New Federal Court Opinion Applies PSQIA Protections Broadly

June 10, 2014    |   By: Calevir

The District Court for the Western District of Kentucky has issued an incredibly helpful opinion for PSO’s and their participants.   (Tinal v. Norton Healthcare, No. 3:11-CV-596-S, May 8, 2014)   A copy of the opinion is available and a summary of the opinion by one of the law firms involved is also available.   The court reviewed the law and its history comprehensively.   Lawyers defending PSO participants should read it for guidance on how to approach PSWP protections.

The court noted that the statute uses “plain and unequivocal terms” to set out the privilege, and stated, “No ambiguity can be read into….the privilege statute.”   The plaintiff’s claim was for employment discrimination under the federal civil rights statutes, and she claimed that the PSQIA should only apply in medical malpractice cases.   The court disagreed, finding that “[w]e have no authority to go behind the plain meaning of the statute.”

Norton had prepared a privilege log, listing the documents for which it claimed the privilege, and the court held that it need not describe the content of each one, other than to describe its preparation and sourcing as PSWP.   The court did review the documents in camera, and litigants should be prepared for that step.   Once again, the case relied on a finding that the provider had (1) defined a PSES, (2) performed its analysis and generated the documents as part of the PSES, and (3) reported to the PSO per hospital policy.

Though this decision does not control any cases outside its own district, we hope that it will be an influential analysis, and one that participants and their counsel can use to construct their own arguments.

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