Indivisibility of Patient Safety Work Product and Limits on Peer Review Privilege in Kentucky: Commentary on Baptist Healthcare System, Inc. d/b/a Baptist Health Paducah v. Kitchen

Supreme Court of Kentucky, rendered December 18, 2025, to be published (Nos. 2025‑SC‑0154‑MR & 2025‑SC‑0165‑MR).

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I. Introduction

This decision from the Supreme Court of Kentucky is a significant addition to the law governing discovery of internal hospital documents in medical negligence cases. It sits at the intersection of:

• the federal Patient Safety and Quality Improvement Act (PSQIA) and its patient safety work product privilege,
• Kentucky’s statutory peer review privilege (KRS 311.377), and
• Kentucky’s writ of prohibition jurisprudence in the context of allegedly privileged materials.

The case arises from a fall suffered by patient Marietta Gelanie Jones during a hospitalization at Baptist Healthcare System, Inc. d/b/a Baptist Health Paducah (“BHP”). Because Jones’ mental status was altered at the time, she has no memory of the fall. Her negligence suit against BHP prompted discovery requests for:

• an 8‑page Incident Report (sometimes called a “SAFE Report”), and
• a 40‑page Root Cause Analysis (“RCA”).

BHP refused to produce these documents, asserting:

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

The trial court ordered in camera review and then compelled:

• full production of the Incident Report, and
• production of the RCA with redactions limited to portions that would not “normally be contained in state‑mandated reports,” thereby ordering disclosure of “factual” portions about Jones’ fall.

BHP sought a writ of prohibition from the Court of Appeals. That court:

• Denied BHP’s petition as to the Incident Report (requiring its disclosure), but
• Granted a writ as to the RCA, holding that its factual portions could not be compelled despite the trial court’s effort to balance interests.

Both sides then sought review in the Supreme Court:

• BHP appealed the denial of writ relief as to the Incident Report.
• Jones cross‑appealed the grant of writ relief protecting the RCA.

Justice Bisig, writing for a unanimous Court (with one concurrence in result only and one Justice not sitting), affirmed the Court of Appeals. The opinion establishes and clarifies several important principles:

• A root cause analysis that qualifies as patient safety work product is protected in its entirety; there is no “factual portions” exception.
• An incident report created to comply with state regulatory incident‑tracking requirements is not PSQIA‑protected, even if the hospital also submits it to a patient safety organization.
• A contemporaneous, factual incident report that merely triggers a later root cause analysis is not protected by Kentucky’s peer review privilege.

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II. Summary of the Opinion

A. Procedural Posture

The case reaches the Supreme Court in a classic “certain special case” writ posture. The discovery order compelled production of documents claimed to be privileged. Under Collins v. Braden and Bender v. Eaton, violation of a privilege justifies writ review because:

• there is no adequate remedy by appeal—once disclosed, privileged information cannot be “un‑disclosed,” and
• the administration of justice would suffer from erroneous disclosure of privileged material.

Accordingly, this is one of the “special cases” in which writ relief is available even though the trial court acted within its jurisdiction.

B. Holdings in Brief

1. Writ availability: Claims of privilege fall within the category of “certain special cases” justifying a writ of prohibition; both the Court of Appeals and Supreme Court properly entertained the petitions.
2. Root Cause Analysis (RCA) – fully privileged as Patient Safety Work Product:
   • The RCA fits squarely within the PSQIA definition of patient safety work product (PSWP) (42 U.S.C. § 299b‑21(7)(A)).
   • The trial court erred in attempting to carve out and compel disclosure of the “factual information” from within the RCA.
   • The PSQIA contains no exception permitting production of factual portions of otherwise privileged PSWP.
   • The Court of Appeals correctly granted a writ barring production of any part of the RCA.
3. Incident Report – not PSQIA‑protected:
   • Although BHP submitted the Incident Report to a patient safety organization, the document was created to comply with state regulatory incident‑tracking requirements (902 KAR 20:016 § 3(4)(g)).
   • Under 42 U.S.C. § 299b‑21(7)(B)(ii) and HHS guidance, information created to satisfy external regulatory obligations is expressly excluded from PSWP, even if later reported within a patient safety evaluation system.
   • The Incident Report therefore is not shielded by the federal PSQIA privilege.
4. Incident Report – not protected by Kentucky’s peer review privilege:
   • KRS 311.377 protects documents generated in the course of retrospective review and evaluation of the competency of professional acts.
   • The Incident Report, created on the same day as the fall and described as an “internal incident report” documenting the circumstances, merely records facts and triggers the later RCA.
   • It is not itself part of the substantive retrospective evaluation process and thus falls outside the peer review privilege.
5. Result:
   • Writ properly granted to protect the RCA from any disclosure.
   • Writ properly denied as to the Incident Report, which remains discoverable.
   • The Court of Appeals’ decision is affirmed in full.

