SB18: Peer Review Privilege & Medical Malpractice Actions

By Andrew DeSimone

Great publicity surrounded the passage of SB4 during the recent legislative session of the Kentucky General Assembly—the bill that established medical review panels to evaluate the merits of proposed malpractice suits before they can be filed in court. However, little attention was given to another bill related to medical malpractice litigation which attempted to exempt all “proceedings, records, opinions, conclusions, and recommendations” of a peer review committee from discovery in medical malpractice actions.[i] Ultimately, SB 18 did not become law during the 2017 legislative session. This wasn’t the first time the General Assembly tried to enact such a statute, and it probably won’t be the last. This article will examine the history and future of peer review privilege in Kentucky.

Medical peer review has been used for centuries to determine whether accepted standards of care have been met, and the confidentiality of their discussions and memoranda has traditionally been viewed as necessary to their effectiveness. Candid peer review can be an invaluable source of information for physicians to learn from unexpected events and prevent future treatment errors. All 50 states have enacted statues giving varying degrees of protection to medical peer reviewers to preserve the candor and efficacy of these committees. However, in Kentucky, this analysis is not protected from discovery in a medical malpractice action in which the plaintiff alleges the physician breached the standard of care. If a reviewing physician notes areas of criticism, this can act like a free expert opinion for the injured patient and can be potentially detrimental to the defending physician’s case.

Several failed attempts by the Kentucky General Assembly to enact legislation that would exempt peer review functions from discovery in a medical malpractice lawsuit. The Kentucky Supreme Court found the legislature’s first two endeavors unconstitutional for violating Section 51 of the Kentucky Constitution, which provides that “no law enacted by the General Assembly shall relate to more than one subject, and that shall be expressed in the title.” [ii]

In direct response to the Kentucky Supreme Court’s second invalidation of its peer review statute, the General Assembly attempted for a third time to exempt peer review products from discovery in medical malpractice lawsuits. The General Assembly states this intent in the preamble to the 1990 legislation, and posits a public policy argument that “the lack of such protection inhibits open and candid peer reviews; and…there is an urgent need to promote effective peer review for the protection and welfare of the public.”[iii] Although the legislative intent was clearly outlined in the Act’s preamble, the General Assembly failed to add the same unequivocal language to the statute. Instead, the legislature reenacted the earlier peer review statute without revising the operative language to clearly extend the peer review privilege to medical malpractice actions.

For that reason, the Kentucky Supreme Court yet again declined to extend the peer review privilege to medical malpractice actions in Sisters of Charity Health Systems v. Raikes,[iv] holding that the language of the statute limited the peer review privilege to suits against peer review entities. The court found that the wording of the statute only covered the credentialing of a physician, not medical malpractice actions. In other words, the actual credentialing process was privileged and not subject to discovery if a physician sued the credentialing entity or providers for statements made in the credentialing process. However, that same protection was not available in medical malpractice lawsuits.

Courts generally apply a rule of strict construction to interpretations of privilege, and so decline to extend privileges without clear direction from the legislature. Proponents for the application of peer review privilege to medical malpractice claims argue that the materials should be protected from discovery to preserve thoughtful, honest analysis of peer review committees. Those against the privilege advocate that plaintiffs should have unfettered access to evidence and such a privilege would infringe on their right to collect evidence.

In an effort to settle years of case law and debate, the Kentucky Senate renewed its efforts to extend the peer review privilege to medical malpractice actions in the most recent legislative session. SB 18 was pre-filed by Sen. Ralph Alvarado (the sponsor of SB4). The language of the proposed amendment explicitly protects medical malpractice actions, actions arising out of review of credentials or retrospective review, and evaluations that originate from the peer review process as being protected from discovery.[v]

SB18 easily passed the Senate by a vote of 22-12 early in the session. Several amendments were filed by a member of the House of Representatives to clarify that the underlying facts of a medical incident would be discoverable, but the opinions and conclusions of the reviewing physician would be shielded from discovery. SB 18 and its amendments stalled in the House and did not receive a vote by the full chamber before the 2017 legislative session adjourned.

It is unknown what will happen when the General Assembly reconvenes in January 2018, but the Senate is likely to raise the issue again. Currently, Kentucky is in the minority of jurisdictions that do not protect peer review discussions from discovery in medical malpractice actions. Many in the medical and legal communities would look forward to clarity on the issue and the passage of definitive legislation exempting peer review products from discovery in medical malpractice actions to preserve the candor and effectiveness of peer review committees.

This article originally appeared in M.D. Update Magazine. It is intended to be a summary of state law and does not constitute legal advice.

[i] S.B. 18, Reg. Sess. (Ky. 2017).

[ii] McGuffey v. Hall, 557 S.W.2d 401 (Ky. 1977).  Sweasy v. King’s Daughters Memorial Hospital, 771 S.W.2d 812 (Ky. 1989).

[iii] 1990 Ky. Acts, ch. 271.

[iv] Sisters of Charity Health Systems v. Raikes, 984 S.W.2d 464 (Ky. 1998).

[v] S.B. 18, Reg. Sess. (Ky. 2017). [Emphasis added to the proposed language.]