RENDERED: JUNE 25, 2026
TO BE PUBLISHED
Supreme Court of Kentucky
2025-SC-0236-MR
SAINT ELIZABETH MEDICAL CENTER, INC. APPELLANT
ON APPEAL FROM COURT OF APPEALS
V. NO. 2024-CA-1386
KENTON CIRCUIT COURT, NO. 20-CI-01729
HONORABLE PATRICIA M. SUMME, APPELLEE JUDGE, KENTON CIRCUIT COURT
AND
RICKY GRIMES; KAREN GRIMES; REAL PARTIES IN INTEREST/ ANTHEM HEALTH PLANS OF KENTUCKY; APPELLEES SUMMIT MEDICAL GROUP, INC.; AND
MICHAEL K. DAVENPORT, M.D.
OPINION AND ORDER OF THE COURT BY JUSTICE CONLEY
REVERSING AND REMANDING
This case is before the Court upon appeal from the Court of Appeals’
decision denying a writ of prohibition sought by Appellant, Saint Elizabeth
Medical Center, Inc., concerning the interpretation of KRS 311.377.
Specifically, the question is whether the Completed Application Materials—a
doctor’s answers to a multitude of questions propounded by Saint Elizabeth’s
Credentials Committee as part of its process granting privileges to said doctor—
is privileged information within the meaning of KRS 311.377. We cannot agree
with the Real Parties in Interest’s insistence that the Completed Application
Materials are separate and distinct from the credentialing process and can never be privileged. Conversely, we cannot agree with Saint Elizabeth’s
insistence that merely by being a record of the Credentialing Committee, the
information within the Materials is always privileged.
The Completed Application Materials are a part of the credentialing
process and are a record of the credentialing process, therefore, generally
privileged under KRS 311.377(2). Under the circumstances of this case, both
the trial court and Court of Appeals erred in holding KRS 311.377(2) did not
apply. Accordingly, the Court of Appeals is reversed, and the writ of prohibition
will lie. Specific information disclosed in the Completed Application Materials,
however, is not always privileged because that information may be discovered
independently of the process of the Credentialing Committee. KRS 311.377(3).
“[T]he placement of otherwise discoverable records and information in a peer
review file does not entitle them to the protection of KRS 311.377(2).” Leanhart
v. Humana, Inc., 933 S.W.2d 820, 821 (Ky. 1996). The amendments to KRS
311.377 in 2018 do not alter the principle affirmed in Leanhart. 2018 Ky. Acts
11. On remand, the trial court will have the opportunity to re-evaluate the
Completed Application Materials to determine if any information contained in it
meets the exception contained in KRS 311.377(3).
We reverse the Court of Appeals, vacate the trial court’s order, and
remand to Kenton Circuit Court to conduct the proper statutory analysis,
namely, to determine if the information in the Completed Application Materials,
that is generally privileged under KRS 311.377(2), meets the exception to that
privilege contained in KRS 311.377(3) as recognized by Leanhart.
2
I. Facts and Procedural Posture
This case is rather convoluted. The underlying facts of Ricky Grimes’
injury are irrelevant, although it is helpful to know Grimes’ injuries are alleged
to have stemmed from Dr. Michael Davenport’s performance of a Da Vinci
robot-assisted surgery. Dr. Davenport has privileges at Saint Elizabeth to use
the Da Vinci surgical robot on its premises according to its Credentialing
Committee. To obtain this privilege, Dr. Davenport electronically filled out the
Application Materials and submitted them to the Credentialing Committee. In
other words, the Completed Application Materials initiated the process of
obtaining the privilege. After his surgery, Grimes eventually filed suit alleging
that Saint Elizabeth negligently granted Dr. Davenport privileges to perform the
surgery.
Over a period of several months in 2024, multiple motions were filed to
compel discovery of a multitude of documents. In June 2024, a motion was
filed seeking to compel, inter alia, the Completed Application Materials. Saint
Elizabeth responded with a privilege log, which generally asserted the privilege
contained in KRS 311.377 as applicable to the entirety of the Materials. On
August 12, 2024, Saint Elizabeth filed a motion for in camera review of the
Materials. On August 13, the trial court granted the June motion to compel but
ordered the Completed Application Materials be submitted for in camera review.
On September 27, 2024, after reviewing the Materials, the trial court held “the
3
original credentialing applications and [robotic] standards 1 are not covered by
KRS 311.377 nor any other protection and should be produced unredacted.”
Despite having a privilege log and having conducted in camera review, the trial
court allowed Saint Elizabeth to file further objections to its order. Those
objections and the response of Grimes were filed by the end of October. On
November 15, 2024, Saint Elizabeth filed for the writ of prohibition in the Court
of Appeals.
