as good perfor- faith actions made Appellees argue section. did not Therefore, mance of review function. violates Section Appellants not been because have sued for holding does not rest on constitutional any performing taken in the of action course point grounds. purpose making Our in review, peer applica- a Subsection has no emphasize the privilege is to that creation of And, Appellants. obviously, Appel- tion to potential impli- carries with it constitutional right Appel- to lees have waived their sue cations. Thus, рursuant lants to Subsection 1. KRS 311.377(1) applies Appellants to neither nor against nar necessarily Balanced a Appellees. statutory privilege row construction of is principal statutory “[t]he rale of construction alia, provides, inter that all Subsection applicability ... that scope and of a records, proceedings, opinions, conclusions may by ascertaining statute be determined any entity perform- and of recommendations purpose intent of legislature and and ing peer a review function referred to in by considering in the evil the law is 1 of the statute be confidential Section “shall remedy....” tended Mitchell v. subject not be privileged and shall Ky., Company,

Farm Bureau 927 S.W.2d any any ... in action in discovery 343, grounds, overruled light purpose ‍‌​‌‌​‌‌‌​‌‌‌​‌​‌​‌‌‌​​​​‌‌​‌‌‌​‌‌​‌​‌​​‌​​​‌​‌‌​‍court.” intent of Lexington Mercury Nantz v. Lincoln Subar peer privilege peer (1997). u, Ky., 947 S.W.2d 36 participants, is reasonablе to con- creating have no that in the General We doubt a clude that intended privilege, subject in- Assembly’s the General of Subsection 2 that matter purpose ag- scope tent was not to hinder an should no broader in than the sub- is, grieved patient’s ject in a search for the truth matter of Subsection That (1) malpractice against negligent purpose medical suit of Subsection 2 is to: further physician hospital. legal rights or to the The Preamble limit the of those who plainly granted privileges Act that it or are as states was enacted staff (2) 1; provide participants. for the is Subsection described capacity legal protection in Appellants, their in cases at the entities de- further party-defendants good as in mal- faith bar a medical scribed in Subsection for actions actions, malpractice performance in of a review medical thе fact taken remains 311.377(2) Thus, Rather, ap- function. likewise it did not. on the basis Appellants Appellees. plies to neither nor authority preceding paragraph, cited in the thus, privilege And 2 has Assembly has, we conclude the General application to medical fact, adopted interpretation given 311.377(2)by McGuffey this Court Moreover, have we often stated stat Hall. given will or utes not be a strict literal reading to do so lead an where would Therefore, hold Wesley unreasonable result. v. Board Ed 311.377(2)is limit- privilege created County, ucation Nicholas against as ed suits review entities Appellants’ construction of protected against to and in Subsec- referred statute that KRS creates an tion 1 of the This construction statute. absolute review material. the statute is our decision exemplified bar, In the cases at an absolute tilts Trude, Ky., 880 Systems Health Adventist legal playing Appellees, field S.W.2d 539 rights any pursuant have not waived statute, a doctor who sued a who, Adventist advantage Appellants, concerned resignation, to obtain suit, hospital to rescind his in a defendants staff, hospital’s medical reinstatement were intended to benefit from the stat stemming from the damages and to recover privilege. clearly ute’s un Such result his staff summary suspension of reasonable. sought to discov- privileges. Id. at 540. He Finally, language dissenting which the hospital in er from review material opinion upon, viz: “shall not be relies preparation case. Id. at 540-41. of his discovery, subpoena, introduction into discovery The trial court ordered evidence, ...” civil action court hospital review material. Id. at 541. unchanged has been in KRS included prohibition filed for a writ of 9(2). Acts, § since ch. Thus, Appeals, which was denied. writ opinion After we in a held unanimous underlying suit in Adventist was between Hall, McGuffey supra, language rights physician, legal who had waived question application had no to medical .377, and KRS 311 under Subsection 1 of suits, 557 S.W.2d at the 1980 in described entity, review which was 311.177(2) Assembly General reenacted KRS protections by legal and afforded certain 32(2). 