Derivative-Privilege Writs: Speculative Harm and Ripeness When Peer-Review Materials May Be Excepted Under KRS 311.377(3)

Case: Summit Medical Group, Inc. D/B/A St. Elizabeth Physicians v. Patricia M Summe
Court: Supreme Court of Kentucky
Date: June 25, 2026
Disposition: Affirmed (as to result only) and remanded
Publication status: Not to be published (RAP 40(D)); may be cited only under RAP 41 subject to limitations

1. Introduction

This original-action appeal arises from a discovery dispute in a medical-related civil case involving plaintiffs Ricky and Karen Grimes (real parties in interest) and defendants Summit Medical Group, Inc. d/b/a St. Elizabeth Physicians and Michael K. Davenport, M.D. (Appellants). The Kenton Circuit Court (Hon. Patricia M. Summe) issued discovery rulings that, as framed by Appellants, could require Dr. Davenport to obtain and produce “Completed Application Materials” that were submitted to Saint Elizabeth Medical Center, Inc. (also a real party in interest).

The dispute sits at the intersection of (i) Kentucky’s statutory peer-review privilege, KRS 311.377, and (ii) the extraordinary remedy of a writ of prohibition to prevent compelled disclosure of allegedly privileged material. This case is expressly a companion to Saint Elizabeth Medical Center, Inc. v. Hon. Patricia Summe, __ S.W.3d __, No. 2025-SC-0236-MR (Ky. Jun. 25, 2026), which addressed whether the Completed Application Materials fall within KRS 311.377(2) and whether KRS 311.377(3) nonetheless removes some or all of them from privilege.

The narrow issue here is a “corollary” one: even if the hospital asserts privilege over the materials, can the trial court compel Dr. Davenport to request those materials from the hospital and then produce them in discovery—effectively circumventing the hospital’s privilege claim? The Supreme Court declines to reach that question now, holding the writ request is premature and speculative given the necessary remand analysis under KRS 311.377(3) in the companion case.

2. Summary of the Opinion

The Court affirms the Court of Appeals “as to result only” in declining to issue a writ of prohibition and remands to the Kenton Circuit Court for further proceedings consistent with the companion opinion.

The Court’s key points are:

• Appellants’ asserted harm is derivative of Saint Elizabeth’s claimed KRS 311.377(2) privilege; if the materials are not privileged (or are excepted under KRS 311.377(3)), compelling Dr. Davenport to produce them is not a privileged disclosure.
• Appellants describe uncertainty about whether the trial court actually ordered them to obtain/produce the materials notwithstanding privilege, making their claim ambiguous and potentially speculative. The Court notes the better practice would have been a motion for clarification in the trial court.
• Because the companion case holds the materials are generally within KRS 311.377(2) but may be excepted under KRS 311.377(3), the trial court must conduct the proper statutory analysis on remand; until then, the “circumvention” question is not ripe.

Justice Nickell concurs in part and dissents in part, agreeing the writ was properly denied, but disagreeing with remand because—consistent with his dissent in the companion case—he would find no privilege established and thus see no need for further proceedings.

3. Analysis

3.1. Precedents Cited

Saint Elizabeth Medical Center, Inc. v. Hon. Patricia Summe, __ S.W.3d __, No. 2025-SC-0236-MR (Ky. Jun. 25, 2026) (companion case)

The companion opinion supplies the controlling framework. It holds the Completed Application Materials are subject to the general peer-review privilege in KRS 311.377(2), but that KRS 311.377(3) may except “materials or information otherwise independently discoverable.” That determination matters here because Appellants’ alleged injury depends on whether the information is actually privileged after applying subsection (3). The Court treats the requested writ as premature until the trial court performs the mandated statutory analysis on remand.

Collins v. Braden, 384 S.W.3d 154 (Ky. 2012) (quoting St. Luke Hosps., Inc. v. Kopowski)

The Court reiterates the standard proposition that an order compelling disclosure of privileged information commonly supports writ relief because “privileged information cannot be recalled once it has been disclosed,” satisfying both (i) lack of an adequate remedy by appeal and (ii) the “special cases” concern that the administration of justice would suffer.

However, the Court distinguishes this case: even though privilege-based writs are often appropriate, this specific writ request fails because the underlying privilege determination is not final and the asserted harm is not yet concrete.

St. Luke Hosps., Inc. v. Kopowski, 160 S.W.3d 771 (Ky. 2005)

Cited via Collins, St. Luke Hosps. stands for the practical irreversibility of privileged disclosures and thus why writ practice is sometimes necessary to protect privileges before disclosure occurs. Here, that logic is acknowledged but not applied because the Court views the claimed injury as not sufficiently established or imminent.

Caldwell v. Chauvin, 464 S.W.3d 139 (Ky. 2015)

The Court relies on Caldwell for the principle that speculative injury—even where the underlying subject is highly sensitive (there, HIPAA)—does not justify the extraordinary remedy of a writ. The Court quotes: “This injury is too speculative to merit such an extraordinary remedy.” This directly supports denying the writ where Appellants themselves profess uncertainty about what the trial court ordered and where the privilege/exception analysis is incomplete.

Barnes v. Goodman Christian, 626 S.W.3d 631 (Ky. 2021)

Cited alongside Caldwell, Barnes reinforces the insistence on a concrete, non-speculative showing before granting extraordinary relief.