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III. Factual and Procedural Background

A. The Underlying Medical Incident

On May 2, 2022, Jones was admitted to BHP for symptoms associated with liver disease. During her inpatient stay:

• She experienced a fall while walking to the bathroom, accompanied by one BHP caregiver.
• Because of an altered mental state, she has no recollection of the fall.
• The next day, caregivers discovered a hip fracture; she underwent surgery on May 4, 2022, and was discharged a week later.

Jones sued BHP for negligence in failing to prevent or appropriately respond to the fall and its consequences.

B. The Discovery Dispute

Jones served discovery requesting “any and all incident reports” relative to her fall. BHP identified two responsive documents:

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

BHP refused production, asserting:

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

Jones moved to compel; BHP supported its privilege claims with:

• an affidavit from Tracy Phillips, BHP’s Director of Patient Safety, and
• a privilege log describing the documents and their asserted bases for privilege.

C. Trial Court Ruling

The trial court ordered in camera review of both documents. After reviewing them, the trial court found:

• BHP was mandated by law to prepare both the Incident Report and the RCA regarding the fall incident.
• Incident Report: ordered to be produced in full.
• Root Cause Analysis:
  • BHP could redact portions that would “not normally be contained in state‑mandated reports” (those parts were deemed PSQIA‑protected), but
  • BHP had to produce factual portions (e.g., where and how Jones fell, injuries, surgery, and follow‑up treatment).
• Peer review privilege:
  independently discoverable facts about Jones’ fall.
  • The absence of these facts from Jones’ medical record weighed heavily in favor of disclosure to avoid unfairness.

D. Court of Appeals Ruling

BHP petitioned the Court of Appeals for a writ of prohibition. The Court of Appeals held:

• Incident Report: Not privileged. It “triggered” the root cause analysis and would have been created even if no RCA were undertaken. It thus fell outside both PSQIA and peer review protections.
• Root Cause Analysis: Privileged in full under PSQIA. The lack of factual detail in the medical record did not justify piercing the federal privilege for the “factual portions” of an RCA.

The Court of Appeals granted a writ prohibiting enforcement of the discovery order as to the RCA’s factual portions but allowed disclosure of the Incident Report.

E. Cross‑Appeals to the Supreme Court

• BHP’s appeal: Challenged the refusal to prohibit enforcement of the discovery order as to the Incident Report.
• Jones’s cross‑appeal: Challenged the writ protecting the RCA from disclosure.

The Supreme Court affirmed the Court of Appeals in all respects.

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IV. Precedents and Authorities Cited

