Mixed results from Kentucky Supreme Court

August 27, 2014    |   By: Calevir

The Kentucky Supreme Court has issued its anxiously awaited opinion in Tibbs, et al. v. Bunnell (2012-SC-000603-MR). The opinion is available online here. Earlier in the case, the Kentucky Court of Appeals ruled that only work reflecting “self-examining analysis,” could be protected PSWP, eliminating data or reports used as part of that analysis from protection. The hospital appealed, with support from the national PSO community. The Kentucky Supreme Court rejected that restriction based on the language of the law and final rule.   It went on to examine the definition of PSWP as applied to the information sought by the plaintiff, which included incident reports.

Kentucky has an administrative regulation that requires the preparation of certain administrative reports, including “incident investigation reports” and peer review and credentialing records.   These records, the court decided, are therefore generated in the regular course of the hospital’s business and are not PSWP.   The court said the collected information did not need to be reported to the state to fall outside the definition of PSWP, just prepared to comply with the regulation. The court differentiated any federal reporting requirement, and did not address the protection for the deliberations and analysis (“sentinel event records and root cause analysis”) that a Kentucky trial court previously protected from discovery in Fancher v. Shields (Jefferson Circuit Court Div. 2 10-CI-4219).

CPS believes that this opinion ignores key language in the preamble to the final rule, which contemplates that information subject to mandatory reporting can be gathered in the PSES, with protection until it is removed and reported:

All of this information, collected in one patient safety evaluation system, is protected as patient safety work product unless the provider determines that certain information must be removed from the patient safety evaluation system for reporting to the state. Once removed from the patient safety evaluation system, this information is no longer patient safety work product….Providers have the flexibility to protect this information as patient safety work product within their patient safety evaluation system while they  consider whether the information is needed to meet external reporting obligations. Information can be removed from the patient safety evaluation system before it is reported to a PSO to fulfill external reporting obligations. Federal Register, Part III, Vol. 73, No. 226, at 70742 (Nov. 21, 2008).

How can PSO participants respond to this opinion and the similar Florida trial court order in Charles v. Southern Baptist Hosp. et al.?

  • Remember that this opinion is only controlling in Kentucky.   However, it will be published and available to plaintiff attorneys.   Let your defense counsel know about it, so they can respond to any requests with this in mind.   Participants can contact CPS for guidance if they get a request.   CPS staff members are always available to guide participants or their attorneys. And the CPS website has a page that reports on current legal developments.
  • Know what, if any, information has to be gathered and/or reported under state law.   The PSQIA and Final Rule specifically state that the PSQIA is not intended to protect information that has to be reported to the state.
  • If state law requires the gathering but not reporting of information, do that narrowly and with clearly defined borders around the activity so the “required” information isn’t commingled with non-required “protectable” work.   If “required” (and therefore non-protectable) information is sent to the PSES to support protected patient safety work, make sure the “entry” into the PSES is documented so subsequent work involving that information can be clearly protected.
  • Consider keeping incident reports minimal, with key data points designed to trigger but not reveal patient safety work.   That way, they can be kept outside the PSES if necessary without losing valuable protection.   Remember that the facts of an event as reflected in the medical record, business records or staff recollection can’t be protected anyway.
  • The Court did not even question the applicability of the PSQIA or that it supersedes less restrictive state law.   This opinion is based on the terms of the federal law and its implementing regulation and history.


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