135, § Ky. Acts, verbatim. ch. 1980 1. McGuffey reaffirmed the Court’s inter We question pretation language in con Adventist found that Sweasy, tained statute in 771 the 1980 protected from discov- review material was at S.W.2d statute was reenacted ery by the Court KRS 311.377 and reversed Acts, 22, 1988, 224, § Ky. yet 1988 ch. “[therefore, find Appeals, stating, we Acts, 1, Ky. § again ch. action, includ- applies any statute any changes to lan operative without ing Id. at In other pending case.” By guage. reenacting KRS thrice words, the Adventist Court held any language alteration to the without cases to defamation statute is limited presumed question, Assembly is the General McGuffey See was stated Court. given adopted have construction McGuffey, at 407. In Leanhart 557 S.W.2d Hall, language McGuffey supra. v. Humana, Inc., Ky., v. 933 S.W.2d 820 Groce, (1994); Butler over- clearly Adventist did not we stated that Coleman, 858, 172 Ky. Cawood S.W.2d prior that hold by implication rule cases (1943); Ray Spiers, material is discoverable review Ap- Id. at 821. medical pellants, however, forcefully that this agree argue with While the dissent that the and has no could have enacted a stat- in Leanhart was dicta General discussion legal privilege to effect. extending ute review any find compelling hospital, hospice, We reason to address licensed li- licensed insurer, agency, censed home health health this clarity, issue. for the sake of organization, health maintenance health may the extent it inconsistent with this organized corporation, services medical opinion, we, again, overrule Adventist. staff, society, or affili- association reasons, foregoing For the the decisions of ated Medical with the American Associa- Appeals denying Appellants’ the Court of tion, Association, Podiatry American petitions hereby prohibition for writ of Association, American Dental American affirmed. Association, Osteopathic or the American Association, Hospital or a medical care COOPER, GRAVES, STUMBO, and foundation such a medical affiliated with JJ., WINTERSHEIMER, concur. society association, governmental or or or quasi-govemmental agency when such en- STEPHENS, C.J., by separate dissents tity performing designated function opinion, Special Justice LARRY NOE retrospective or review credentials joining that dissent. competency review and evaluation LAMBERT, J., sitting. professional acts or of other health conduct personnel. care This subsection shall have STEPHENS, Justice, dissеnting. Chief equal to, application and the waiver be Respectfully, I dissent. for, who, effective those subse- 17, 1978, quent to June continue to exer- part quarter For the century better privileges previously granted by cise staff has unsuc- any organization. such health services cessfully sought, another, in one form or 311.377(1)(1990). legislation enact keep that would confidential generated 311.377, the records commonly any what is As I read subsection 1 KRS person applies privileges who referred to for staff waives process. as the review “any any good claim damages faith attempts These failed have due to this performed by action” participant interpretation Court’s of the various laws words, process. In other accomplish goal. major- intended to this person part acts as ity opinion along this continues unfortunate process acquires qualified immunity fоr his path by limiting offered actions to that end. present 311.377,applying version of KRS performing designated At all times in privilege only brought when an action is di- function, professional proceed- rectly against entity. This records, conclusions, ings, opinions, approach is in violation of the established committee, board, recommendations of principles statutory construction. It commission, staff, professional respectfully this reason that I must dissent organization^ standards other en- majority’s from the view. (1) tity, as referred to in subsection of this privileged section shall be confidential and I. 311.377 KRS subject discovery, and shall not be to sub- for, Any person applies granted who or is evidence, poena, or into introduction in 17, 1978, privileges by any staff after June any any any court or in action in subject health organization services li- proceeding any administrative before censing board, committee, body, under the certificate of need licen- or whether feder- al, provisions 216B, state, city, Chapter county, except specifi- sure of KRS or as cally provided regard with in board shall be deemed to waived have as condi- 311.605(2). KRS subsection This shall not application grant, any tion of such or claim any proceedings gov- or matters damages any good for faith action tak- exclusively by erned federal law or federal member, by any person partici- en is a who regulation. pant employee of or who furnishes added). 311.377(2)(emphasis information, counsel, professional or ser- committee, board, commission, vices to 2 of 311.377 deals with duly subject entity or other same as which constituted matter subsection but 472 methods treatment and nothing qualified grant concerning proper of has to do with the