Complicating this dispute is Saint Elizabeth’s repeated assertion that it
agrees with the general principle affirmed in Leanhart that otherwise
discoverable materials do not become privileged merely by being placed in the
records of the Credentialing Committee. Saint Elizabeth affirms multiple times
that it has disclosed such discoverable material from the entirety of its
credentialing file for Dr. Davenport. This raises the question, though, of what
exactly about the Completed Application Materials is privileged? The best
answer Saint Elizabeth gives is that the document itself is a part of the record
for the credentialing process and is privileged under KRS 311.377. That statute
states,
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 . .
. shall be confidential and privileged and shall not be subject to
discovery, subpoena, or introduction into evidence . . . .
1 There was a separate dispute before a separate Court of Appeals panel
involving whether to grant a writ of prohibition for “the portion of a blank application for privileges that addressed performing Da Vinci robotic surgery at the time.” The Court of Appeals denied the writ and its order was not appealed.
4
KRS 311.377(2). According to Saint Elizabeth, by filling out the Credentialing
Application and answering the questions developed and propounded by the
Credentialing Committee, Dr. Davenport initiated the Credentialing process;
that it is an integral, indeed seminal, part of a “designated peer review
function” and is a “record” of the Credentialing Committee; ergo, privileged.
Grimes responds, “the plain language of the [sic] KRS 311.377 only
provides protection for . . . the review or decision-making of whether to grant a
particular physician credentials.” In other words, Grimes contends the
Completed Application Materials are the answers of Dr. Davenport and “do not
contain the protected evaluative proceedings, records, or conclusions of a peer
review entity engaged in the review of credentials.”
The Court of Appeals agreed with Grimes, holding,
[T]he document was prepared by Dr. Davenport and submitted to a
committee, which only then began the process of its professional
review function by assessing Dr. Davenport’s qualifications.
The Real Parties in Interest further point out the distinction
between the application itself and related documents prepared by
the committee in the course of reviewing the application. The latter
would evidence its mental impressions and the reasons for its
credentialing decision. The former is simply information provided
by someone else. While we recognize this may be considered a fine
line, we view this distinction as meaningful. The trial court’s order
requires only the production of the completed application, which
did ultimately give rise to the “designated review function.” The
trial court did not order production of documents related to the
application which might actually evidence the performance of the
review.
5
Thus, the Court of Appeals held the Completed Application Materials are
not within the scope of KRS 311.377(2) and declined to issue a writ. Saint
Elizabeth appealed, and we now address the merits.
II. Analysis
It is unnecessary to discourse at length upon the standards for a writ of
prohibition. We routinely entertain petitions for writs of prohibition involving
the potential disclosure of privileged materials. “This Court's precedent holds
that violation of a privilege satisfies both the requirement of no adequate
remedy by appeal, ‘because privileged information cannot be recalled once it
has been disclosed,’ and the substitute requirement in ‘special cases’ that the
administration of justice would suffer.” Collins v. Braden, 384 S.W.3d 154, 158
(Ky. 2012) (quoting St. Luke Hosps., Inc. v. Kopowski, 160 S.W.3d 771, 775 (Ky.
2005)). “Thus, remedy by a writ of prohibition is available to a petitioner
claiming the potential violation of a privilege. Such relief will be granted,
however, only upon a showing that the lower court has improperly ordered a
disclosure that would violate a privilege.” Id. (internal citations omitted).
“Because of the discretion intrinsic to the issuance of a writ, the decision
of the Court of Appeals is typically reviewed for an abuse of discretion.” S. Fin.
Life Ins. Co. v. Combs, 413 S.W.3d 921, 926 (Ky. 2013). When the petition only
presents a question of law, however, a de novo standard of review is applied. Id.
There are no factual disputes in this case, and its resolution involves only
settling the interpretation of KRS 311.377; therefore, we render no deference to
the Court of Appeals. Nonetheless, “[i]t is important to note that the granting of
6
a writ is an inherently discretionary decision; and even if all the requirements
for the issuance of a writ are met, it is still within the discretion of the court to
deny the issuance of the writ.” Id.
The parties agree that Saint Elizabeth is a covered entity under KRS
311.377 and was performing a “designated professional review function” when
it granted Dr. Davenport privileges. KRS 311.377(2). When a covered entity is
performing a designated professional review function, KRS 311.377(2)
privileges from disclosure all “the proceedings, records, opinions, conclusions,
and recommendations of” said covered entity. Grimes and the Court of Appeals
rely on a distinction between Dr. Davenport submitting information to the
Credentialing Committee and the Committee’s discussions and review of that
information. The Court of Appeals conceded this was a fine line—and it is. The
error is such line drawing is neither compelled nor warranted by the statutory
language.
We interpret statutes according to their plain meaning. Commonwealth v.
