And v. Braden, 2011–SC–000770–MR.

• Decision Date: 25 October 2012
• Docket Number: No. 2011–SC–000770–MR.,2011–SC–000770–MR.
• Citation: 384 S.W.3d 154
• Parties: Vanda COLLINS (Individually and as Executrix of the Estate of Roy Collins), Appellant v. Honorable Paul BRADEN, Judge, Whitley Circuit Court (Now Deceased), Appellee. and Baptist Regional Medical Center, as an unincorporated division operating under the assumed name of Baptist Healthcare System, Inc.; Shahzad Shahmalak, M.D.; Unknown Nurses; Unknown Physicians; Unknown Psychologists; and Unknown Psychiatrists, Real Parties in Interest.
• Court: United States State Supreme Court — District of Kentucky

384 S.W.3d 154

Vanda COLLINS (Individually and as Executrix of the Estate of Roy Collins), Appellant

v. Honorable Paul BRADEN, Judge, Whitley Circuit Court (Now Deceased), Appellee.andBaptist Regional Medical Center, as an unincorporated division operating under the assumed name of Baptist Healthcare System, Inc.; Shahzad Shahmalak, M.D.; Unknown Nurses; Unknown Physicians; Unknown Psychologists; and Unknown Psychiatrists, Real Parties in Interest.

No. 2011–SC–000770–MR.

Supreme Court of Kentucky.

Oct. 25, 2012.

Robert Scott Madden, Morgan, Madden, Brashear, Collins & Yeast, PLLC, Manchester, KY, Daniel G. Yeast, Morgan, Madden, Brashear, Collins & Yeast, PLLC, Somerset, KY, Counsel for Appellant.

Honorable Paul Braden, Judge (Now Deceased), Honorable Paul Kenton Winchester, Judge, Now Sitting, Whitley Circuit Court, Whitley Circuit Court, Williamsburg, KY, Appellee.

Barbara Jean Meritt Bowers, Piper & Bowers, Lexington, KY, Charles J. Cronan, IV, Jamie Kristin Neal, Julie Marie McDonnell, Stites & Harbison, PLLC, Louisville, KY, Counsel for Real Party in Interest, Baptist Regional Medical Center.

Robert Franklin Duncan, Jackson & Kelly, PLLC, Lexington, KY, Counsel for Real Party in Interest, Shahzad Shahmalak, M.D.

Opinion of the Court by Justice NOBLE.

The Appellant Vanda Collins asks this Court to reverse the Court of Appeals' decision granting a writ of prohibition stopping the Whitley Circuit Court from ordering the disclosure of various documents that Baptist Regional Medical Center, an Appellee and the Real Party in Interest, claims are protected by the attorney-client privilege. The Court of Appeals found that the documents were privileged and granted the writ. Because the hospital has failed to show that the privilege applies, the Court of Appeals' order is reversed.

I. Background

On April 22, 2008, Roy Collins was admitted to Baptist Regional Medical Center after having overdosed on pills and leaving a suicide note. The attending physician had “heightened concerns” about Mr. Collins, and had him transferred to the in-patient psychiatric unit where suicide precautions were taken. On April 24, 2008, in the early morning, Mr. Collins used his hospital gown to hang himself and died. Hospital staff tried to resuscitate him, but they were unsuccessful.

Mr. Collins' wife, Vanda Collins, learned of his death when she arrived at the hospital that morning. Within hours, her attorney went to the hospital. Ms. Collins claims that she called him to help her contact her son, who practiced law with him, and to take care of administrative matters, such as identifying her husband. The hospital claims the attorney was called to investigate the circumstances of the death. On April 22, 2009,¹ Ms. Collins filed a medical negligence and wrongful death lawsuit against the hospital, the attending physician, and several unknown physicians, nurses, and other hospital employees.

Immediately after learning of Mr. Collins' death, the hospital's general counsel, Janet Norton, and corporate counsel, Karen Hensel, retained R. William Tooms, an attorney in London, Kentucky, to investigate the death. They later retained Barbara Bowers, a Lexington attorney, to assist Mr. Tooms. Ms. Bowers is defending the hospital in the lawsuit at the trial court. On February 2, 2009, the outside attorneys completed their investigation and submitted a document titled “Investigative Case Report” to the hospital's in-house attorneys and its risk manager, Kimberly Reeder. Included with the report were three attachments: a document titled “Behavioral Healthcare Consultants Report,” dated September 30, 2008; a document titled “A Framework for a Root Cause Analysis and Action Plan in Response to a Sentinel Event”; and a schematic of the floor where Mr. Collins was a patient. The report was marked confidential.According to Ms. Norton's affidavit, the report was prepared “in conformity with the policy and procedure of Baptist Healthcare System, Inc. entitled Investigation of Sentinel Event/Critical Incident.' ” A copy of this policy and procedure is included in the record; it was signed by Ms. Norton as the general counsel of the hospital.