Leanheart v. Humana, Inc., 933 S.W.2d 820 (Ky. 1996)

Leanheart anchors the statutory exception analysis: “the placement of otherwise discoverable records and information in a peer review file does not entitle them to the protection of KRS 311.377(2).” The Court “reaffirmed” that principle in the companion case, signaling that KRS 311.377(2) is not a blanket shield for all content merely because it resides in peer-review channels. That matters here because it underscores why a remand is necessary before deciding whether any compelled production would actually violate a privilege.

3.2. Legal Reasoning

A. The “derivative privilege” posture limits writ readiness

Unlike a typical privilege-writ scenario where the writ applicant is the privilege holder (or clearly stands in the privilege holder’s shoes), Appellants’ asserted injury is explicitly “derivative of Saint Elizabeth’s claimed privilege.” The Court frames the analysis pragmatically: if Saint Elizabeth has no privilege (or if KRS 311.377(3) strips privilege for some/all content), compelling Dr. Davenport to produce the material would not cause the irreparable harm that usually supports writ relief.

B. Ambiguity in the challenged order undermines extraordinary relief

The Court notes Appellants “couch their own claim in ambiguity” by expressing uncertainty about whether the trial court actually ordered them to obtain and produce the Completed Application Materials “in spite of” the hospital’s privilege claim. This matters because writ relief is not designed to resolve unclear or incomplete trial-court rulings. The Court identifies a straightforward trial-court remedy: file a motion for clarification, obtain a definite ruling, then seek appellate extraordinary relief if necessary.

C. Ripeness and speculation: the court will not decide a circumvention question in the abstract

Even assuming the trial court’s order was sufficiently definite, the Court treats the writ request as not ripe because the companion case requires the trial court, on remand, to decide whether KRS 311.377(3) applies to any of the Completed Application Materials. Only if the trial court (i) sustains privilege as to some material vis-à-vis Saint Elizabeth but then (ii) orders Appellants to produce the same privileged material, would the “circumvention” issue be squarely presented.

D. “Affirmed as to result only”: a narrow endorsement of outcome, not reasoning

The Supreme Court affirms the denial of the writ but signals that the Court of Appeals’ reasoning was infected by its erroneous reading of KRS 311.377(2) in the companion matter. The Supreme Court’s resolution thus preserves the outcome (no writ now) while clearing the analytical deck for the remand proceedings under the correct statutory framework.

3.3. Impact

1) Writ practice: privilege claims still powerful, but must be ripe and concrete

The opinion confirms Kentucky’s general receptivity to writs to prevent compelled disclosure of privileged materials (per Collins and St. Luke Hosps.), but underscores that privilege-writ doctrine is not automatic. Applicants must show an actual, imminent privileged disclosure, not uncertainty about what the order requires or a dispute contingent on unresolved statutory exceptions.

2) Litigation management: trial-court clarification is a prerequisite in practice

The Court’s emphasis on seeking clarification signals a practical rule for litigants: where the discovery order is ambiguous, a writ petition may fail as “speculative” unless the party first sharpens the issue through trial-court motion practice. This encourages disciplined issue framing and reduces advisory writ requests.

3) Peer-review privilege: subsection (3) will drive document-by-document disputes

By tying this case’s disposition to the companion case’s remand for KRS 311.377(3) analysis, the Court highlights that peer-review disputes will often turn on whether requested materials are “otherwise independently discoverable.” This points toward future litigation involving:

• segregation/redaction of privileged deliberative content versus independently discoverable underlying facts;
• source-based discovery (obtaining the same information from original sources rather than peer-review repositories); and
• careful evidentiary showings about a document’s origin, purpose, and availability outside peer review.

4. Complex Concepts Simplified

Writ of prohibition (extraordinary writ)

A writ of prohibition is an exceptional appellate remedy used to prevent a lower court from acting outside its authority or to prevent great injustice where ordinary appeal is inadequate. In discovery disputes, it is sometimes granted because once privileged information is produced, the harm cannot be undone.

Peer-review privilege under KRS 311.377(2)

KRS 311.377(2) generally protects certain records generated for designated medical peer-review and credentialing functions from being disclosed in litigation. The aim is to promote candid evaluation of medical professionals and quality of care.

The “independently discoverable” exception under KRS 311.377(3)

KRS 311.377(3) prevents parties from turning ordinary discoverable facts into privileged material merely by placing them in a peer-review file. If information exists elsewhere and is discoverable through ordinary means, its inclusion in a peer-review record does not necessarily shield it.

“Speculative” harm and ripeness

Courts do not issue extraordinary relief based on hypothetical injuries. If it is uncertain what the trial court ordered, or if it is unknown whether the materials are ultimately privileged after applying statutory exceptions, the claimed injury is not ripe for a writ.

5. Conclusion

This opinion does not finally resolve whether a trial court may compel a physician to obtain and produce materials that a hospital claims are privileged. Instead, it establishes a practical gatekeeping principle for extraordinary writs in privilege-adjacent discovery disputes: when the asserted injury is derivative of another party’s privilege and contingent on unresolved statutory analysis—especially where the underlying order is unclear—a writ is premature.

The decision’s significance lies in its disciplined approach to writ jurisdiction: Kentucky courts remain attentive to the irreparable nature of privileged disclosures, but they will require litigants to (i) secure clear trial-court rulings and (ii) complete the necessary statutory privilege/exception analysis before invoking extraordinary appellate intervention.