Sisters of Charity Health Systems, Inc. v. Raikes

• Decision Date: 03 September 1998
• Docket Number: 97-SC-124-MR and 97-SC-205-MR,Nos. 97-SC-118-M,s. 97-SC-118-M
• Citation: 984 S.W.2d 464
• Parties: SISTERS OF CHARITY HEALTH SYSTEMS, INC., d/b/a Flaget Memorial Hospital, Appellant, v. Larry D. RAIKES, Judge, Nelson Circuit Court, Appellee. Gary D. Dones and Robert Huxol, M.D., Real Parties in Interest. Robert Huxol, D.O., Appellant, v. Larry D. Raikes, Judge, Nelson Circuit Court, Appellee. Gary D. Dones and Sisters of Charity Health Systems, D/B/A Flaget Memorial Hospital, Real Parties in Interest. Baptist Healthcare System, Inc., d/b/a Tri-County Health Community Hospital; Baptist Healthcare System, Inc., D/B/A Baptist Hospital East, as an Unincorporated Division of BHI Corporate Complex, Appellants, v. William E. McAnulty, Jr., Judge, Jefferson Circuit Court, Appellee. Marcie L. Hinton, Individually and as Administratrix of the Estate of Seth Warren Hinton and Jeffrey C. Hinton, Real Parties in Interest.
• Court: United States State Supreme Court — District of Kentucky

Page 464

984 S.W.2d 464

SISTERS OF CHARITY HEALTH SYSTEMS, INC., d/b/a Flaget

Memorial Hospital, Appellant, v. Larry D. RAIKES, Judge, Nelson Circuit Court, Appellee.

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

Robert Huxol, D.O., Appellant, v. Larry D. Raikes, Judge, Nelson Circuit Court, Appellee.

Gary D. Dones and Sisters of Charity Health Systems, D/B/A

Flaget Memorial Hospital, Real Parties in Interest.

Baptist Healthcare System, Inc., d/b/a Tri-County Health

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

Baptist Hospital East, as an Unincorporated Division of BHI

Corporate Complex, Appellants, v. William E. McAnulty, Jr., Judge, Jefferson Circuit Court, Appellee.

Marcie L. Hinton, Individually and as Administratrix of the

Estate of Seth Warren Hinton and Jeffrey C.

Hinton, Real Parties in Interest.

Nos. 97-SC-118-MR, 97-SC-124-MR and 97-SC-205-MR.

Supreme Court of Kentucky.

Sept. 3, 1998.

Rehearing Denied Feb. 18, 1999.

As Amended March 3, 1999.

William A. Hoskins, III, Jackson & Kelly, Lexington, Jann B. Logsdon, David R. Monohan, C. Dean Furman, Rebecca L. Didat, Woodward, Hobson & Fulton, L.L.P., Louisville, for Sisters of Charity Health Systems, Inc., d/b/a Flaget Memorial Hospital, in case no. 97-SC-118-MR.

W. Gregory King, Ogden, Newell & Welch, Louisville, for Robert Huxol, M.D.

Larry D. Raikes, Judge, Nelson Circuit Court, Bardstown, pro se, in case no. 97-SC-118-MR and 97-SC-124-MR.

W. Gregory King, Tracy S. Prewitt, Ogden Newell & Welch, Louisville, for Robert Huxol, D.O.

James W. Bryant, Louisville, for Gary D. Dones in case no. 97-SC-118-MR and 97-SC-124-MR.

William A. Hoskins, III, Jackson & Kelly, Lexington, John Douglas Hubbard, Fulton, Hubbard & Hubbard, Bardstown, Jann B. Logsdon, David R. Monohan, C. Dean Furman, Rebecca L. Didat, Woodward, Hobson & Fulton, Louisville, for Sisters of Charity Health Systems, d/b/a Flaget Memorial Hospital, in case no. 97-SC-124-MR.

Stephen R. Price, Sr., Carole D. Christian, Wyatt, Tarrant & Combs, Louisville, for Amicus Curiae, Kentucky Hospital Association, in case no. 97-SC-124-MR and 97-SC-205-MR.

William O. Guethlein, William P. Swain, Boehl Stopher & Graves, Louisville, for Baptist Healthcare System, Inc., d/b/a Tri-County Health Community Hospital.

Judge William E. McAnulty, Jr., Jefferson Circuit Court, Louisville, pro se.

Charles D. Greenwell, Dennis D. Murrell, Nancy J. Schook, Middleton & Reutlinger, Louisville, for Marcie L. Hinton, Individually and as Administratrix of the Estate of Seth Warren Hinton.

Charles D. Greenwell, Dennis D. Murrell, Nancy J. Schook, Middleton & Reutlinger, Louisville, for Jeffrey C. Hinton.

John E. Spainhour, Jr., Special Counsel, Shepherdsville, for Amicus Curiae, Kentucky Academy of Trial Attorneys.

JOHNSTONE, Justice.

These cases were combined and heard together. All three cases come to us on appeal, as a matter of right, from a ruling of the Court of Appeals denying Appellants' petitions for a writ of prohibition. Specifically, Appellants in each case seek to prohibit the trial court from enforcing an order compelling discovery of peer review records in an underlying medical malpractice suit. The issue presented in all three cases is whether the peer review privilege of KRS 311.377(2) prohibits discovery of peer review records and material in medical malpractice suits. We find that the privilege does not extend to medical malpractice suits and affirm the Court of Appeals.