Also on the day of Mr. Collins' death, the assistant coordinator in the hospital unit where Mr. Collins had been a patient filled out a “Risk Occurrence Report,” which was marked “Privileged & Confidential—Attorney Work Product Document” and forwarded to the hospital's risk manager. This document was prepared pursuant to a written directive titled “System Policy and Procedures,” and had a subject line reading “Professional/General Liability Incident Reporting Procedures.” This document was also signed by Ms. Norton as the general counsel of the hospital.

During discovery in the case, the hospital identified the Investigative Case Report (and attachments) and the Risk Occurrence Report but claimed they were protected by the attorney-client privilege under KRE 503 and work-product protection under CR 26.02(3)(a), and thus were not discoverable. Ms. Collins moved the trial court to compel discovery of the documents, which the hospital opposed.

Initially, the trial court denied the motion to compel, finding that Ms. Collins had not established a substantial need or inability, without undue hardship, to obtain the substantial equivalent of the documents by other means. The court, however, also noted that it had “some difficulty accepting” that the documents were protected under the attorney-client privilege or as attorney work product.

After further discovery, Ms. Collins renewed the motion to compel. This time, the trial court granted the order, finding only that “the Plaintiffs motion [was] well taken.”

The hospital did not move for a protective order or in camera review of the documents, nor did it proffer to the trial court a description of the documents' content (such as whether they included statements from employees, legal advice, or other material). Nor did the hospital move to amend, alter, or vacate the order compelling the discovery. Instead, the hospital filed a petition for a writ of prohibition with the Court of Appeals.

The Court of Appeals granted the writ and ordered the trial court's order vacated. In reaching that decision, the court found that the hospital had shown that the documents in question were prepared by attorneys at the direction of its in-house general counsel for the purpose of communicating legal advice about its potential exposure to liability. The court also noted that the hospital's written policies showed an intent to keep the documents confidential and that there was no evidence that the documents had been disclosed to any outside party. Relying on St. Luke Hospitals, Inc. v. Kopowski, 160 S.W.3d 771 (Ky.2005), the court concluded that the documents were thus protected by the attorney-client privilege and that the hospital was entitled to the writ of prohibition.

Ms. Collins now appeals to this Court as a matter of right. SeeCR 76.36(7)(a) (“An appeal may be taken to the Supreme Court as a matter of right from a judgment or final order in any proceeding originating in the Court of Appeals.”); Ky. Const. § 115 (“In all cases, civil and criminal, there shall be allowed as a matter of right at least one appeal to another court....”). She has not asked this Court for intermediate relief under Civil Rule 76.36(4).

II. Analysis

Writ cases require a two-step analysis. First, the court must look at whether such an extraordinary remedy is even available, before deciding the merits of the claimed legal error. Second, if the court finds that the remedy is available, it then looks at the merits of the alleged error, and if the trial court has erred or is about to err, the court writ may issue.

A. The remedy of a writ of prohibition is available when the alleged error is the breach of an absolute privilege.

The first issue before this Court, then, is whether the hospital has established that remedy by way of an extraordinary writ is even available to it. The test for determining whether a writ is available was most succinctly stated as follows:

A writ of prohibition may be granted upon a showing that (1) the lower court is proceeding or is about to proceed outside of its jurisdiction and there is no remedy through an application to an intermediate court; or (2) that the lower court is acting or is about to act erroneously, although within its jurisdiction, and there exists no adequate remedy by appeal or otherwise and great injustice and irreparable injury will result if the petition is not granted.

Hoskins v. Maricle, 150 S.W.3d 1, 10 (Ky.2004). This statement lays out what we have described as two classes of writs, one addressing claims that the lower court is proceeding without subject matter jurisdiction and one addressing claims of mere legal error. The hospital did not claim the trial court acted without jurisdiction and instead sought the writ only under the second class.

Rather than trying to show the two prerequisites for that class—no adequate remedy by appeal, and great and irreparable injury—the hospital claims it is entitled to the writ under what has been described as an exception for “certain special cases.” See id. at 20;Bender v. Eaton, 343 S.W.2d 799, 801 (Ky.1961). For those cases, the requirement of great and irreparable injury need not be shown. Instead, the court looks at whether “a substantial miscarriage of justice will result if the lower court is proceeding erroneously, and correction of the error is necessary and appropriate in the interest of orderly judicial administration.” Bender, 343 S.W.2d at 801. “[I]n such a situation the court is recognizing that if it fails to act the administration of justice generally will suffer the great and irreparable injury.” Id.

This Court's precedent holds that violation of a privilege satisfies both the requirement of no adequate remedy by appeal, “because privileged information cannot be recalled once it has been...