A. Writ Jurisprudence

1. Jewish Hosp. v. Perry, 626 S.W.3d 509 (Ky. 2021).
   • Reaffirmed that writs are extraordinary and disfavored.
   • Articulated the two classes of writs:
     • (1) where the lower court acts outside its jurisdiction, and
     • (2) where the lower court acts within its jurisdiction but errs and no adequate remedy by appeal exists.
   • Addressed peer review privilege and interpreted “including” in a statute as introducing a non‑exhaustive list.
2. Henderson County Health Care Corp. v. Wilson, 612 S.W.3d 811 (Ky. 2020).
   • Underscored that writ review is to be applied in a “cautious and conservative” manner.
3. Collins v. Braden, 384 S.W.3d 154 (Ky. 2012).
   • Recognized “certain special cases” where, even in the absence of irreparable harm, writs may issue to prevent a substantial miscarriage of justice and to preserve the orderly administration of justice.
   • Specifically held that potential violation of a privilege meets these criteria:
     “[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.”
4. Bender v. Eaton, 343 S.W.2d 799 (Ky. 1961).
   • Foundational case on writ practice; often cited for the “special cases” doctrine.

B. Federal PSQIA and Related Kentucky Authority

1. PSQIA Statute: 42 U.S.C. §§ 299b‑21–299b‑26.
   • Defines “patient safety work product” (PSWP) in 42 U.S.C. § 299b‑21(7)(A) as:
     • “data, reports, records, memoranda, analyses (such as root cause analyses), or written or oral statements”
     • assembled or developed by a provider for reporting to a patient safety organization (PSO) and actually reported to that PSO, and
     • which could result in improved patient safety, health care quality, or health care outcomes.
   • Defines exclusions in § 299b‑21(7)(B)(ii) for:
     • “information that is collected, maintained, or developed separately, or exists separately, from a patient safety evaluation system.”
2. HHS Guidance, 81 Fed. Reg. 32,655 (May 24, 2016).
   • Clarifies that the exclusion covers:
     “records generated or maintained as part of providers’ existing mandatory information collection activities” pursuant to “external reporting or recordkeeping obligations.”
   • States clearly:
     “any information that is prepared to meet any Federal, state, or local health oversight agency requirements is not [patient safety work product].”
3. Univ. of Kentucky v. Bunnell, 532 S.W.3d 658 (Ky. App. 2017).
   • Explained that a “root cause analysis” is any undertaking to identify the source of shortcomings or unintended consequences and is not unique to medicine, though commonly used there for analyzing medical errors.
   • Recognized root cause analyses as paradigmatic examples of PSQIA‑protected analyses where they meet statutory criteria.
4. Baptist Health Richmond, Inc. v. Clouse, 497 S.W.3d 759 (Ky. 2016).
   • Held that PSQIA does not shield documents that are produced to satisfy mandatory state reporting obligations.
   • Cites and aligns with HHS guidance on the difference between PSWP and external‑obligation documents.

C. Kentucky Peer Review Statute

1. KRS 311.377.
   • KRS 311.377(1) & (2) protect:
     “proceedings, records, opinions, conclusions, and recommendations” of specified entities when they are performing “retrospective review and evaluation of the competency of professional acts or conduct of other health care personnel.”
   • Jewish Hosp. v. Perry summarized the privilege:
     “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.”

D. Kentucky Regulatory Framework

1. 902 KAR 20:016 § 3(4)(g).
   • Requires hospitals to have:
     “effective procedures for tracking incidents, including transfusion reactions, drug reactions, and medication errors.”
   • BHP argued that “falls” are not among the listed incidents and thus outside the regulatory obligation.
   • The Court, citing Perry, interprets “including” as introducing a non‑exhaustive list; thus falls are within the broader category of “incidents.”

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V. Legal Reasoning and Key Holdings

A. Writ Standards and Their Application Here

The Court reiterates that writs are extraordinary remedies, disfavored and subject to cautious application. The key components of the standard, drawn from Perry, Wilson, Collins, and Bender, are:

• Two classes of writ cases:
  1. Lower court acting outside its jurisdiction.
  2. Lower court acting within jurisdiction but erroneously, with no adequate remedy by appeal.
• For the second class, typically, the petitioner must show irreparable injury.
• Special Cases Exception: Certain matters—such as claims involving statutory privileges—are “special cases” in which:
  • Irreparable harm is inherent because once privileged information is disclosed, it cannot be meaningfully recalled.
  • Disclosure would compromise the administration of justice.