it Rather, at 178. of mistakes.” Id. immunity first subsection. corrеctions of by stating responded The claim purpose paragraph is to make all this of this “[cjlaims privilege carefully scru- process of are peer confiden records of review tinized, discovery tial, exception impediments of per single with the stated 311.605(2)1 validity relatively few truth afforded reasons which shall . For below, I in the common law.” Id. explored in believe that instances be detail there was majority’s Accordingly, the Court held that interpretation of KRS 311.377 errs peer privi privilege the common law in its belief that creates a subsection only review no basis had been offered which lege peer materials which review privilege. support could the creation of such a applies very in the limited context of lawsuits participant confidentiality The issue of majority reading process. of sub Under the McGuffey case next surfaced in thе of all themselves section Hall, (1977). con- Ky., 557 S.W.2d right per their review waive to sue stitutionality of an amendment to KRS process. sons involved peer re- purported 311.377 which Therefore, protections only ap subsection any civil “discovery from ... view material ply in the of cases in which limited number challenged. KRS action in court” was panel physician accuses a (1976). materially McGuffey 311.377 differs prin acting in bad faith. the normal Under Nazareth, merely in that from instead interpretation, possible, ciples statutory if law asserting a common based interpreted should be no subsection of a law considerations, McGuffey in- public policy meaningless. Brooks so as render it statutory volved enactment of Meyers, However, Assembly. by the General opin precisely majority Yet this is what privi- McGuffey struck court does in case. ion this subject-mat- lege it found “the because I question, Tо the statute privilege] understand ter of Act contained the [which engage a brief review of the cases sufficiently will is not related to confidentiality dealing pass this Court constitutional claims or insurance” Kentucky review materials. muster under section Id. at 407.

Constitution.2 Kentucky Jurisprudence of II. Assembly attempted In the General Confídentiality of Peer legislation had been re-enact Materials Review Acts Ch. 135. by McGuffey. struck the 1976 The text was identical first in which Court ad- case The title of 311 .377. peer review confi- enactment of KRS dressed issue sought to re-enact KRS dentiality Literary Be- act which was in Nazareth & relating to the establishment Stephenson, Ky., 503 was “AN ACT nevolent Institution Nazareth, need, regulation licensing and of certificate of no statuto- facilities health services.” authority protecting peer review material of health ry version KRS 311.377 mat- the 1980 hospital argued that as a existed. in that predecessor, than its fared public policy, review records must no better ter of 51 of Court found that violated section their kept confidential “revelation because held The Court Constitution. impede freedom of communication would is that the 1980 re-enaet- hospital problem that physicians “[t]he authorities between 311.377, shall main- power agents vided the board grants in KRS 1. to seize whatever the Board of Medical Licensure as to tain review records so such necessary added). to enforce KRS 311.550— (emphasis confidentiality thereof.” (which governing provisions .620 are the Commonwealth). practice of medicine relat- question The was "AN ACT act in entitled 311.605(2) provides inspection "[s]uch that ing malpractice claims.” insurance health care records shall not affect or seizure of Ky. Ch. 304. Acts pro- of those records as the cоnfidential nature ment is a bill even more omnibus and even cannot read this course of events by less related title to a civil asserting way action than to find that the General malpractice claim than is the Assembly 1976 Bill.” intended for KRS apply 311.377 to Sweasy King’s Daughters Memorial Hos- malpractice in medical actions.3 When a pital, Ky., 812, The interprets court a statute such as KRS Sweasy court made clear that fashion, was not 311.377in one it is well within the ruling on whether applied KRS 311.377 province legislature of the to overturn the claims, malpractice but if it apply did finding such by directing of the court that actions, then KRS 311.377 was unconstitu- interpreted statute be in another fashion. tional as enacted in 1980. Id. precisely That is what has occurred in the instant In Sweasy case. we overruled KRS In decision, reaction to the Sweasy applied 311.377as it to medical Assembly General re-enacted KRS аctions, 1990, legislature re-enact- 1990. Id. In reviewing ‍‌​‌‌​‌‌‌​‌‌‌​‌​‌​‌‌‌​​​​‌‌​‌‌‌​‌‌​‌​‌​​‌​​​‌​‌‌​‍preamble ed encompass KRS 311.377 to such actions. legislation it is clear the Assembly General actions, majority’s in ignoring the clear Sweasy believed that had rendered KRS action Assembly legislative- of the General 311.377unconstitutional. ly overruling Sweasy, the decision in serious- WHEREAS, protection afforded to ly damages credibility of this Court. participants for review func- relating tions occurring July to acts from respect my colleagues, With all I believe 16, 1980, has been eliminated the Su- they compound continue to the errone- preme Court’s in Sweasy King’s decision ous regard decisions of this Court with Daughters Hosp., Ky., Memorial statute’s, KRS 311.377. Since the this Court (1989), S.W.2d 812 and the lack of such sought has to avoid the clear mandate of open inhibits and candid 311.377 to make confidential re- review; and view material “all civil actions.” In the WHEREAS, urgent past, there is an employed need to this Court section 51 of the promote Kentucky effective pro- review for the Constitution to strike down the tection public; privilege. when the law was enact- welfare of Assembly ed the General limited the added). Chapter Acts (emphasis contents topic to this bill alone and in Since Sweasy court conditioned render- doing possibility so avoided the section ing KRS 311.377 appli- unconstitutional on its challenges. majority Since the cannot cation malpractice eases, to medical only employ to section it has chosen to limit reason the needed to re- the effect so as to render it enact KRS 311.377 was if the General As- irrelevant. sembly had desired the statute

