Baptist Healthcare System, Inc. d/b/a Baptist Health Paducah v. Kitchen & Jones: Full Privilege for Root Cause Analyses Under the PSQIA and Limits on Incident Report Protection

Baptist Healthcare System, Inc. d/b/a Baptist Health Paducah v. Kitchen & Jones (Ky. 2025): Full Protection for Root Cause Analyses Under the PSQIA and No Privilege for Mandatory Incident Reports

I. Introduction

This Supreme Court of Kentucky decision addresses a recurring and increasingly important question in medical negligence litigation: what is protected from discovery when a hospital investigates an adverse event?

The Court’s opinion in Baptist Healthcare System, Inc. d/b/a Baptist Health Paducah v. Kitchen, with Marietta Gelanie Jones as the real party in interest and cross-appellant, clarifies the boundaries of two powerful evidentiary shields:

  • The federal Patient Safety Work Product privilege under the Patient Safety and Quality Improvement Act (PSQIA), 42 U.S.C. §§ 299b–21 to –26, and
  • Kentucky’s peer review privilege under KRS 311.377.

The Court draws a bright line between:

  • Root Cause Analyses (RCAs) created and reported to a Patient Safety Organization (PSO), which are fully protected as patient safety work product, and
  • Incident Reports prepared to satisfy state regulatory obligations to track incidents, which are not protected by either the PSQIA or Kentucky’s peer review statute even if later reported into a PSO system.

At the procedural level, the case also confirms that disputes over privileges in discovery constitute one of the “certain special cases” in which a writ of prohibition is available to prevent disclosure of privileged materials.

II. Case Background

A. Parties and procedural posture

  • Appellant / Cross-Appellee: Baptist Healthcare System, Inc. d/b/a Baptist Health Paducah (BHP), the hospital defendant in an underlying medical negligence action.
  • Real Party in Interest / Cross-Appellant: Marietta Gelanie Jones, a patient who sued BHP for negligence following a fall and hip fracture during hospitalization.
  • Appellee Judge: Hon. William Anthony Kitchen, McCracken Circuit Court Judge whose discovery orders were challenged via writ.

Procedurally, BHP filed a petition in the Court of Appeals seeking a writ of prohibition to prevent enforcement of the McCracken Circuit Court’s order compelling production of:

  • An 8-page Incident Report (also referred to as a “SAFE Report” or “Internal Report”), and
  • A 40-page Root Cause Analysis (RCA).

The Court of Appeals:

  • Denied the writ as to the Incident Report (requiring its production), but
  • Granted the writ as to the factual portions of the Root Cause Analysis (protecting it from disclosure).

Before the Supreme Court:

  • BHP appealed the denial of the writ as to the Incident Report, insisting both documents are privileged.
  • Jones cross-appealed, seeking disclosure of the factual portions of the Root Cause Analysis.

B. Factual background

Jones was admitted to BHP on May 2, 2022, with symptoms of liver disease and was in an altered mental state. While walking to the bathroom accompanied by a BHP caregiver, she fell. Because of her altered mental status, she has no memory of the fall. The next day, caregivers discovered a fractured hip. She underwent surgery on May 4 and was discharged a week later.

Jones later sued BHP, alleging negligence in:

  • Failing to prevent the fall, and/or
  • Failing to respond appropriately after the fall.

During discovery, Jones requested “any and all incident reports” related to her fall. BHP identified:

  • the 8-page Incident Report, and
  • the 40-page Root Cause Analysis

as responsive, but refused to produce them, asserting:

  • the federal PSQIA patient safety work product privilege, 42 U.S.C. § 299b-22(a), and
  • the Kentucky peer review privilege, KRS 311.377(2).

The trial court ordered an in camera review (private review by the judge), examined both documents, and then issued a nuanced order:

  • Found both documents were mandated by law and thus not protected in the same way as voluntary PSQIA submissions.
  • Ordered BHP to produce the entire Incident Report.
  • Ordered production of the Root Cause Analysis but allowed BHP to redact portions that contained information “not normally” in state-mandated reports, treating those portions as PSQIA-protected.
  • Rejected the Kentucky peer review privilege as to the Incident Report and the unredacted portions of the Root Cause Analysis, finding that those documents contained factual information about the fall that was otherwise not documented in Jones’s medical record.

