PSO Case Law: Kentucky courts are at the forefront of PSQIA interpretation

The KY Supreme Court has issued an opinion that follows the same pattern as this order.  Read it here.

Kentucky Cases –  Norton Hospital v. Hon. Charles L. Cunningham Jr. and Estate of Jacob Hull, No. 2012-CA-00746-OA (August 16, 2012);  Tibbs, et al. v. Hon. Kimberly N. Bunnell and Estate of Luvetta Goff, No. 2012-CA-00916-OA (August 16, 2012); Mercy Health Partners-Lourdes, Inc. v. Kaltenback, No. 2013-CA-000053-OA (entered July 11, 2013)

Kentucky Courts Are At the Forefront of PSQIA Interpretation

Two malpractice cases, consolidated for appeal before the Kentucky Supreme Court, have reinforced the reach of the federal protections in the PSQIA.[i] Each recognized the overarching protection afforded by the Act.  However, the providers involved have appealed to the Kentucky Supreme Court for clarification, due to misinterpretations of the PSQIA as applied by the Appellate Court in the cases.

Background: Kentucky’s courts have consistently tried to limit the protection of quality assurance work, and have eliminated state protection of that work in medical malpractice cases.  It is reassuring that the Appellate Court recognized the pre-emptive nature of the PSQIA in the face of contrary state cases.

Why Appeal?

The appellate rulings in the cases before the Kentucky Supreme Court distorted the federal statute in two different ways.  A provision of the PSQIA states that non-Patient Safety Work Product (non-PSWP) is not protected, simply making the distinction in the treatment of PSWP and non-PSWP clear.  The Norton Court interpreted that provision as also applying to PSWP and incorrectly concluded that the Act thereby created protections and then took them away.  However, in the end, the Court noted the purpose of the statute was to protect the information and upheld that protection.  The appealing parties want to clear up the confusion in the case.

The Tibbs decision superimposed an old common-law standard of €œcritical self examination€ onto the federal protection, which narrows the Act’s protections considerably.  The PSQIA was enacted in order to move away from the old common-law structure, and the appellants want to make sure it is not held to be part of the Act.

The national PSO community has joined these appeals, arguing for protections fully consistent with the terms of the PSQIA.  The Center for Patient Safety has filed a brief as a friend of the court

Another more recent Kentucky court order underscores the need to actively participate with a PSO to get the federal protections.[ii]  This trial court order appropriately found that a party cannot claim the protections of the PSQIA unless it has a relationship with and is reporting to a PSO.  While this may seem obvious, defense lawyers in other cases are reportedly trying to claim the protection of the PSQIA without a PSO/provider relationship.  They have not been successful.  The courts have been willing to examine the claims of privilege, but require providers to meet the law’s minimum threshold before granting the protections.

Summary provided by Center for Patient Safety Project Manager, Kathy Wire, JD, MBA, CPHRM.

[i] Norton Hospitals, Inc. d/b/a Norton Hospital v. Hon. Charles L. Cunningham Jr. and Estate of Jacob Hull, No. 2012-CA-00746-OA (August 16, 2012)  Tibbs, et al. v. Hon. Kimberly N. Bunnell and Estate of Luvetta Goff, No. 2012-CA-00916-OA (August 16, 2012).

[ii] Mercy Health Partners-Lourdes, Inc. v.Kaltenback, No. 2013-CA-000053-OA, entered July 11, 2013.


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