malpractice cases. Although I preceding believe that the dis- majority suggests the “General Sweasy cussion of and the 1990 re-enactment Assembly mistakenly interpretеd Sweasy as of KRS 311.377 resolves the issue of the holding that the statute was unconstitutional legislature, intent of the there are several Slip op. its face.” agree at 468. I cannot other cases in which this Court called was interpretation with this upon the General As- grapple privi- review and sembly’s actions. This in lege stated Appalachian Regional issues. Sweasy it was rendering Johnson, Ky., KRS Health Care 862 S.W.2d 868 applied 311.377unconstitutional if it to medi- the issue was before this Court on an cal actions. appeal The General Assem- petition of a denial of a for a writ of bly’s prohibition re-enactment of KRS 311.377 stat- Ap- Court of ed that since this Sweasy peals. Court’s decision in hospital sought prohibit dis- had struck KRS 311.377 as covery enacted in materials a medical necessary it was to re-enact KRS 311.377. I case. This Court held that Although say I say that the General in- accurate to the intent was for KRS 311.377(2) 311.377(2) tended the of keep peer KRS to to review records confiden- actions, to medical it would be more tial "in all actions." civil they not the result of the prohibition not the correct reme- are decision-mak- of was writ rather, showing ing process, dy irrepara- no of but records created for because there was discovery making of other and used in the deci- purposes harm due documents ble relating peer review and there was sion. showing remedy appeal inad- of was expedien “It the wisdom nor the is neither discussing Id. at In the equate. 870-71. cy legislation court, of that concerns the this 311.377, goal of KRS this Court noted legislative for a matter for that is branch the re- the statute was enacted duty The herein government. of sole is