Concerned that compelled disclosure would irreparably breach asserted privileges, BHP sought writ relief.

III. Summary of the Supreme Court’s Opinion

Justice Bisig, writing for the Court, affirmed the Court of Appeals in all respects:

  1. Writs in privilege disputes: The Court reaffirmed that cases involving potential violation of a privilege are among the “certain special cases” where writ relief is available even without a showing of irreparable harm in the traditional sense, because “privileged information cannot be recalled once it has been disclosed.”
  2. Root Cause Analysis – PSQIA privilege applies in full:
    • The 40-page Root Cause Analysis is fully protected as “patient safety work product” under the PSQIA.
    • The statute protects the entire analysis, including its factual portions; there is no statutory exception allowing courts to carve out and compel disclosure of “just the facts” embedded in a privileged analysis.
    • Accordingly, the trial court erred by ordering production of any portion of the Root Cause Analysis.
    • The writ properly issues to prohibit enforcement of that part of the discovery order.
  3. Incident Report – not PSQIA-protected:
    • The 8-page Incident Report was created to satisfy BHP’s external regulatory obligations under 902 KAR 20:016 Section 3(4)(g), which requires “effective procedures for tracking incidents.”
    • Documents generated to meet mandatory reporting or record-keeping requirements—even if also submitted into a patient safety evaluation system or to a PSO—are excluded from the PSQIA privilege by 42 U.S.C. § 299b‑21(7)(B)(ii) and the HHS 2016 Guidance.
    • Therefore, the Incident Report is not “patient safety work product” and is discoverable.
  4. Incident Report – not peer-review privileged:
    • KRS 311.377 protects only materials generated in the course of retrospective review and evaluation of the competency of healthcare providers’ professional conduct.
    • The Incident Report is essentially an immediate factual account of the fall, created the same day, not a substantive evaluation of provider performance.
    • It also functioned merely to “trigger” the Root Cause Analysis; it was not itself a retrospective peer review evaluation.
    • As such, the Incident Report falls outside the Kentucky peer review privilege.

Net result:

  • The entire Root Cause Analysis is privileged and shielded from discovery.
  • The Incident Report is neither PSQIA-protected nor peer-review privileged and must be produced.

IV. Detailed Analysis

A. Writ of Prohibition as the Procedural Vehicle

The Court began with the nature of writ relief, reiterating its longstanding characterization as an extraordinary and disfavored remedy. Relying on Jewish Hospital v. Perry, 626 S.W.3d 509 (Ky. 2021), and Henderson County Health Care Corp. v. Wilson, 612 S.W.3d 811 (Ky. 2020), the Court restated the two traditional classes of writ cases:

  1. Where the lower court acts outside its jurisdiction.
  2. Where the lower court acts within its jurisdiction but commits an error for which there is:
    • no adequate remedy by appeal, and
    • typically, irreparable injury if the error is not prevented.

Under Collins v. Braden, 384 S.W.3d 154 (Ky. 2012), drawing on Bender v. Eaton, 343 S.W.2d 799 (Ky. 1961), there exists a subset of “certain special cases” within the second class where a writ may issue even without proof of traditional irreparable harm, so long as:

  • “a substantial miscarriage of justice” would result if the lower court proceeds erroneously, and
  • correction is needed “in the interest of orderly judicial administration.”

Privilege disputes fall squarely into this category. The Court quoted Collins:

“[V]iolation of a privilege satisfies both the requirement of no adequate remedy by appeal, ‘because privileged information cannot be recalled once it has been disclosed,’ and the substitute requirement in ‘special cases’ that the administration of justice would suffer.”

Accordingly, the Court:

  • Confirmed that a writ of prohibition is an appropriate vehicle to raise disputes about the PSQIA and peer review privileges.
  • Applied the usual standard of review:
    • De novo review of the legal conclusions regarding privilege and statutory interpretation.
    • Clear error review of factual findings.
    • But then abuse of discretion review of the ultimate decision whether to issue or deny the writ.

