REDDINGTON V. JEWISH HOSPITAL
KDC APPELLATE CASE SUMMARY
Jewish Hospital, an assumed name of Jewish Hospital & St. Mary’s Healthcare, Inc., et al. v. Hon. Mitch Perry, Jefferson Circuit Court Judge, and Karen L. Reddington, Party in Interest, Individually, and as Executrix of the Estate of Donald Patrick Reddington Sr.
Case no. 2020-SC-0011-MR
June 17, 2021 Opinion
In its June term, the Kentucky Supreme Court issued a very important opinion for the medical-malpractice defense bar. In Jewish Hospital, et al. v. Perry, 2020-SC-0011, 2021 WL 2603413, __ S.W.3d. __ (Ky. 2021), the Court was asked to interpret a 2018 amendment to Kentucky’s peer-review privilege, KRS 311.377, and determine whether it rendered a hospital’s root-cause analysis privileged. The Court answered in the affirmative and clearly outlined the statute’s scope: “[T]he statute renders privileged any documents created by an entity engaged in the retrospective review of the professional conduct of health care providers.” Id. at p. 11.[1] This is a sea change for Kentucky medical-malpractice law, after decades of defense counsel arguing for—and the General Assembly unsuccessfully trying to enact—a peer-review privilege.
Donald Reddington, Sr., had successful surgery for a torn labrum in May 2016. After surgery, Reddington had difficulty being extubated and, as a result, was transferred to the ICU. Reddington improved over a period of days and was transferred out of the ICU. But shortly after his transfer, Reddington pulled out his tracheostomy tube and arrested. Life-saving measures were taken, but Reddington passed away eight days later. During litigation, the Reddington Estate sought discovery regarding incident reports, root-cause analyses, or other peer review documents created following Reddington’s death. Jewish Hospital produced multiple documents, including a root-cause analysis, subject to confidentiality terms in an agreed protective order.
But after the documents were produced, the General Assembly amended KRS 311.377 to “clarif[y] that the evidentiary privilege created by the statute applied in “any civil action . . . including but not limited to medical malpractice actions.” Id. at 3. In light of this development, Jewish Hospital sought to have the root-cause analysis excluded at trial because KRS 311.377 rendered the documents privilege. The trial court denied Jewish Hospital’s motion and found instead that the root-cause analysis could be used “for the purpose of impeachment.” Id. Jewish Hospital sought a writ of prohibition at the Court of Appeals, but the court held that Jewish Hospital was not performing a designated professional review function, as required by KRS 311.377, because the process began after it became clear that litigation was imminent, i.e. it was a business purpose, not a professional review function. Id.
After finding that Jewish Hospital met the standard for obtaining a writ, the Court was forced to consider “whether the amended KRS 311.377 applies to this dispute”—after all, the litigation started and the root-cause analysis was produced before KRS 311.377 was amended in 2018. Id. at 5. The Court acknowledged Kentucky’s general presumption against retroactivity, but emphasized that its analysis focuses on whether KRS 311.377’s amendment was procedural or remedial in nature with a concentration on the effect of the amendment on pending litigation. Id. at 6–7. The Court found that KRS 311.377’s amendment was procedural because it did not impair the Reddington Estate’s substantive rights, but only “acts as a rule that predominately affects what happens inside the courtroom (i.e. the manner and means by which a party proves its case).” Id. at 9. Thus, the Court held that KRS 311.377 “is exempted from the prohibition against retroactive application” and applied in Jewish Hospital’s circumstances. The practical significance of this ruling is important: KRS 311.377’s protection is available in all pending cases, regardless of when they were filed or whether documents have been previously produced.[2]
The Court then turned to the case’s primary issue, the scope of KRS 311.377’s 2018 amendment. The Court first defined “designated professional review function” found in subsection (2) as the “retrospective review and evaluation of the competency of professional acts or conduct of other health care personnel.” Id. at 11; see also id. at 14. The Court then issued arguably the most important line of the entire opinion: “Put simply, the statute renders privileged any documents created by an entity engaged in the retrospective review of the professional conduct of health care providers.” Id. This sentence defines the privilege found in KRS 311.377(2).
