Jewish Hosp. v. Jefferson
| Decision Date | 17 June 2021 |
| Docket Number | 2020-SC-0011-MR |
| Parties | JEWISH HOSPITAL, an Assumed Name of Jewish Hospital & St. Mary's Healthcare, Inc.; and Kentuckyone Health, Inc., Appellants v. Honorable Mitch Perry JEFFERSON Circuit Court Judge, Appellee and Karen L. Reddington, Party in Interest, Individually, and as Executrix of the Estate of Donald Patrick Reddington Sr., Real Parties in Interest |
| Court | United States State Supreme Court — District of Kentucky |
COUNSEL FOR JEWISH HOSPITAL, AN ASSUMED NAME OF JEWISH HOSPITAL & ST. MARY'S HEALTHCARE, INC. & KENTUCKYONE HEALTH, INC.: Eleanor M.B. Davis, Bryan Todd Thompson, Joseph Andrew Wright, Louisville, Kentucky.
COUNSEL FOR KAREN L. REDDINGTON PARTY IN INTEREST INDIVIDUALLY, AND AS EXECUTRIX OF THE ESTATE OF DONALD PARTRCK REDDINGTON, SR.: Francis T. Conway, John William Conway, Louisville, Kentucky.
APPELLEE: Mitch Perry, Judge, Louisville, Jefferson County.
Appellant, Jewish Hospital ("Hospital"), petitioned the Court of Appeals for a writ prohibiting the Jefferson Circuit Court from enforcing its order allowing the use of a root-cause analysis report ("RCA") at trial for impeachment purposes. The Court of Appeals denied the petition, and Jewish Hospital appeals from that denial. The issue before us is whether KRS 1 311.377, as amended, protects the RCA from admission at trial. We now hold that the document is privileged, vacate the Circuit Court's order, and remand the case for further proceedings.
Donald Patrick Reddington Sr. underwent surgery for a torn labrum in May 2016. Though surgery was successful, Mr. Reddington suffered post-surgical complications upon being extubated. As a result of his difficulty breathing, Mr. Reddington was admitted to the ICU. Over the next several days, he showed improvement and was transferred from the ICU to less intensive care. Shortly after his transfer, Mr. Reddington pulled out his tracheostomy tube
and arrested. Despite CPR being administered, Mr. Reddington passed away eight days later.
His wife, Karen Reddington, individually and on behalf his estate ("Estate"), sued the Hospital alleging medical negligence. During discovery, the Estate sought production of any "incident report, sentinel event report, root cause analysis, or peer review" prepared in the aftermath of Mr. Reddington's death. The Hospital produced multiple documents, including the RCA, subject to the terms of an agreed protective order.2
Subsequent to the RCA's production, the General Assembly amended KRS 311.377. As is relevant here, the amendment clarified that the evidentiary privilege created by the statute applied in "any civil action ... including but not limited to medical malpractice actions[.]"3 The Hospital filed a motion in limine to exclude the RCA from admission at trial, arguing that KRS 311.377(2) rendered the RCA privileged. The trial court denied the motion in limine, ordering that the RCA could be used at trial "for the purpose of impeachment."
The Hospital then filed an original action in the Court of Appeals seeking a writ of prohibition. The Court of Appeals denied the Hospital's petition. While the appellate court agreed with the Hospital that a writ would be warranted if the privilege applied, it disagreed that the statute protected the RCA. It held that the Hospital was not "performing a designated professional review function when it prepared the RCA."4 The court focused on the impetus of the review process. It reasoned that the Hospital prepared the document for a business purpose, namely internal risk management, because the review process began after it became clear that litigation was imminent.5 And it held that the business purpose of the RCA precluded the report from being privileged because internal risk management was not a professional review function.6
The Hospital now appeals the Court of Appeals’ denial of its petition. The Hospital asks us to consider, first, whether KRS 311.377(2) applies retroactively to cases pending when the amendment was passed and, then, if it does, whether the RCA is privileged under the statute.