Applying this framework, the Court holds (consistent with Collins) that potential violation of a privilege automatically qualifies as such a “special case.” Therefore:

• A writ is an appropriate remedy to prevent improper disclosure of truly privileged material.
• Conversely, if the material is not privileged, the extraordinary writ should not be used to insulate it from discovery.

Standard of review:

• Legal conclusions – de novo review.
• Factual findings – clear error review.
• Ultimate decision to grant or deny writ – abuse of discretion standard.

B. The Root Cause Analysis as Patient Safety Work Product

1. Fitting the RCA within the PSQIA Definition

The RCA clearly meets each element of the PSQIA’s definition of patient safety work product (42 U.S.C. § 299b‑21(7)(A)):

1. Form of the information: The statutory definition explicitly includes “analyses (such as root cause analyses).” The RCA is, by its nature and name, an “analysis.”
2. Prepared for reporting to a PSO and actually reported: Tracy Phillips’ affidavit established that:
   • The RCA was prepared by BHP for the purpose of reporting to a patient safety organization, and
   • It was indeed reported to a PSO.
3. Potential to improve patient safety or outcomes: Phillips testified that the RCA contained:
   • “detailed analysis of care processes,”
   • “operational suggestions for process improvements,” and
   • “key takeaways.”
   All of these are quintessential PSQIA‑type quality‑improvement content, easily capable of improving patient safety, quality, or outcomes.

The Court holds this showing sufficient to establish privilege. Notably, the trial court itself acknowledged that at least some portions of the RCA were privileged.

2. Rejecting a “Factual Portions” Exception

The trial court attempted to split the RCA into:

• Privileged evaluative/analytical portions, and
• Non‑privileged factual portions (e.g., descriptions of how and where Jones fell, what injuries occurred, and what follow‑up care she received).

The Supreme Court decisively rejects this approach for two reasons:

1. Statutory text protects the whole “report” or “analysis.” The PSQIA protects:
   “any data, reports, records, memoranda, analyses (such as root cause analyses), or written or oral statements.”
   There is no textual basis for excising “factual” subsections of an otherwise qualifying document. The Act operates at the level of the document/type of information, not individual data entries within that document.
2. No need‑based exception in the statute. The Act does not authorize courts to override the privilege based on:
   • a party’s litigation “need” for the factual information, or
   • gaps in the medical record.
   There is no statutory balancing test of the kind the trial court attempted to apply.

Footnote 4 (in substance) underscores an important distinction:

• While content within a PSWP document is off‑limits,
• Underlying facts are not themselves privileged and can be discovered by other means (e.g., charts, policies, depositions, interrogatories).

Thus, the Court draws a bright line: no factual carve‑out from PSWP, but plaintiffs are free to obtain the same facts from non‑privileged sources.

3. Holding

The Court holds that:

• The RCA is fully protected as patient safety work product.
• The trial court’s order compelling disclosure (even of just the factual portions) was erroneous.
• A writ of prohibition is proper to block enforcement of that erroneous discovery order.

C. Why the Incident Report Is Not Protected by PSQIA

1. The Statutory Exclusion for “Separate” Information

The PSQIA excludes from PSWP protection:

HHS guidance explains that this includes information prepared for:

• mandatory external reporting or recordkeeping—such as state regulatory requirements.

Therefore, a document may be:

• submitted to a PSO and used in a patient safety evaluation system, yet
• still fall outside PSQIA’s privilege if it was created to fulfill an external, legal obligation.

2. The Role of 902 KAR 20:016 and BHP’s Falls Policy

902 KAR 20:016 § 3(4)(g) requires hospitals to maintain:

To comply, BHP had a falls policy requiring nursing staff to complete a “SAFE Report” before the end of the shift in which a fall occurs.

The Court finds that the Incident Report at issue:

• is precisely such a SAFE Report, and
• was created as part of BHP’s external regulatory obligation to track incidents, including patient falls.

