Background
Ricky Grimes filed a medical malpractice action in Kenton Circuit Court against Saint Elizabeth Medical Center and others, alleging the hospital negligently granted Dr. Michael Davenport privileges to perform Da Vinci robot-assisted surgery. To obtain those privileges, Dr. Davenport had electronically completed an application submitted to Saint Elizabeth’s Credentialing Committee — the “Completed Application Materials.” During discovery, Grimes moved to compel production of that application. Saint Elizabeth resisted, asserting the materials were privileged under KRS 311.377, Kentucky’s peer-review confidentiality statute.
The trial court ordered the materials produced after conducting an in camera review, concluding the completed application fell outside KRS 311.377’s protection. Saint Elizabeth sought a writ of prohibition in the Court of Appeals, which denied relief, reasoning that the application was merely information supplied by Dr. Davenport himself — not the committee’s own evaluative work product — and therefore did not constitute a “record” of a designated professional review function.
Saint Elizabeth appealed to the Kentucky Supreme Court, which accepted the pure question of statutory interpretation de novo: whether a physician’s completed credentialing application, submitted to a hospital’s credentials committee, constitutes a privileged “record” under KRS 311.377(2).
The Court’s Holding
The Kentucky Supreme Court reversed the Court of Appeals and granted the writ of prohibition. The Court held that the Completed Application Materials are a “record” within the meaning of KRS 311.377(2) because the document initiates the credentialing process and is therefore necessarily a part of the designated professional review function. Drawing on the statute’s plain text, the Court reasoned that “proceedings” and “records” are listed separately from “opinions, conclusions, and recommendations,” meaning a document need not contain the committee’s own mental impressions to qualify as a privileged record. Just as a complaint is unquestionably part of a lawsuit even though it predates the court’s deliberations, the application that triggers credentialing review is part of that review.
The Court nonetheless emphasized that this general privilege is not absolute. Under KRS 311.377(3) and the longstanding rule of Leanhart v. Humana, Inc., 933 S.W.2d 820 (Ky. 1996), information that is independently discoverable does not become privileged merely because it ends up in a peer-review file. The Court rejected Saint Elizabeth’s suggestion that the 2018 amendments to KRS 311.377(2) had sub silentio overruled Leanhart, observing that KRS 311.377(3) was left untouched and that the legislature’s failure to abrogate a thirty-year-old judicial interpretation is strong evidence of acquiescence.
The Court vacated the trial court’s disclosure order and remanded with instructions to apply the proper two-step analysis: first, the Completed Application Materials are generally privileged under KRS 311.377(2); second, the trial court must determine whether any specific information within them is independently discoverable and thus falls within the KRS 311.377(3) exception. The Court also reminded Saint Elizabeth that the burden of proving privilege rests on the party asserting it, and that in camera review should not be used to shift that burden to the court.
Key Takeaways
- A physician’s completed credentialing application submitted to a hospital credentials committee is a “record” of a designated professional review function and is generally privileged under KRS 311.377(2); the privilege is not limited to documents that reflect the committee’s own opinions or deliberations.
- Leanhart v. Humana remains good law: independently discoverable information does not become privileged simply because it is placed in a peer-review file, and the 2018 amendments to KRS 311.377(2) did not alter that principle.
- On remand, trial courts must conduct a document-specific analysis under KRS 311.377(3) to identify any information within the application that could be obtained through independent discovery channels — general, categorical privilege assertions are insufficient.
- Writ of prohibition is an available remedy when a trial court orders disclosure of potentially privileged materials, because disclosure cannot be undone on appeal.
Why It Matters
This decision resolves a significant gap in Kentucky’s peer-review privilege law by establishing that the credentialing process begins — and the privilege attaches — at the moment a physician submits an application, not only when a committee begins its internal deliberations. Hospitals and health systems across Kentucky can now assert KRS 311.377(2) protection over completed credentialing applications as a class of records, a question that had divided the lower courts.
At the same time, the Court’s reaffirmation of Leanhart and the KRS 311.377(3) exception preserves meaningful plaintiff access to independently sourced facts about a physician’s qualifications. Plaintiffs in negligent-credentialing cases will still be able to obtain training records, board certifications, prior employment verifications, and similar materials through direct discovery from third parties; they simply cannot reach those materials via the credentialing file itself. Defense counsel for hospitals should take note of the Court’s pointed reminder that privilege must be demonstrated with specificity — blanket privilege logs and reflexive in camera submissions will not suffice.