B. Federal Patient Safety Work Product Privilege (PSQIA)

1. Statutory framework and elements

The PSQIA establishes a federal framework to encourage healthcare providers to voluntarily collect, analyze, and report data on patient safety events to Patient Safety Organizations (PSOs). In return for candor and robust internal self-critique, the statute offers a strong privilege protecting “patient safety work product” (PSWP) from discovery and use in litigation.

The Court quoted the core definition at 42 U.S.C. § 299b‑21(7)(A). In simplified terms, a document is PSWP if:

  1. It consists of data, reports, records, memoranda, analyses (such as root cause analyses), or written/oral statements.
  2. It is assembled or developed by a provider for reporting to a patient safety organization.
  3. It is actually reported to a patient safety organization.
  4. It could result in improved patient safety, health care quality, or outcomes.

The Court stressed the statutory example in the text itself: “analyses (such as root cause analyses)”—a key signal that Congress contemplated RCAs as paradigmatic PSWP.

At the same time, the PSQIA contains an important exclusion in § 299b‑21(7)(B)(ii): PSWP does not include:

“information that is collected, maintained, or developed separately, or exists separately, from a patient safety evaluation system.”

The U.S. Department of Health and Human Services (HHS) clarified this exclusion in its 2016 Guidance (81 Fed. Reg. 32,655, 32,657), emphasizing that:

  • Documents prepared to satisfy external reporting or recordkeeping obligations (e.g., state-mandated incident tracking, federal reporting, licensing or accreditation requirements) are not PSWP.
  • Providers cannot convert such externally required information into PSWP “simply” by placing it within a patient safety evaluation system or sending it to a PSO.

2. Application to the Root Cause Analysis

To support its PSQIA claim, BHP submitted an affidavit from its Director of Patient Safety, Tracy Phillips, which established the Root Cause Analysis met all statutory elements:

  • Form: The RCA is an “analysis,” expressly within the statutory list (“analyses (such as root cause analyses)”).
  • Purpose: It was prepared for reporting to a PSO.
  • Reporting: It was in fact reported to a PSO.
  • Substance: It contained “detailed analysis of care processes,” “operational suggestions for process improvements,” and “key takeaways,” all aimed at improving safety and quality.

The trial court acknowledged that significant portions of the Root Cause Analysis were privileged; however, it ordered BHP to produce the factual portions concerning Jones’s fall.

The Supreme Court squarely rejected this partial-disclosure approach, emphasizing two points:

  1. The definition of PSWP protects entire “reports, records, memoranda, analyses, or written or oral statements” as such; the statute does not distinguish “factual” from “evaluative” components within a single document.
  2. There is no statutory exception authorizing courts to carve out factual segments of a protected analysis for disclosure, even upon a showing of need in civil litigation.

Importantly, the Court noted that litigants are still free to discover the underlying facts of an incident by:

  • Requesting other non-privileged documents (e.g., medical records, incident logs, policies).
  • Serving interrogatories and requests for admission.
  • Deposing witnesses and staff.

What they cannot do is obtain the privileged RCA document itself, or any portion of it, where it meets the PSQIA definition of PSWP.

This is a key doctrinal holding: There is no “factual carve-out” from PSQIA protection for otherwise privileged analyses.

3. Application to the Incident Report: mandatory reporting exception

BHP argued that the Incident Report, like the RCA, was:

  • a “report,”
  • prepared for and submitted to a PSO,
  • and thus should be PSWP.

The Court acknowledged that Phillips’s affidavit stated the Incident Report had been prepared for and submitted to a PSO, but focused instead on the statutory exclusion and the HHS Guidance.

Under 902 KAR 20:016 Section 3(4)(g), Kentucky requires hospitals to:

have “[e]ffective procedures for tracking incidents, including transfusion reactions, drug reactions, and medication errors.”

BHP had a specific policy for falls, requiring nursing staff to complete a “SAFE Report” before the end of the shift in which a fall occurs. The record showed:

  • The Incident Report was a “SAFE Report” under this policy.
  • The privilege log stated that the Incident Report served to “document the circumstances of the alleged incident.”
  • The Report was generated the same day as Jones’s fall.

From these facts, the Court concluded that the Incident Report:

  • Was created pursuant to an external regulatory obligation—the requirement to track incidents—rather than as part of the internal patient safety evaluation system.
  • Falls within the PSQIA exclusion for information “collected, maintained, or developed separately, or exist[ing] separately, from a patient safety evaluation system.”