The issuance of a writ of prohibition is "disfavored by our jurisprudence" due to the extraordinary nature of the relief it provides.7 Thus, this Court employs a "cautious and conservative [approach] both in entertaining petitions for and in granting such relief."8 We review any factual findings or legal conclusions of the Court of Appeals under the traditional standards (clear error and de novo review respectively).9 The ultimate decision, however, of whether to issue a writ is discretionary.10 We therefore review this decision for an abuse of that discretion, considering whether it was "arbitrary, unreasonable, unfair, or unsupported by sound legal principles."11
Prior to considering any issue raised on the merits, we must determine if the case before us belongs to the narrow class of cases to which a writ is available.12 Those cases generally divide into two categories. The former category concerns cases in which the lower court has acted beyond the scope of its jurisdiction.13 The latter category requires the petitioning party to show that the lower court erred and no adequate remedy may be had through appeal.14 Ordinarily, the petitioning party need demonstrate that allowing the error to stand will result in irreparable injury.15 Yet, in certain special cases—such as the "breaching of a tightly guarded privilege"—a showing of immediate and irreparable harm may be set aside.16
Here, the Hospital claims that the trial court's order violates a statutory privilege to which it is entitled. The Court of Appeals held, and we agree, that the Hospital's petition meets the requirements of the certain special cases exception. As such, we review the merits of the Hospital's claims.
At the threshold, we consider whether the amended KRS 311.377 applies to this dispute. The events giving rise to this litigation occurred in 2016, as did the Hospital's internal review of those events. The Estate filed suit in 2016 and the Hospital produced the RCA in discovery the following year. With the exception of trial, nearly every event concerning the creation and disclosure of the RCA occurred prior to the passage of the 2018 amendment to KRS 311.377. For this reason, the Estate argues that the application of the privilege in this litigation impermissibly grants the statute retroactive effect.
Kentucky law recognizes a strong presumption that statutes operate prospectively.17 The General Assembly recognized this presumption in KRS 446.080(3), which provides that "[n]o statute shall be construed to be retroactive unless expressly so declared." Thus, "when the General Assembly clearly states legislation is to have retroactive effect or otherwise prescribes its temporal scope or reach, we give effect to the intent of the General Assembly ... unless to do so would impair some vested right or violate some constitutional guarantee."18
KRS 311.377 contains no express statement regarding retroactivity. Nor does the statute clearly express an intent that its provisions be applied retroactively through its temporal scope. Nevertheless, the absence of such express intent does not end our inquiry. Amendments to statutes governing "in-court procedures and remedies which are used in handling pending litigation, even if the litigation results from events which occurred prior to the effective date of the amendment, do not come within the rule prohibiting retroactive application."19 Accordingly, we examine whether the extension of the privilege set out in KRS 311.377 is procedural or remedial in nature.
The Estate correctly points out that this Court has previously held that an evidentiary privilege falls on the substantive end of the substance/procedure spectrum.20 In Chauvin , we considered whether the General Assembly's creation of a novel statutory privilege violated the separation of powers provisions of the Kentucky Constitution.21 Crucially, our analysis focused on the source of the General Assembly's authority to create privilege law. A majority of the Court determined that this authority derived from the legislature's inherent power to enact substantive law, which we defined as "those [laws] that ‘predominately foster other objectives’ and have an out-of-court effect."22 We determined that the evidentiary privilege fostered out-of-court objectives (e.g. protecting privacy and combatting drug abuse and addiction) and; consequently, we held that the creation of the privilege was a valid exercise of legislative authority.
In considering retroactivity, however, the focal point of our analysis shifts. Here, we concentrate on the effect of the amendment on the pending litigation.23 In Peabody Coal Co. v. Gossett , we explained the distinction between substantive and procedural laws in the retroactivity context:
A retrospective law, in a legal sense, is one which takes away or impairs vested rights acquired under existing laws, or which creates a new obligation and imposes a new duty, or attaches a new disability, in respect to transactions or considerations already past. Therefore, despite the existence of some contrary authority, remedial statutes, or statutes relating to remedies or modes of procedure, which do not create new or take away vested rights, but only operate in furtherance of the remedy or confirmation of such rights, do not normally come within the legal conception of a retrospective law, or the general rule against the operation of statutes.24
Vinson illustrates this approach. There, we considered whether amendments to Kentucky's Whistleblower Statute that altered the causation, weight of evidence, and burden of proof elements under the statute were substantive or procedural in nature.25 The principal effect of the amendment was to make it easier for an aggrieved employee to prove their case and shifted the burden of proof to the employer to rebut certain aspects of the claim.2...
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Jewish Hosp. v. Reddington
...safety and quality improvement initiative[.] Appellants argue that per KRS 311.377(2) and the Supreme Court's writ of prohibition in Perry, supra, the Jefferson Circuit Court improperly admitted into evidence at trial information contained in the RCA report, and/or related information from ......