Supporting evidence includes:

• Phillips’ affidavit describing the report as a “SAFE Report,”
• the privilege log describing it as an “internal incident report” to “document the circumstances of the alleged incident,” and
• the fact that it was generated on the day of the fall, consistent with a contemporaneous incident‑tracking function rather than retrospective analysis.

3. Rejecting BHP’s Narrow Reading of “Incidents”

BHP argued that the regulation’s examples (“transfusion reactions, drug reactions, and medication errors”) indicate that falls are not “incidents” within its scope.

The Court rejects this:

• The regulation speaks broadly of “incidents” and then uses the listed items as examples.
• Citing Perry, the Court notes that “including” typically introduces a non‑exhaustive list.
• Therefore, falls are among the “incidents” that must be tracked under the regulation.

4. Application of the Exclusion

Because the Incident Report was:

• created and maintained to meet a state regulatory duty to track “incidents”, and
• only secondarily used within BHP’s patient safety evaluation system,

it falls squarely within the 42 U.S.C. § 299b‑21(7)(B)(ii) exclusion, as clarified by HHS and Clouse.

Thus:

• The Incident Report is not patient safety work product,
• even though BHP also submitted it to a PSO, and
• the trial court correctly refused PSQIA protection to it.

D. Why the Incident Report Is Not Protected by Peer Review Privilege

1. Scope of KRS 311.377

KRS 311.377 protects:

As summarized in Perry:

Thus, two features must be present:

1. The document must be generated by an appropriate peer review entity (e.g., a hospital committee or comparable body), and
2. It must be part of a process of retrospective evaluation of professional conduct or competency.

2. The Incident Report’s Actual Character

BHP attempted to bring the Incident Report within this privilege through Phillips’ affidavit, which labeled it a “retrospective review and evaluation of the competency of the conduct” of healthcare personnel.

The Court, however, looks at the surrounding record and finds otherwise:

• Privilege log: describes the document as an “internal incident report” documenting the “circumstances” of the incident—strongly indicating a factual narrative rather than evaluative conclusions.
• Timing: the report was created on the same day as the fall, suggesting it is a contemporaneous factual account—not a considered, retrospective scrutiny of professional conduct.
• Relationship to RCA: Phillips conceded that the Incident Report “triggered” the RCA. That phrasing implies:
  • the report serves as a starting point or signal that an event occurred,
  • after which the formal peer review (the RCA) begins,
  • rather than the report being part of the actual retrospective evaluative process.

In short, the Court sees the Incident Report as:

• a factual, immediate post‑event narrative,
• generated as part of compliance with an external incident‑tracking requirement,
• not part of the substantive peer review deliberations about provider competency.

3. Holding

Given these characteristics, the Court concludes:

• The Incident Report is not a document created in the course of “retrospective review and evaluation” of professional conduct.
• It therefore does not fall within KRS 311.377’s peer review privilege.
• The trial court and Court of Appeals correctly denied peer review protection to this document.

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VI. Complex Concepts Simplified

A. What Is a Writ of Prohibition?

A writ of prohibition is an extraordinary order from an appellate court to a lower court, telling the lower court to stop doing something. It is:

• not a routine appeal,
• used sparingly,
• often invoked to prevent:
  • a lower court from acting outside its authority, or
  • disclosure of privileged or highly sensitive information where an appeal after trial would be too late to fix the harm.

In this case, BHP used a writ petition to argue: “If the trial court makes us hand over these privileged documents now, we can’t un‑ring that bell later on appeal.”

B. Patient Safety Work Product and Patient Safety Organizations

The federal Patient Safety and Quality Improvement Act encourages hospitals and other healthcare providers to report and analyze mistakes and near misses without fear that these internal analyses will later be used against them in court. The basic structure:

1. Hospitals collect information about errors and safety events in a patient safety evaluation system (PSES).
2. They share this information (or analyses of it) with patient safety organizations (PSOs), specialized entities that aggregate data and help improve safety practices.
3. Certain categories of information within this system become patient safety work product (PSWP) and are shielded from discovery and use in litigation.