Grise, 558 S.W.3d 923, 929 n.28 (Ky. 2018). By listing “the proceedings” and
“records” separately from “opinions, conclusions, and recommendations[,]” the
General Assembly created distinctions between each that cannot be ignored.
The Court of Appeals’ opinion, however, holds only those records that contain
the “opinions, conclusions, and recommendations” of the entity performing the
designated professional review function are protected. The lower court couched
this in terms of “mental impressions and reasons for its credentialing decision,”
but the effect is the same. The Court of Appeals read the statute as if “opinions,
7
conclusions, and recommendations” modified “records,” which is not justified
by the comma in the text. Put plainly, the statute does not read “proceedings
and records of opinions, conclusions, and recommendations.” It treats each of
these five things as separate and distinct.
Because a “record” is something independent of “opinions, conclusions,
and recommendations[,]” Saint Elizabeth persuasively argues and analogizes
the submission of the Completed Application Materials to the filing of a
complaint in a court of law. Both documents initiate a proceeding. Just as no
one would be so bold as to deny the complaint is a part of the lawsuit,
similarly, the Completed Application Materials are a part of the “designated
professional review function.” The credentialing process does not occur but for
the submission of the Completed Application Materials. Accordingly, it is a
“record” privileged by KRS 311.377(2). We agree with Saint Elizabeth that a
document which initiates a designated professional review function is
necessarily a part of that designated professional review function. We conclude
the Completed Application Materials submitted by Dr. Davenport are a record
within the meaning of KRS 311.377(2) and are generally privileged. Insofar as
the Court of Appeals held the Completed Application Materials are outside the
scope of KRS 311.377(2), it is reversed. This, however, is a discrete question of
law within a broader body of law.
We have long held “the placement of otherwise discoverable records and
information in a peer review file does not entitle them to the protection of KRS
311.377(2).” Leanhart, 933 S.W.2d at 821. It could be stated more generally
8
that the placement of discoverable materials or information in an otherwise
privileged file does not imbue said discoverable materials or information with
the privilege. Leanhart specifically relied upon KRS 311.377(3) for its holding,
which states:
Nothing in subsection (2) of this section shall be construed to
restrict or limit the right to discover or use in any civil action or
other administrative proceeding any evidence, document, or record
which is subject to discovery independently of the proceedings of
the entity to which subsection (1) of this section refers.
Saint Elizabeth affirms this principle repeatedly but hints that Leanhart may
no longer be good law because of amendments to KRS 311.377 in 2018. We
find no basis for that suggestion. The 2018 amendment added the following
underlined language:
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). The confidentiality and privilege
protections of this subsection shall only be available to a person or
entity that attests to participating in a patient safety and quality
improvement initiative, including the program established by the
Patient Safety and Quality Improvement Act of 2005, 42 U.S.C.
secs. 299b-21 to 299b-26. This subsection shall not apply to any
proceedings or matters governed exclusively by federal law or
federal regulation.
9
KRS 311.377(2); KY LEGIS 11 (2018), 2018 Kentucky Laws Ch. 11 (HB 4). KRS
311.377(3) remained untouched by the General Assembly.
Nothing in this new language can plausibly be interpreted as legislatively
overruling or otherwise countermanding the rule affirmed in Leanhart. “The
failure of the legislature to change a known judicial interpretation of a statute
is extremely persuasive evidence of the true legislative intent. There is a strong
implication that the legislature agrees with a prior court interpretation of its
statute when it does not amend the statute interpreted.” Commonwealth v.
Bloyer, 647 S.W.3d 219, 225 (Ky. 2022) (quoting Toyota Motor Mfg., Ky., Inc. v.
Prichard, 532 S.W.3d 633, 636 (Ky. 2017)). Leanhart has been on the books for
nigh on thirty years, and the lone legislative amendment to KRS 311.377(2)
since its initial passage in 1990 does not in any way disparage Leanhart’s
holding. “This lack of action by the General Assembly evidences its
acquiescence with our interpretation.” Id.
Accordingly, a writ of prohibition does lie. The trial court has ordered
disclosure of the Completed Application Materials on the erroneous conclusion
that KRS 311.377(2) did not apply to it; thus, the Materials were not privileged.
The Court of Appeals affirmed that understanding of the statute. Because KRS
311.377(2) does apply, the Completed Application Materials are generally
privileged, and disclosure can only be allowed under the specific circumstances
contained in the exception to the privilege found in KRS 311.377(3). Given the
record before us, we cannot say that any portion of the Completed Application
Materials is not subject to discovery under the proper statutory test. In
10
accordance with the law, the proper remedy is to issue the writ, clear the slate,
and allow the trial court to re-evaluate the issue under the proper statutory
framework set out above.
We also remind the Appellants on remand that “[i]t is the burden of the
party asserting a privilege to prove its existence.” Collins, 384 S.W.3d at 163.
