PSO Case Law: Tinal v. Norton Healthcare, No. 3:11-CV-596-S, May 8, 2014

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.

“The significance of [the Norton Court] opinion cannot be understated as it is the first time a federal court has explicitly evaluated the scope of the PSQIA privilege protections and its application in both state and federal proceedings as well as the elements of the patient safety work product privilege. Licensed providers who have yet to participate in a PSO for fear of its limited scope and acceptance by the courts should reconsider this option.”  – Wes Butler, Barnett Benvenuti & Butler PLLC


1 Gulley v. Lapaglia, 2014 U.S. LEXIS 7074. The court did not hold that any documents were protected, and indicated that the doctor would still need to produce a privilege log listing them by categories, so the court could make a more detailed determination.

2 Garcia ex rel. NLRB v. Fallbrook Hosp. Corp., 952
F.Supp.2d 937 (S.D. CA June 7, 2013).

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