However, PSQIA:

• does not protect:
  • original medical records, billing records, or
  • documents created to satisfy external legal or regulatory obligations (like state‑mandated incident reports).
• does protect:
  • internal analyses (such as RCAs), reports, and discussions created exclusively within the PSES for reporting to a PSO and improving patient care.

C. Peer Review Privilege

Hospitals often have committees that review the quality and competency of physicians’ and nurses’ work—this process is called peer review. Kentucky’s peer review statute (KRS 311.377):

• seeks to ensure candid, critical review of professional performance,
• by making the committee’s internal “proceedings, records, opinions, conclusions, and recommendations” confidential and not discoverable.

But this protection applies only when the entity is actually performing:

• retrospective evaluation of professional acts or conduct,
• not to every hospital document that happens to mention a medical event.

In other words, a brief, factual entry like “Patient fell at 8:02 p.m. in bathroom” is not peer review. A committee debate about whether a nurse responded appropriately and whether discipline or retraining is needed is peer review.

D. In Camera Review

An in camera review is when the judge looks at documents privately (in chambers), outside the presence of the parties, to decide whether they are privileged or must be disclosed. It is often used when:

• one party asserts privilege,
• the other disputes it, and
• the court needs to see the documents to decide.

Here, the trial court examined the Incident Report and RCA in camera before issuing its discovery order.

E. Regulatory Incident Tracking vs. Patient Safety Evaluation Systems

Two overlapping but distinct systems are at issue:

1. Regulatory incident tracking system (e.g., SAFE Reports): Hospitals must track certain events because state regulations require them to do so. These records are:
   • created to comply with external law, and
   • remain discoverable; PSQIA does not shield them.
2. Patient safety evaluation system (PSES): Internal systems for collecting and analyzing error data specifically for PSO reporting and quality improvement. Documents created solely within this system and reported to a PSO can be privileged PSWP.

This case emphasizes that hospitals cannot make an otherwise discoverable, regulation‑driven document “magically privileged” simply by routing it through the PSES or sending it to a PSO.

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VII. Impact and Implications

A. For Kentucky Healthcare Providers

1. PSWP is indivisible: no factual carve‑outs. Providers can have greater confidence that if a document properly qualifies as PSWP—like a root cause analysis prepared for and sent to a PSO—the entire document is privileged. Courts in Kentucky should not parse such documents into privileged and non‑privileged sections based on “factual” versus “analytical” content.
2. Maintain clear separation between PSWP and compliance documents. Hospitals must:
   • continue generating documents required by regulators (e.g., incident reports) in a way that is distinct from PSWP, and
   • understand that these mandatory records are discoverable even if also used in PSO‑related activities.
3. Policy drafting and training. Compliance and risk‑management teams should:
   • carefully draft policies (like BHP’s falls policy) to identify which documents are:
     • for regulatory tracking, and
     • for patient safety evaluation and PSO reporting.
   • train staff so that factual incident reports are treated as potentially discoverable litigation documents, while RCAs and similar analyses are structured to satisfy PSQIA’s criteria.

B. For Plaintiffs and Their Counsel

1. Incident reports are often accessible. In Kentucky, incident reports created to comply with 902 KAR 20:016 (and similar regulations) are not PSQIA‑protected and, absent a separate privilege, are discoverable—even if the hospital later shares them with a PSO.
2. Root cause analyses remain off‑limits—but facts do not. Plaintiffs cannot compel production of an RCA that qualifies as PSWP, not even the “factual” parts. However, they remain free to obtain:
   • witness testimony,
   • medical records and chart notes,
   • policies and procedures, and
   • non‑PSWP internal communications
   that reveal the underlying facts of the incident.
3. Focus on the hospital’s regulatory obligations and internal policies. To resist overly broad claims of PSQIA privilege, plaintiffs should:
   • identify applicable regulations (like 902 KAR 20:016) that require certain records to be kept,
   • seek those records in discovery, and
   • use the hospital’s own policies to demonstrate that certain documents are compliance‑driven, not PSQIA‑driven.

