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By: Kyle Virgin
The discoverability of peer review information in healthcare litigation is a hot-button issue across the country and Kentucky is no different. In 2018, the Kentucky General Assembly amended KRS 311.377 to state that peer review information “shall not be subject to discovery, subpoena, or introduction into evidence, in any civil action in any court, including but not limited to medical malpractice actions…” Last Thursday, the Supreme Court of Kentucky provided some much-needed clarity regarding the scope of the protections afforded by KRS 311.377 as amended.
In Jewish Hospital v. Honorable Mitch Perry, Jefferson Circuit Court Judge, et al., the Court granted a writ of prohibition filed by the hospital aimed at prohibiting the use of a root-cause analysis at trial. Importantly, the opinion addresses whether KRS 311.377 should be applied retroactively to cases pending when the amendment was passed and, also, if the specific root-cause analysis at issue is privileged under the statute.
As for retroactivity, the Court focused on the effect of the amendment on the pending litigation and held that KRS 311.377 is procedural in nature thus allowing it to be applied retroactively to previously pending litigation and/or peer review actions that occurred prior to the amendment of the statute.
After concluding that the statute could be applied retroactively, the Court provided guidance regarding the scope of the protections afforded. Ultimately, the Court held that KRS 311.377 offers broader protections than the federal protections provided by the Patient Safety and Quality Improvement Act of 2005. The important point here being that the statute privileges materials even if they are not submitted to another body as is required by the Patient Safety and Quality Improvement Act of 2005.
Healthcare entities who routinely participate in peer review processes should take note of this decision and take the necessary steps to ensure that any such reviews are protected as applicable.
For more information, please contact Kyle Virgin at [email protected]