The issue before the Court is to be decided as a matter of law. Thus, the facts of the underlying suits are not necessary to our determination of the issue at bar. However, we note one factual difference. Appellant Huxol argues that Judge Raikes did not attach a protective order to the order compelling discovery. On the other hand, Judge

                McAnulty's order compelling discovery provides that, "Any and all peer review records shall be kept confidential.  Distribution to anyone other than counsel is prohibited.  Any such records submitted to [the] court file are to be kept under seal."   We note that Huxol does not argue that Judge Raikes denied a motion to attach a protective order to the order compelling discovery, or that he, Huxol, ever made such a motion.  Thus, we clarify that a trial court's refusal to grant a protective order for peer review material released pursuant to a discovery request is not at issue in any of these cases
                

WRIT OF PROHIBITION

Appellees argue that a writ of prohibition is not an appropriate remedy. These cases come to us on appeal from a denial of the writ by the Court of Appeals. The decision whether to grant a writ of prohibition is entrusted to the sound discretion of the court. Southeastern United Medigroup, Inc. v. Hughes, Ky., 952 S.W.2d 195, 199 (1997). However, because the issue presented is one of law, our review of the appropriateness of the writ is not limited to an abuse of discretion standard. Id.

A writ of prohibition is an extraordinary remedy, and we have always been cautious and conservative both in entertaining petitions for and in granting such relief. Bender v. Eaton, Ky., 343 S.W.2d 799, 800 (1961). In order for a writ of prohibition to be appropriate in cases where jurisdiction is not challenged, a petitioner must show that: (1) he would have no adequate remedy on appeal; and (2) he would suffer great and irreparable injury if the trial court is acting in error and the writ is denied. Id. at 801. However, the showing of great and irreparable injury is not absolutely necessary. Id.

[I]n certain special cases this Court will entertain a petition for prohibition in the absence of a showing of specific great and irreparable injury to the petitioner, provided 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. It may be observed that in such a situation the court is recognizing that if it fails to act the administration of justice generally will suffer great and irreparable injury.

Id. (emphasis in original).

At issue in Bender was whether the defendants-respondents could discover medical records and reports created by physicians, who had been consulted by the plaintiffs-petitioners in preparation for their underlying personal injury suit. Id. at 802. The Bender Court found that the petitioners had no remedy on appeal because, "[t]he injury suffered by petitioners, assuming their adversaries have no right to this disclosure under the Civil Rules, will be complete upon compliance with the order and such injury could not thereafter be rectified in subsequent proceedings in the case." Id. at 802. Assuming that KRS 311.377 prevents disclosure of peer review material in the case at bar, we find that Appellants likewise have no adequate remedy on appeal. See Adventist Health Systems v. Trude, Ky., 880 S.W.2d 539, 541-42 (1994).

To show that they will suffer great and irreparable harm, Appellants argue that peer reviewers will be less candid if they know their views will be subject to discovery in medical malpractice suits. However, it has been the law of the Commonwealth for the past twenty-five years that peer review material is discoverable in medical malpractice suits. Thus, peer review participants have no present, valid expectation that their input into peer review proceedings will be shielded from discovery in a medical malpractice suit. In essence, Appellants' arguments show what there is to gain from the granting of the writ, not what there is to lose if the writ is not granted.

The Bender Court found public policy to be the most compelling reason to entertain the writ, even though the petitioners had not met the second prong of the test. "[T]he proper construction and application of the Rule in question ... is important to the orderly administration of our Civil Rules .... Under these circumstances, a decision would be of value to the Bench and Bar of Kentucky." Id. at 802. We find similar concerns in the issue presented in the cases at bar.

Despite five published cases, which span a quarter of a century and which all hold that peer review material is discoverable in medical malpractice suits, the issue continues to be litigated again and again at both the trial and the appellate levels in the Commonwealth. We find that an unequivocal decision on this issue necessitates a clear expression of our view. See Nazareth Literary & Benevolent Institution v. Stephenson, Ky., 503 S.W.2d 177, 178 (1973).

THE SECTION 51 PROBLEM

The controversy before us in these cases arises from the misreading or the misapplication of our precedent concerning whether KRS 311.377 prevents discovery of peer review documents and records in medical malpractice suits. The confusion stems from our decision in Sweasy v. King's Daughters Memorial Hospital, Ky., 771 S.W.2d 812 (1989). However, to fully explain the origin of this confusion, we begin with the earlier case of McGuffey v. Hall, Ky., 557 S.W.2d 401 (1977).

In 1976, the General Assembly amended KRS 311.377 in Section 9 of a bill entitled, "AN ACT relating to health care malpractice insurance claims." 1976 Ky. Acts, ch. 163. These amendments contained a privilege for peer review material and created the statute in substantially its present form.

In two combined declaratory judgment actions, the Franklin Circuit Court declared the 1976 Act unconstitutional. The judgment of the trial court was affirmed in McGuffey, supra. The McGuffey Court found, inter alia, that the subject-matter of Section 9 was not sufficiently related to the title of the Act, and, thus, violated Section 51 of the Kentucky Constitution. ¹ McGuffey, 557 S.W.2d at 407.

In its analysis of the Section 51 issue, the McGuffey Court first determined that the title of the Act limited the subject matter of the Act to those subjects which had some reasonable relationship to medical malpractice...