The Court then turned to the Reddington Estate’s argument that Jewish Hospital’s root-cause analysis was not privileged because it was initiated after litigation was apparent. KRS 311.377(2) requires those asserting the privilege to attest to “participating in a patient safety and quality improvement initiative, including the program established by the Patient Safety and Quality Improvement Act of 2005.” Id. at 13 (quoting KRS 311.377(2)). The Reddington Estate argued that this attestation requirement required entities to engage in peer review for a patient-care purpose, as the Court of Appeals had held. The Court rejected this argument out of hand, noting that the General Assembly “did not intend for the privilege provision of KRS 311.377 to be coextensive with federal protections,” and instead intended KRS 311.377 “to offer broader protections.” Id. The Court also noted that “[a]n entity claiming the privilege, therefore, may but is not required to participate in the patient safety program under ‘PSQIA’” because the “General Assembly did not intend to incorporate the peer review provisions of the ‘PSQIA’ wholesale.” Id. at 14. A textual comparison of KRS 311.377 and PSQIA supported the Court’s reading—KRS 311.377 contains none of the limitations found in PSQIA. To the contrary, “KRS 311.377(2)’s broad language extends coverage to a class of documents generated by peer review committee that would not otherwise be protected under the federal statute.” Id. at 15.[3] According to the Court, the statute does not even require an evaluation of “whether the document at issue ‘could’ result in better health care outcomes”—the retrospective review alone is sufficient for the privilege’s protection. Id. at 14.
Because of these clear differences between KRS 311.377 and PSQIA, the Court refused to adopt the Court of Appeals’ and the Reddington Estate’s “business purpose” test—it was misguided and “relie[d] on case law interpreting a federal statute that expressly provides narrower protection than the state statute.” Id. at 16.
Here, Jewish Hospital attested to participating in the Kentucky Institute for Patient Safety & Quality (KIPSQ), a federally certified PSO, thus satisfying KRS 311.377(2)’s requirements. And the root-cause analysis was created by a team within the hospital with findings from a retrospective review of nursing care. The Court concluded, therefore, that the root-cause analysis, “meets the statutory requirements of KRS 311.377 and was privileged.” Id.
One point that should not be overlooked in the Court’s opinion is its treatment of Sisters of Charity Health Sys. v. Raikes, 984 S.W.2d 464 (Ky. 1998), an opinion that, along with McGuffey v. Hall, 557 S.W.2d 401 (Ky. 1977) and Sweasy v. King’s Daughters Memorial Hosp., 771 S.W.2d 812 (Ky. 1989), has defeated any assertion of peer-review privilege in medical-malpractice cases Kentucky for decades. On pages 8 and 9—in a footnote no less—the Court quoted Raikes’s limitation on KRS 311.377’s applicability[4] and pointed out that “[t]he 2018 Amendment to KRS 311.377(2) clearly expand[ed] the scope of the statute’s applicability.” Op. at p. 8–9. No constitutional challenge was made in Reddington, but it is telling that the Court readily acknowledged the expansion of KRS 311.377’s scope. Raikes, et al., are no longer an impediment to a peer-review privilege in Kentucky.
This opinion is a long time coming—for decades attorneys have argued for and the General Assembly has attempted to create a peer-review privilege in Kentucky. The Court was clear in Reddington: when a hospital undertakes a retrospective review of the professional conduct or competency of healthcare personnel, the materials it creates are privileged. It nearly goes without saying, but this is a very notable development in defending medical-malpractice claims.
Note: The specifics of this Opinion, along with future practical implications, will be discussed in a KDC Roundtable on July 23.
[1] All page references are to the slip op., not Westlaw.
[2] Note: KRS 311.377(2) protect documents both from discovery and from use/admission at trial. See also Op. at p. 16 n.49 (“The Estate argues that the Hospital waived any claim to privilege protection through its voluntary disclosure of the RCA prior to the passge of the amendment to KRS 311.377. The argument fails. Kentucky Rule of Evidence (KRE) 510 states that ‘A claim of privilege is not defeated by a disclosure which was . . . (2) made without the opportunity to claim this privilege.’ Here, any disclosures occurred prior to the passage of the 2018 amendment so the Hospital lacked the opportunity to assert the privilege.”).
[3] For example, under PSQIA, a root-cause analysis submitted to the Joint Commission—a voluntary accrediting organization—would not be protected. See Univ. of Ky. v. Bunnell, 532 S.W.3d 658 (Ky. App. 2017).
[4] Raikes held that KRS 311.377 was not applicable to medical-malpractice suits because “the peer review privilege created by KRS 311.377(2) [was] limited to suits against peer review entities.” Raikes, 984 S.W.2d at 470.