The Court further relied on the HHS Guidance’s explanation that:

“Any information that is prepared to meet any Federal, state, or local health oversight agency requirements is not [patient safety work product].”

It also cited Baptist Health Richmond, Inc. v. Clouse, 497 S.W.3d 759, 766 (Ky. 2016), which recognized that externally mandated reporting cannot be swept into PSQIA protection simply by routing it into a PSO.

Thus, even though BHP may have also sent the Incident Report into its patient safety system, that secondary use did not convert an externally required incident-tracking record into PSWP.

4. Regulatory interpretation: are falls “incidents” under 902 KAR 20:016?

BHP argued that falls were not among the “incidents” contemplated by 902 KAR 20:016 Section 3(4)(g), which lists “transfusion reactions, drug reactions, and medication errors” as examples. The Court rejected that narrow reading, invoking statutory interpretation principles:

  • The regulation uses the participle “including” before listing certain examples.
  • Per Jewish Hosp. v. Perry, 626 S.W.3d at 517, “including” typically signals a non-exhaustive list.

Accordingly, the Court held:

  • The regulation applies to incidents generally, not only to those specifically listed.
  • Falls are well within the scope of “incidents” that hospitals must track using effective procedures.

This interpretive move is important both for this case and as a broader reaffirmation that hospitals must track all significant adverse events, not just those expressly enumerated in sample lists.

C. Kentucky Peer Review Privilege (KRS 311.377)

1. Scope of the peer review privilege

KRS 311.377(1)–(2) protects from discovery the:

“proceedings, records, opinions, conclusions, and recommendations” of covered entities when the entity is performing retrospective review and evaluation of the competency of professional acts or conduct of other health care personnel.

As the Court restated (citing Perry):

“Put simply, the statute renders privileged any documents created by an entity engaged in the retrospective review of the professional conduct of health care providers.”

The privilege is thus focused not merely on any internal document, but on materials generated as part of a quality review process assessing provider performance after the fact.

2. Why the Incident Report is not peer-review privileged

BHP sought to bring the Incident Report within KRS 311.377 by having its Director of Patient Safety, Ms. Phillips, attest that the document was:

a “retrospective review and evaluation of the competency of the conduct of other health care personnel.”

The Court looked beyond this conclusory statement to the record as a whole, and found three key indicators that contradicted the claim:

  1. Privilege log description: BHP itself described the document as an “internal incident report” that “document[ed] the circumstances of the alleged incident,” implying a factual narrative, not an evaluative analysis.
  2. Timing: The Incident Report was created on the same day as the fall, pointing strongly to a contemporaneous factual account rather than a considered retrospective evaluation of competency.
  3. Relationship to the RCA: Phillips’s affidavit stated that the Incident Report “triggered” the Root Cause Analysis, suggesting it is a preliminary factual report that initiates a review process, not itself part of the substantive peer review evaluation.

On these facts, the Court held that the Incident Report:

  • Is a factual, immediate, post-event description of what occurred.
  • Does not contain the type of professional-competence evaluation or formal quality review contemplated by KRS 311.377.
  • Therefore, falls outside the peer review privilege.

The decision makes clear that hospitals cannot cloak ordinary incident documentation in peer review privilege merely by:

  • Labeling it as part of “peer review,” or
  • Having a quality officer attest in general terms that it relates to competency review.

Courts will scrutinize the document’s actual purpose, timing, and content to determine whether it truly reflects retrospective professional evaluation—or simply records what happened.

V. Precedents and Authorities Discussed

A. Jewish Hospital v. Perry, 626 S.W.3d 509 (Ky. 2021)

Perry is cited for several propositions:

  • The general disfavor of writs and the need for a cautious, conservative approach in granting them.
  • The standard of review in writ cases: de novo for legal issues, clear error for facts, abuse of discretion for the ultimate writ decision.
  • Statutory construction of “including” as typically introducing a non-exhaustive list, which the Court uses when interpreting “incidents” under 902 KAR 20:016.

The present opinion builds on Perry by applying its reasoning both:

  • Procedurally (when a writ is appropriate), and
  • Substantively (how to read regulatory lists introduced by “including”).

