Court Gives Patient Safety Documents to Plaintiff Before Privilege Ruling Appeal

An infant was born with brain damage and quadriplegia, among other conditions. The family sued the hospital for medical negligence. During the course of discovery, the family requested production from the hospital of various hospital documents relating to patient safety— documents the hospital was required by law to create and maintain involving the post-occurrence review and peer-review process.


The hospital argued the documents were protected under federal law. The family sought and received from the Jefferson Circuit Court, Division I, an order compelling the hospital to produce the documents. The trial court conducted an in-camera review of the documents and determined they were not privileged. The following day, the hospital petitioned the Court of Appeals for a writ of prohibition as well as a request for an order staying execution of the trial court’s discovery order.


A nurse who treated the infant during her time at the hospital was scheduled to be deposed two days after the trial court entered its order compelling the production of the disputed documents and denying the hospital’s privilege claim. The trial court conducted an emergency hearing after the hospital filed its petition to determine if the nurse’s deposition could proceed as scheduled. The hospital was unable to get a hearing on its motion in the Court of Appeals before the emergency hearing with the trial court. The family explained that the deposition had been scheduled for months and any further delay would be lengthy because the nurse was pregnant and nearing her delivery date. The family argued that even though it wanted to use the disputed documents at the nurse’s deposition it mostly wanted the deposition to proceed with or without the disputed documents. After hearing arguments, the trial court ruled that the nurse’s deposition should proceed as scheduled and the disputed documents should be provided to the family. The trial court then handed the copies of the disputed documents that the hospital had submitted for in-camera review directly to counsel for the family, in open court and on the record.


The Court of Appeals dismissed as moot the hospital’s appeal.


The Supreme Court of Kentucky reversed. The court held that the Court of Appeals abused its discretion because its decision was not based on sound legal principles.


The Court of Appeals abused its discretion because its decision was not based on sound legal principles. The court reasoned that the hospital’s appeal was not moot because relief could still be afforded despite the allegedly privileged documents having been provided to the family. The trial court cannot produce documents that a party alleges are privileged in the face of a writ challenging the trial court’s determination that they are not privileged. When a trial court conducts an in-camera review of documents, determines that production is appropriate and so orders, it should, as a matter of course, provide the party who submitted the documents for in-camera review an opportunity to comply with the court’s order or stand in contempt. The trial court’s production of the documents in conjunction with the appellate court’s decision effectively precludes a party from challenging a trial court’s privilege ruling. A trial court’s ruling on an asserted privilege should not be insulated from review.


The Supreme Court of Kentucky reversed the appellate court’s dismissal of the hospital’s discovery dispute.


See: Norton Hospitals, Inc. v. Willett, 2016 WL 1068464 (Ky., March 17, 2016) (not designated for publication).


See also Medical Law Perspectives, January 2015 Report: Mothers, Infants, and Obstetrical Injuries: Labor and Delivery Liability


See the Medical Law Perspectives July 31, 2015, Blog: Hospital’s Policies, Procedures Not Discoverable in Vicarious Liability Suit 


See the Medical Law Perspectives May 6, 2015, Blog: Hospital Incident Reports Under Scrutiny Again; In Camera Review Found Necessary To Determine Discoverability


See the Medical Law Perspectives March 2, 2015, Blog: Discovery of Hospital Incident Reports: Prepare for In Camera Review; Discovery Likely