Kentucky Supreme Court Unanimously Applies Quality Assurance Privilege To Malpractice Action

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January 21, 2021
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Kentucky long-term care facilities recently won a landmark victory at the Kentucky Supreme Court protecting certain documents created by or at the request of the Quality Assurance Committee from disclosure in litigation.  Prior to the issuance of this Opinion, there was a paucity of guidance in Kentucky whether quality assurance documents were privileged.  In the unanimous decision, the Kentucky Supreme Court held the Federal Quality Assurance Privilege applies to malpractice litigation and protects Quality Assurance Committee documents from disclosure.  The appeal and underlying litigation is being handled by Steptoe & Johnson attorneys, Craig L. Johnson and James N. Martin Jr.  You may find the published Opinion linked here: Henderson County Health Care Corporation v. Wilson, 2020-SC-0001-MR

In the case, the Court analyzed plaintiff’s request for “all documentation” from any “personnel hired to evaluate the adequacy of care rendered to residents at the facility.” The facility objected to the request and did not produce chart audits and compliance observation reports prepared by an outside nurse consultant.  The Henderson Circuit Court and the Kentucky Court of Appeals both held the Quality Assurance Privilege did not apply and the facility was ordered to produce the documents to plaintiff.  The Kentucky Supreme Court reversed the lower courts, finding the facility had “established a Quality Assurance Performance Improvement (QAPI) committee” in accordance with the Federal Nursing Home Reform Act, 42 U.S.C.1 § 1396r and 42 C.F.R. 483.  The Court further found that the QAPI Committee contracted with the nurse consultant company “to evaluate the facility’s quality of care and provide guidance where care can be improved.”  The Kentucky Supreme Court emphasized the important work of Quality Assurance Committees stating that they “are key internal mechanisms that allow nursing homes opportunities to deal with quality concerns in a confidential manner and can help them sustain a culture of quality improvement.”  

The decision was groundbreaking since the Kentucky Supreme Court’s only previous opinion addressing the Quality Assurance Privilege found that no privilege had been proven.  Furthermore, a concurrence in the previous opinion stated if any privilege existed, it could only apply to documents actually authored by the Quality Assurance Committee members themselves and not those of outside consultants.  The previous concurrence specifically stated that courts should adopt a narrow approach to the Quality Assurance Privilege, the so-called “Missouri Rule”, based on the Missouri case, State ex rel. Boone Ret. Ctr. v. Hamilton, 946 S.W.2d 740 (Mo.1997).   In its new opinion, the Kentucky Supreme Court specifically rejected the narrow “Missouri Rule” and found that documents authored by outside consultants could be protected by the Quality Assurance Privilege.  The Court held that the privilege should be construed on a case by case basis and stated that “documents created by or at the behest of a quality assurance committee for quality assurance purposes of the committee will likely be protected by the FQAP.”  This is key language since it acknowledges that documents created “at the behest of” the Quality Assurance Committee deserve protection similar to those actually authored by the Quality Assurance Committee. 

TO SUM IT UP: 

The Kentucky Supreme Court has held for the first time that the Federal Quality Assurance Privilege applies to documents created by or at the request of a Quality Assurance Committee for quality assurance purposes.  The Opinion provides long-term facilities guidelines on which documents may or may not be afforded the privilege and are protected from disclosure.

If you have any questions about this Opinion or the Quality Assurance Privilege, please contact one of the authors of this alert.