viewers, Id. at How- reviewed. light in the scrutiny the act of the constitu ever, since the was never addressed case Commonwеalth, tion.” Revenue Cabinet v. merits, strictly and as it is obiter dictum Smith, 873, 875 cert. denied precedential is without value. such Kentucky, v. sub nom Yeoman U.S. (1994). 130 L.Ed.2d 417 S.Ct. Sys In the case Adventist Health duty of the General is determine Trude, Corp. Health Care tems/Sunbelt public policy Commonwealth and sought Ky., 880 a doctor S.W.2d 539 legislation conformity therewith. enact his resignation to rescind reinstated Wilkinson, Ky., Commonwealth hospital’s a member a medical staff. as duty of It is the this acquire peer attempted The doctor review light interpret legislation Court to defendant-hospital records and the asserted statutory interpretation principles 311.377(2) failing KRS as a defense policy expressed by public as accord with This Court produce records. held 311.377(2) Assembly. Whether KRS 311.377(2) any civil action and KRS covered is “reasonable” is a matter “fair” or privileged. thus the Id. at records were to determine citizens of the Commonwealth The latest in this line Leanhart case representatives. We through their elected Humana, Inc., Ky., S.W.2d 820 super-legislature and should not act are not a Leanhart, plaintiff malprac- a in a as such. sought ma- peer case discover review tice by hospital held order to dem- terials III. OF PRIVILEGE CREATED SCOPE hospital negligent had been onstrate 311.377(2). BY KRS defendant-doctor, in recruiting in its majority has held that permit- him and in granting privileges, staff 311.377(2) is limited suits created KRS privileges. ting him to retain these staff Id. appli- against and has no peer review entities However, during the course cation suits. This Court, argument case before oral logic exposes the with statement flawed sought the documents it was established that majority decision. The which the reached its protection of KRS were not within the unambiguous. language in the statute is It they peer were review 311.377 because simply peer materials shall review states simply hospital They materials. were “any action.” The not be admissible civil records, such “administrative documents this is the same majority seems to think that including complaints by patients mem- against “in action a as the statement nursing staff.” bers of Since agree. I entity.” cannot review “internal Review documents were not Peer 311.377(1) privi- qualified by creates generated that com- Committee records involved lege all while the acts of investigation” of the defendant-doc- mittee’s 311.377(2) process. tor, in the they peer review materials were not 311.377(2). process records The makes all meaning of KRS within majority that this believes coverage confidential. of Leanhart is that relevance narrowly confidentiality extends to suits to be construed ag- party brought reviewers only apply to those records which process itself. grieved entity. The generated quali- аlready possess majority reviewers Since vast lawsuits, majority privilege against fied discoverable since committee holds will be today sought privileges staff as de- purpose holds the of KRS received peer by make review records 1. Under circum- is to scribed subsection what physician in a allege confidential in those which would a be involved lawsuits stances exclusively peer “governed by in bad proceeding reviewers acted faith. that was Accordingly, majority interpreta- regulation” under federal law or federal tion, only peer protected The is there peer review records are review committee? answer peer process alleged proceedings. extremely when the review itself is such The few only to have undertaken in faith. I can from this been bad This conclusion which draw Assembly certainly result defies sense in that envi- common sentence is that General party if a the one claiming peer types is that the reviewers actions than sioned faith, majority by sought acted in bad isn’t one circum- to avoid this the asserted peer problems by stance the in- pre-emption under review records federal fact, probative? highly peer would be clusion of this sentence. only review would be documenta- my I within the support find view ry peer evidence of bad faith. reviewers’ enactment of the statute as well. The state- majority’s logic believe that the strained is by Assembly ment of intent incorrect. passed makes clear that this law was to majority believes that because subsec- public open and to encourage apply tion 1 to is limited for or peer Certainly element of candid review. an privileges, confidentiality receive staff re- integrity protecting peer quirements only apply subsection 2 qualified immunity which process is the sub- involving persons. cases this same class of grants those section to involved in analysis only support offered to this process. language As the Gen- reading “it is to is that reasonable conclude states, clearly Assembly eral 311.377 is the General intended designed protect “open and candid subject matter should be no any person review.” As who has ever been in scope broader than the of Subsec- upon make a candid is called evaluation Op. tion Exactly 1.” it is why reason- aware, expo- degree candor increases able to noticeably make this conclusion is nentially anonymity when is assured. Cer- majority opinion. absent from the There is tainly protection necessary from lawsuits is reason to think that the General encourage process. How- meaning did not intend literal ever, necessary ability speak no less is the

words of the statute. forthright colleagues ain fashion about one’s might entirely ain manner that not be favor- By 311.377, reading KRS I reach the con- speech precisely able. It is which sub- qualified clusion provides that subsection 1 designed protect. Dangers section is privilege reviewers subsec- come forms besides lawsuits. Subsection tion makes the review records confi- 2 assures reviewers that their com- my dential “in all actions.” Under read- kept within the ments will be confidential ing, operate both sections in a law making the determina- committee relevant logical coherent and fashion. Under the ma- tion. jority reading, purpose of subsection 2 is to make the records unavail- suggests majority provide an they proceeding able the one in which respect absolute