C. For Trial Courts

This decision offers clearer guidance on handling PSQIA and peer review claims:

• Step 1: Confirm whether the claimed PSWP:
  • is a report/analysis of the type described in § 299b‑21(7)(A),
  • was assembled and reported to a PSO, and
  • could improve patient safety or quality.
• Step 2: Determine whether the information was created to meet external obligations (regulatory, accreditation, etc.); if so, it is likely excluded under § 299b‑21(7)(B)(ii), regardless of PSO reporting.
• Step 3: If PSQIA applies, do not carve out factual sections; the entire document is protected.
• Step 4: For peer review claims, ask:
  • Is this document part of an entity’s substantive retrospective evaluation of professional performance?
  • Or is it merely a factual incident record or trigger for later evaluation?
• Step 5: Consider in camera review where necessary, but recognize that even a strong perceived need for factual information does not justify breaching statutory privileges.

D. For Future Litigation and Policy

The case aligns Kentucky’s PSQIA jurisprudence firmly with:

• federal statutory text,
• HHS regulatory guidance, and
• prior Kentucky precedent in Clouse and Bunnell.

Potential future developments may include:

• Further litigation over whether particular hybrid documents (with both regulatory and quality‑improvement functions) are PSWP,
• More precise hospital policies distinguishing:
  • incident‑tracking documents (discoverable), from
  • peer review and PSQIA analyses (privileged),
• Possible legislative clarification of Kentucky’s peer review statutes to address contemporaneous factual incident reports.

E. For Writ Practice

The opinion:

• Reaffirms that disputes over privileged material are prime candidates for writ review as “certain special cases.”
• Confirms the importance of timely writ practice when a discovery order threatens to force disclosure of arguably privileged documents.

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VIII. Key Takeaways

• 1. No “factual portions” exception to PSQIA privilege. If a document qualifies as patient safety work product (e.g., a root cause analysis prepared for and reported to a PSO), the whole document is privileged. Courts in Kentucky may not order production of only its factual parts.
• 2. Incident reports created for regulatory compliance are not PSWP. Even if a hospital submits an incident report to a PSO, the report remains outside PSQIA’s privilege if it was created to satisfy state regulatory incident‑tracking obligations (such as 902 KAR 20:016).
• 3. Peer review privilege protects retrospective evaluations, not bare incident narratives. A contemporaneous, factual incident report that merely documents an occurrence and triggers a later review is not protected by KRS 311.377, which is limited to documents involved in substantive retrospective evaluation of professional competency.
• 4. Privileged documents are shielded, but facts are not. While PSQIA and peer review privileges bar production of certain internal documents, the underlying facts of an incident remain discoverable through other means (testimony, medical records, non‑privileged documents).
• 5. Writs are the correct vehicle to challenge discovery orders that threaten privilege. Because disclosure of privileged information cannot be undone, parties should use writ petitions to obtain immediate appellate review in these “special cases.”

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IX. Conclusion

Baptist Healthcare System, Inc. d/b/a Baptist Health Paducah v. Kitchen clarifies Kentucky law at a critical juncture where federal patient safety policy, state peer review protection, and civil discovery intersect.

The Court’s opinion firmly establishes that:

• When a hospital conducts a bona fide PSQIA root cause analysis for reporting to a PSO, that analysis is fully protected from civil discovery; courts may not order selective disclosure of factual segments.
• At the same time, hospitals cannot use PSQIA or peer review statutes to shield documents they are independently required by law to create, such as state‑mandated incident reports created contemporaneously with patient events.

By drawing a clean line between:

• protected quality‑improvement analyses (like RCAs), and
• discoverable regulatory compliance documents (like the Incident Report here),

the decision promotes transparency in litigation without undermining the core purposes of PSQIA and peer review: candid internal examination of medical errors and improved patient safety.

For Kentucky practitioners, this case is now a leading authority on both the scope of the PSQIA privilege and the boundaries of the state peer review privilege in the context of hospital incident documentation and internal investigations.