October 23, 2017
In the on-going saga of the discoverability of medical incident reports, the Kentucky Court of Appeals has issued a 79-page unpublished opinion addressing the issue, particularly the limited discovery privilege offered by the federal Patient Safety and Quality Improvement Act, 42 USC 299b, et seq. (“PSQIA”). University of Kentucky v. Bunnell, 2017-CA-000543-OA. The Court of Appeals granted a writ of prohibition, ultimately holding that the trial court erred in ordering discovery of UK HealthCare’s “event report” regarding a surgery performed at the hospital. The opinion goes through a detailed analysis of the PSQIA, its privileges, the exceptions to its privileges, and Kentucky case law addressing the PSQIA. The opinion holds that the “key to determining the availability of the privilege is first determining the purpose for which a report is created.” Generally speaking, if the hospital prepared the report for purposes of the PSQIA, the PSQIA privilege protects it unless it contains: "(1) information comprising patient records; (2) information compiled for the purpose of satisfying a mandatory external obligation or a mandatory condition of a voluntary program other than the program established by the PSQIA; or (3) information assembled outside the provider’s [PSQIA system] because a hospital’s governing authority deems it necessary to the provider’s operation." This likely will not be the last word on this issue.