B. Collins v. Braden, 384 S.W.3d 154 (Ky. 2012) and Bender v. Eaton, 343 S.W.2d 799 (Ky. 1961)

These cases define the doctrine of “certain special cases” within writ jurisprudence. The Court cites them to justify treating privilege disputes as one of those special categories in which:

  • A writ may issue without the traditional showing of irreparable harm, and
  • Correcting the trial court’s error is necessary to avoid a “substantial miscarriage of justice.”

The current decision confirms that threatened violations of federal statutory privileges like the PSQIA, and state evidentiary privileges like peer review, fall squarely within the Bender/Collins framework.

C. Baptist Health Richmond, Inc. v. Clouse, 497 S.W.3d 759 (Ky. 2016)

Clouse is the key Kentucky case on the interaction between PSQIA and other obligations. It held, consistent with federal guidance, that:

  • Information prepared to satisfy external reporting obligations cannot be transformed into PSWP by submitting it to a PSO.

The present case uses Clouse to reinforce that:

  • The PSQIA privilege is broad, but not absolute—it yields for documents required by law or regulation to exist independently of the patient safety evaluation system.

D. University of Kentucky v. Bunnell, 532 S.W.3d 658 (Ky. App. 2017)

The Court cites Bunnell primarily for a definition of “root cause analysis,” noting it is:

“any undertaking to identify the source of shortcomings or other unintended consequences of any program, enterprise or effort.”

And that, in the medical context, it refers to a retrospective analysis of errors to improve patient safety.

By explicitly linking RCAs to the statutory language in the PSQIA and to the Bunnell understanding, the Court buttresses its conclusion that RCAs are exactly the type of work product Congress intended to shield.

VI. Impact and Practical Implications

A. For healthcare providers and hospital counsel

  1. RCAs can be robust and candid—but must be properly structured:
    • Well-documented RCAs that are created for and reported to a PSO, and that contain analysis and improvement recommendations, are strongly protected under PSQIA in Kentucky.
    • Hospitals can (and should) engage in thorough root cause analyses without fear that plaintiffs will discover those internal deliberations, so long as they satisfy the statutory PSWP criteria.
  2. Do not assume incident reports are privileged:
    • Documents created to comply with state regulations (such as 902 KAR 20:016’s incident tracking requirement), licensing rules, or other mandatory external obligations will generally be discoverable, even if later sent to a PSO.
    • Labeling a document “confidential” or routing it through risk management or peer review does not change its essential character if its primary purpose is regulatory compliance or factual reporting.
  3. Segregate PSWP from mandatory reporting:
    • Hospitals should carefully distinguish, in form and process, between:
      • Externally required incident reports and logs (non-privileged), and
      • Internal analytical documents created for PSO reporting (PSWP).
    • Policies and training should reflect that the same document should not be expected to serve both as regulatory compliance and as PSQIA PSWP.
  4. Peer review privilege is limited to true evaluative work:
    • Peer review protections will not attach to routine, contemporaneous factual incident reports.
    • To claim KRS 311.377, the document must truly be part of a retrospective review of provider competency, not simply part of initial data collection.

B. For plaintiffs and patient-side counsel

  1. Rely on multiple discovery avenues for facts:
    • You can obtain detailed factual information about adverse events through:
      • Non-privileged incident reports (like the SAFE Report here).
      • Medical records.
      • Policies and protocols.
      • Staff depositions and written discovery.
    • The opinion confirms that the facts themselves are not privileged; only the RCA document is.
  2. Challenge overbroad privilege claims:
    • Hospitals may assert PSQIA or peer review privilege over a broad range of documents. This opinion provides a roadmap to challenge those claims:
      • Ask: Was this document prepared to meet an external obligation?
      • Examine: Timing and purpose—immediate factual report vs. later evaluative meeting minutes.
      • Review: The hospital’s own policies and regulatory requirements (e.g., incident tracking rules).
  3. Do not expect access to RCAs themselves:
    • This decision effectively closes the door on efforts to obtain RCAs, even partially, so long as they are bona fide PSWP.
    • Strategically, discovery should focus on:
      • Underlying factual materials that exist outside the PSO system.
      • Testimony as to what actually happened, as opposed to the hospital’s later internal analysis.