“The party claiming the privilege must do more than merely assert the privilege.
It must provide the court with sufficient information to show the existence of
the elements of the privilege and to allow review of that decision by higher
courts.” Id. at 164-65. Moreover,
[t]he in camera review method should not be utilized as a way to
thrust the burden of determining privilege onto the trial court.
Litigants should attempt in good faith to separate out materials
that are not privileged and only ask the trial court to review those
materials that it truly believes are protected by a privilege.
State Farm Mut. Auto. Ins. Co. v. Edwards, 670 S.W.3d 873, 884 (Ky. 2023). In
the context of this case, having now determined the proper statutory test, upon
remand the Appellants should attempt in good faith to determine which
information in the Completed Application Materials is subject to the exception
contained in KRS 311.377(3), and only ask the trial court to review those
portions of the Completed Application Materials in which the exception’s
applicability is a matter of good faith dispute.
III. Conclusion
The Court of Appeals is reversed, and the writ of prohibition does lie. We
vacate the trial court’s order and remand to Kenton Circuit Court to conduct
the proper statutory analysis, namely, to determine if the information in the
11
Completed Application Materials, that is generally privileged under KRS
311.377(2), meets the exception to that privilege contained in KRS 311.377(3)
and include its specific findings from that analysis in a written order.
All sitting. Lambert, C.J.; Bisig, Goodwine, Keller, and Thompson, JJ.,
concur. Nickell, J., dissents by separate opinion.
NICKELL, J., DISSENTING: Respectfully, I dissent. Because the
stringent standards for extraordinary relief were not satisfied in the present
matter, I would affirm the Court of Appeals’ denial of the requested writ.
It is a universal principle of evidence law “that privileges should be
strictly construed, because they contravene the fundamental principle that ‘the
public . . . has a right to every man’s evidence.’” Sisters of Charity Health Sys.,
Inc. v. Raikes, 984 S.W.2d 464, 468 (Ky. 1998) (quoting Trammel v. United
States, 445 U.S. 40, 45 (1980)). “Moreover, the burden of proving that a
privilege applies rests on the party claiming its benefit.” Id. (citing Robert G.
Lawson, The Kentucky Evidence Law Handbook § 505, at 229 (3d ed. Michie
1993)). In Collins v. Braden, 384 S.W.3d 154, 164-65 (Ky. 2012), we further
specified
that when challenged, the party claiming the privilege must do
more than merely assert the privilege. It must provide the court
with sufficient information to show the existence of the elements of
the privilege and to allow review of that decision by higher courts.
Here, the documents considered by the trial court were not included in
the present record, and Saint Elizabeth has failed to provide a sufficient
description of their contents in its privilege log. Such general and conclusory
12
assertions are insufficient to establish the existence of a privilege. Id. In the
absence of adequate documentation, a reviewing court cannot “properly
evaluate whether [the trial court’s] determination that [the materials] were not
privileged was an abuse of discretion.” Lexington Pub. Libr. v. Clark, 90 S.W.3d
53, 63 (Ky. 2002). Thus, I would affirm the decisions of both lower courts in
their entirety on this basis. Id.
I appreciate the majority’s disagreement with the lower courts’
interpretation of KRS 311.377(2). However, “[i]t is an elementary rule of
appellate practice that a judgment will be affirmed if the result is right even
though the reason stated by the trial court for the judgment is wrong or
doubtful.” Entwistle v. Carrier Conv. Corp., 284 S.W.2d 820, 822-23 (Ky. 1955).
In my estimation, the failure of Saint Elizabeth to adequately support its
petition for writ of prohibition amply justifies the denial of the requested writ.
Therefore, I respectfully dissent.
13
COUNSEL FOR APPELLANT:
Ryan M. McLane
Emma R. Gripshover
Dressman Benzinger LaVelle PSC
COUNSEL FOR APPELLEE:
Hon. Patricia Summe
COUNSEL FOR REAL PARTIES IN INTEREST/
APPELLEES, RICKY AND KAREN GRIMES:
Kendra E. Samson
Barton LLP
Philip N. Elbert
Womble Bond Dickinson (US) LP
COUNSEL FOR REAL PARTY IN INTEREST/
APPELLEE, ANTHEM HEALTH PLANS OF KENTUCKY:
Zachary Holt
Kolb Clare & Arnold PSC
COUNSEL FOR REAL PARTIES IN INTEREST/
APPELLEES, DR. MICHAEL K. DAVENPORT, M.D.,
AND SUMMIT MEDICAL GROUP:
Michael J. Enzweiler
Ellen M. Houston
Dressman Benzinger LaVelle PSC
COUNSEL FOR AMICUS CURIAE,
KENTUCKY DEFENSE COUNSEL
Alexander B. Clay
Joseph A. Wright
Thompson Miller & Simpson PLC
14