would be relevant. most Accord documents would unreasonаble. ingly, modify majority’s opinion majority permitted I believe that is also language language undercut statute law to the extent needed to certain within correct itself. The last sentence subsection make it reasonable. This is not the “[tjhis duty has “a to accord states that subsection shall ‍‌​‌‌​‌‌‌​‌‌‌​‌​‌​‌‌‌​​​​‌‌​‌‌‌​‌‌​‌​‌​​‌​​​‌​‌‌​‍standard. This Court meaning any proceedings governed ex- their or matters to words of a statute literal clusively regula- law or to do lead to an absurd or federal federal unless so would place wholly an Reda qualifier tion .” This unusual unreasonable conclusion.” TRW, Finck, Co., upon Pump which is to those who A Division Inc. limited (1986) if is not Ky., 713 rev’d honor even the result one with which Brock, Ky., agree. grounds Caterpillar, Inc. v. we (1996), Reve citing Dept. 915 S.W.2d 751 Whether, majority asserts, KRS as the Corp., Greyhound nue legal playing against” “tilts field 311.377 disagree necessarily I am those who would seek to discover majority’s ment with the contention discerning is of no moment pro creates an unreasonable meaning Op. at of this law. 470. Whether However, the tection for reviewers. playing an KRS 311.377 creates unbalanced case law that a law must be more is clear inappropriate field is for this Court to consid- may than before we intervene Rather, unreasonable construing an er in a statute.4 it is A and strike it. law must be “absurd parties to appropriate for interested issue wholly body. argue legislative Perhaps unreasonable.” before a legislature sought playing tilt the field majority’s By accepting new-found and against one the other. That would side over doctrine, expansive interpretation of this a political question that this seem me be a opened. has Un- virtual Pandora’s box been Yet, legislature. should to the defer majority, der this new test asserted majority compelled feels aрparently any merely in its law which is unreasonable ignore legislative expressed intent By fashion- perceived result can be stricken. of this law and to preamble the enactment standard, arrogates ing this review the Court replace majority’s idea of that with the own duly power through wander enacted is correct. which legislation leads “to an and strike which statutory in- any involving As with case Op. To strike unreasonable result.” duty terpretation, is to ascertain our legislation, offensive this Court would give intent of the General effect to the postulate given facts under need set of liberty to add or Assembly. not at We are obtained unreason- which result could be nor legislative enactment subtract from the majority able. The states that an absolute reasonably ascertain- meaning not discover newly unreasonable under the language used. able from the such be mоdified formulated test and as must Educ., Ky., 873 S.W.2d Beckham v. Board of majority to a “reasonable” result. What the Gateway citing Construction fails discuss is what makes Wallbaum, Ky., 356 S.W.2d 247 Co. v. majority asserts that unreasonable. charged acting as a body this While practitioners not the since were co-equal branches check on two other 311.377, any intended beneficiaries of KRS Commonwealth, government we According- benefit them is unreasonable. overstep constitutional duties must not our majority ly, perspective, under a statute Assembly’s judg- by replacing the General any party not the who is which benefits I with our would resolve ment own. beneficiary is unreasonable and intended by giv- opinion problem majority creates be to remove the benefit from that must read its natural ing language of the statute legis- party. Whether the collateral effect meaning. The normal anyone other than the intend- lation benefits action,” words, “in wrote the beneficiary is irrelevant. In this case ed give I meaning would that is the pro- beneficiary is the intended matter, have been law. I fear that in this protecting If cess. as a result substituting judgment for that of process, is that the collateral effect long. legislature for far too plaintiffs in actions CONCLUSION findings proceedings and denied access to the committee, simply conclusion, I hold that subsection that is would makes all bound to 2 of KRS 311.377 legislative which we are decision presently appro- tion. as that issue is not expression of concern is more 4. Such an Court, priately of whether en- imprudent channeled into discussion it would before legislation qualifies special at time. gage further discussion Kentucky Constitu- 59 of the violation of section “in I materials confidential all civil actions.”

believe that this is the intent of the General repeatedly it has been thwart- Accordingly, respectfully

ed I this Court.

dissent. joins

Special LARRY Justice NOE

dissenting opinion.

Danny WOODWARD, Appellant, Kentucky,

COMMONWEALTH of

Appellee.

No. 97-SC-741-MR.

Supreme Kentucky. Court of

Oct. 1998. by Supreme

Order Published

Court Jan.

Rehearing Denied Jan.

Case Details

Case Name: Sisters of Charity Health Systems, Inc. v. Raikes

Court Name: Kentucky Supreme Court

Date Published: Mar 3, 1999

Citation: 984 S.W.2d 464

Docket Number: 97-SC-118-MR, 97-SC-124-MR and 97-SC-205-MR

Court Abbreviation: Ky.