C. For trial courts

  1. Use in camera review but respect statutory boundaries:
    • In camera review is appropriate to test privilege assertions, but judges cannot engage in an ad hoc balancing of need vs. privilege under the PSQIA.
    • If a document qualifies as PSWP, courts may not order production of “only the factual portions” as a compromise; the statute does not allow that carve-out.
  2. Separate factual records from evaluation documents:
    • When analyzing peer review claims, courts should distinguish:
      • Initial incident reports and factual narratives (generally discoverable), from
      • Meeting minutes, assessments, and performance evaluations (potentially privileged).
  3. Expect writ practice on close privilege questions:
    • This decision confirms that privilege disputes are appropriate subjects for writs.
    • Trial courts should be aware that misapplication of federal or state privileges can, and likely will, be reviewed mid-stream via writ petitions.

VII. Complex Concepts Simplified

  • Writ of Prohibition: A special, extraordinary order from a higher court telling a lower court to stop doing something, typically because the lower court is acting outside its authority or is about to do something that would cause harm the appellate process cannot fix—such as forcing disclosure of privileged information.
  • In Camera Review: A private review of documents by the judge alone, not shared with the other party, to assess whether they are privileged or should be produced.
  • Patient Safety Work Product (PSWP): Under the PSQIA, this includes data, reports, and analyses created by a healthcare provider for the purpose of reporting to a Patient Safety Organization and actually reported to one, as part of efforts to improve patient safety or quality. Such materials are generally protected from discovery.
  • Patient Safety Organization (PSO): An entity certified by HHS that collects and analyzes patient safety information from providers to help identify patterns, causes of errors, and ways to improve safety. Providers submit PSWP to PSOs as part of a protected learning system.
  • Patient Safety Evaluation System (PSES): A provider’s internal system for collecting, managing, and analyzing information that will become PSWP and be reported to a PSO.
  • Root Cause Analysis (RCA): A structured process used after an adverse event to identify underlying causes and contributing factors, and to recommend corrective actions to prevent recurrence. The PSQIA explicitly mentions RCAs as examples of PSWP.
  • Incident Report: A factual record created shortly after an event (like a fall, medication error, or equipment malfunction) to capture what happened, who was involved, and immediate actions taken. In Kentucky, hospitals must have procedures for tracking such incidents under 902 KAR 20:016.
  • External Reporting or Recordkeeping Obligations: Legal or regulatory requirements (state or federal) that compel a hospital to create and maintain certain records (e.g., incident logs, infection reports, specific notifications). Documents created to meet these obligations are not protected as PSWP even if also used in a patient safety system.
  • Peer Review Privilege (KRS 311.377): A state-law evidentiary privilege that protects documents and proceedings of entities conducting retrospective review of provider competency, such as hospital peer review committees evaluating a physician’s performance or incidents of potential malpractice.

VIII. Conclusion

The Supreme Court of Kentucky’s decision in this case sets a clear and important precedent at the intersection of federal patient safety law and state evidentiary privilege:

  • Root Cause Analyses: When genuinely prepared for PSO reporting and containing analytical content aimed at improving safety, they are fully protected as patient safety work product under the PSQIA. Courts may not compel production of even the “factual portions” of such documents.
  • Incident Reports: Factual reports created to satisfy state regulatory requirements for tracking incidents (including falls) are not PSQIA-protected, even if later used within a patient safety system, and do not qualify as peer review materials merely by virtue of being routed through quality or safety personnel.
  • Peer Review Privilege: KRS 311.377 applies only to documents generated as part of a retrospective evaluative process assessing provider competency, not to contemporaneous incident documentation.
  • Writ Practice: Because privileged information cannot be “unseen” once disclosed, privilege disputes remain prime candidates for writ relief in Kentucky.

Collectively, these holdings provide clearer guidance to hospitals on how to organize their safety and quality efforts and to litigants and courts on where the line lies between legitimate privacy for safety-related self-critique and the discoverability of core factual information in medical negligence cases.

Case Details

Year: 2025
Court: Supreme Court of Kentucky

Judge(s)

Bisig

Comments