Employment Law Report

Senate Bill 18: Will the General Assembly Finally Clarify the Reach of the Peer Review Privilege?

By Rachel K. Mulloy

A bill passed in the Kentucky Senate (by a vote of 22-12) and currently awaiting House action in the Judiciary Committee proposes to amend the portion of KRS 311.377 pertaining to the confidentiality of certain medical records.  If passed, Senate Bill 18, sponsored by Senator Ralph Alvarado of Senate District 28, will prevent records of an entity, group, or individual performing a professional review function from being admissible in any civil action or administrative proceeding, including, specifically, medical malpractice actions.

Under the proposed amendment, KRS 311.377(2) reads as follows:

At all times in performing a designated professional review function, the proceedings, records, opinions, conclusions, and recommendations of any committee, board, commission, medical staff, professional standards review organization, or other entity, as referred to in subsection (1) of this section shall be confidential and privileged and shall not be subject to discovery, subpoena, or introduction into evidence, in any civil action in any court, including but not limited to medical malpractice actions, actions arising out of review of credentials or retrospective review and evaluation as referred to in subsection (1) of this section, and actions by an applicant for or grantee of staff privileges as referred to in subsection (1) of this section, or in any administrative proceeding before any board, body, or committee, whether federal, state, county, or city, except as specifically provided with regard to the board in KRS 311.605(2). This subsection shall not apply to any proceedings or matters governed exclusively by federal law or federal regulation.

The Kentucky Supreme Court has repeatedly held that KRS 311.377(2) was not enacted to protect defendants in a medical malpractice suit.  Rather, the Court has held that the peer review privilege created by KRS 311.377(2) is limited to suits against peer review entities referred to and protected in subsection (1) of that statute.  Relying on language in the Act’s Preamble, the Court has explained the General Assembly’s intent and purpose in enacting KRS 311.377(2) was to protect peer review participants, not to “hinder an aggrieved patient’s search for the truth in a medical malpractice suit against a negligent physician or hospital.”  In one opinion on this issue, Sisters of Charity Health Systems, Inc. v. Raikes (2009), the Court noted it had repeatedly held that KRS 311.377(2) had no application to medical malpractice suits, the first such opinion being in 1977, and since that time the General Assembly thrice reenacted KRS 311.377 without making any changes to the pertinent statutory language (“shall not be subject to discovery, subpoena, or introduction into evidence, in any civil action in any court . . . .”).  The Court found that by acting thusly, the General Assembly had adopted the interpretation given to KRS 311.377(2) by the Court, i.e., the peer review privilege did not extend to medical malpractice actions.

The new language introduced in SB 18 appears to be squarely at odds with the Kentucky Supreme Court’s longstanding interpretation of KRS 311.377(2).  Should SB 18 pass in the House and be signed into law, that interpretation may be primed for review.