Tibbs v. Bunnell

• Citation: 448 S.W.3d 796
• Decision Date: 21 August 2014
• Docket Number: No. 2012–SC–000603–MR.,2012–SC–000603–MR.
• Court: United States State Supreme Court (Kentucky)
• Parties: 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.

448 S.W.3d 796

Phillip TIBBS, M.D., et al., Appellants

v. Hon. Kimberly N. BUNNELL, (Judge, Fayette Circuit Court ), AppelleeandEstate of Luvetta Goff, et al., Real Parties in Interest.

No. 2012–SC–000603–MR.

Supreme Court of Kentucky.

Aug. 21, 2014.

As Corrected Sept. 10, 2014.

Rehearing Denied Dec. 18, 2014.

Bradley A. Case, Stephen Joseph Mattingly, Counsel for Appellants.

Kimberly Nell Bunnell, pro se Counsel for Appellee.

Herman Michael Lucas, Counsel for Real Parties in Interest.

Leroy E. Sitlinger, Jr., Paul E. Dwyer, Jr., Margaret Binzer, Counsel 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.

Dean T. Wellman, Counsel for Amici Curiae, Kentucky Hospital Association and American Hospital Association.

Martin Allen Arnett, James W. Hutchison, Michael R. Callahan, Counsel for Amicus Curiae, University Healthsystem Consortium Performance Improvement PSO.

Martin Allen Arnett, Counsel 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.

Beth Hendrickson McMasters, Sara Elizabeth Collins, Counsel for Amici Curiae, University Medical Center, d/b/a University of Louisville Hospital and James Graham Brown Cancer Center.

Opinion

Opinion of the Court by Justice SCOTT.

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

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 the privilege to documents containing a “self-examining analysis,” arguing that the term “self-examining analysis” is neither found nor implied in the Act or its legislative history.

II. PSQIA

Before we address the scope of the Act's privilege, we feel that it is important to discuss the history and purpose of the Act as established by the United States Congress. Congress enacted this legislation in order to encourage health care providers to voluntarily associate and communicate privileged patient safety work product (PSWP) among themselves through in-house patient safety evaluation systems (PSES) and with and through affiliated patient safety organizations (PSO) in order to hopefully create an enduring national system capable of studying, analyzing, disseminating, and acting on events, solutions, and recommendations for the betterment of national patient safety, healthcare quality, and healthcare outcomes. 42 U.S.C.A. § 299b–21, et seq.; see also Dep't of Fin. & Prof'l Regulation v. Walgreen Co., 361 Ill.Dec. 186, 970 N.E.2d 552, 557 (Ill.App.Ct.2012) (“The Patient Safety Act ‘announces a more general approval of the medical peer review process and more sweeping evidentiary protections for materials used therein.’ ” (citation omitted)).⁶

Congress took such action following the Institute of Medicine's (IOM) publication of a report entitled To Err Is Human: Building a Safer Health System, in which it was estimated that up to 98,000 Americans die each year as a result of medical errors, most of which “errors were not the result of personal recklessness but rather resulted from faulty systems, processes, and conditions.” Lee Med., Inc. v. Beecher, 312 S.W.3d 515, 534 (Tenn.2010) (citing Institute of Medicine, Committee on Quality of Health Care in America, To Err Is Human: Building a Safer Health System, 49–66 (2000)). Prior to the Act, providers had little incentive to communicate amongst themselves and to report and analyze errors nationally due to fear that such communications or analysis might well generate litigation and/or be discoverable therein.

The intended purpose of the Act is set out in the House of Representatives report, as follows:

The IOM report offered several recommendations to improve patient safety and reduce medical error, including that Congress pass legislation to extend peer review protections to data related to patient safety and quality improvement that are developed and analyzed by health care organizations for internal use or shared with others solely for the purpose of improving safety and quality.

This bill's intended purpose is to encourage the reporting and analysis of medical errors and health care systems by providing peer review protection of information reported to patient safety organizations for the purposes of quality improvement and patient safety. These protections will facilitate an environment in which health care providers are able to discuss errors openly and learn from them. The protections apply to certain categories of documents and communications termed “patient safety work product” that are developed in connection with newly created patient safety organizations. This patient safety work product is considered privileged and, therefore, cannot be subject to disclosure....

H.R.Rep. No. 109–197 (2005). Complementing the privilege is a confidentiality provision establishing that “patient safety work product shall be confidential and shall not be disclosed” except as authorized by the Act itself. 42 U.S.C.A. § 299b–22(b) ; see also 42 C.F.R. § 3.206(b).⁷

III. ANALYSIS

Appellants raise a very narrow issue before this Court: whether the Court of Appeals erred in limiting the privilege to documents employing a “self-examining analysis” rather than the statutory language used in the Act. If Appellants are correct, the secondary question becomes: what is “patient safety work product”?

On direct appeal from the Court of Appeals in a case involving a writ of prohibition, this Court reviews the Court of...