Henderson Cnty. Health Care Corp. v. Wilson

612 S.W.3d 811

HENDERSON COUNTY HEALTH CARE CORPORATION d/b/a Redbanks Skilled Nursing Facility; Ken Graves, in His Capacity as Administrator of Redbanks Skilled Nursing Facility; and Wells Health Systems, Inc., Appellants

v. Honorable Karen Lynn WILSON, Judge, Henderson Circuit Court, AppelleeandRoland E. McGuire, as Administrator of the Estate of Jacqueline E. McGuire, Deceased, Real Party in Interest

2020-SC-0001-MR

Supreme Court of Kentucky.

DECEMBER 17, 2020

COUNSEL FOR APPELLANTS: Craig Louis Johnson, James Nelson Martin, Jr., Steptoe & Johnson, PLLC, Louisville.

APPELLEE, JUDGE WILSON : Honorable Karen Lynn Wilson, Henderson, Henderson County.

COUNSEL FOR APPELLEE/REAL PARTY IN INTEREST, ROLAND E. MCGUIRE, AS ADMINISTRATOR OF THE ESTATE OF JACQUELINE E. MCGUIRE, DECEASED: Lisa Erickson Circeo, Hannah Rebecca Jamison, Circeo Fannin, P.S.C.

OPINION OF THE COURT BY JUSTICE KELLER

Henderson County Health Care Corporation d/b/a Redbanks Skilled Nursing Facility (hereinafter "Redbanks") appeals from the Court of Appeals’ denial of its petition for a writ to prohibit the enforcement of an order issued by Judge Karen Wilson of the Henderson Circuit Court compelling Redbanks to produce certain consultant reports to Roland McGuire (hereinafter "McGuire"), the real party in interest. After a thorough review of the facts and the law, we reverse the Court of Appeals.

I. BACKGROUND

Jacqueline E. McGuire (hereinafter "Ms. McGuire") was a resident at Redbanks from 2010 to 2016. According to the complaint filed by McGuire, who is Ms. McGuire's brother, Ms. McGuire suffered multiple injuries while at Redbanks, including serious bedsores. Ms. McGuire eventually died at another facility, and McGuire, as administrator of her estate, filed suit against Redbanks.

During the discovery process, McGuire served Redbanks with requests for production of documents. Included in these requests were the following three requests at issue in this case.

Request for Production No. 41: Please produce all surveys, mock survey visits, documents, reports, and tools, including quarterly site visits and all focused/follow up visits, applicable to the residency of Jacqueline E. McGuire, and six months before, which memorialize Defendants’ evaluation and monitoring of the facility's compliance with mandatory regulations, policies and procedures, and care given to the residents.

Request for Production No. 42: Please produce all documents reflecting and/or reviewing clinical outcomes in the facility during the residency of Jacqueline E. McGuire including Dashboard and Clinical Outcomes reports (COR) and QI/QM Reports and Flags.

Request for Production No. 48: Please produce all documentation and/or reports from any consultant or management personnel hired to evaluate the adequacy of care rendered to residents at the facility anytime during residency.

Redbanks refused to turn over certain documents arguably included within these requests, and McGuire filed a motion to compel. Specifically disputed were nurse consultant reports and whether the Federal Quality Assurance Privilege (FQAP), 42 U.S.C. § 1396r(b)(1)(B) and 42 U.S.C. § 1395i-3(b)(1)(B), protects these reports from disclosure.

In 1987, the United States Congress enacted the Federal Nursing Home Reform Act (FNHRA), of which the FQAP is a subsection. See 42 U.S.C.¹ § 1396r et seq. ; 42 U.S.C. § 1395i–3 et seq. ; 42 C.F.R. 483, et seq. "Broadly, FQAP requires ‘skilled nursing facilit[ies]’ and ‘nursing facilit[ies]’ to establish a quality assessment and assurance committee in an attempt to ensure nursing homes are vigilant about the quality of care their residents are receiving." Richmond Health Facilities-Madison, LP v. Clouse , 473 S.W.3d 79, 84 (Ky. 2015) (footnotes omitted). The FQAP protects from disclosure the records of that committee. It states, "[a] State or the Secretary may not require disclosure of the records of such committee except insofar as such disclosure is related to the compliance of such committee with the requirements of this subparagraph." 42 U.S.C. § 1395i–3(b)(1)(B). At issue in this case is whether the nurse consultant reports are "the records of [the quality assessment and assurance] committee" and therefore privileged.

In compliance with the FNHRA, Redbanks has established a Quality Assurance Performance Improvement (QAPI) committee. Redbanks's QAPI committee contracts with an independent contractor, Wells Health Systems (hereinafter "Wells"), to consult with it and, according to the trial court, "to evaluate the facility's quality of care and provide guidance where care can be improved." Wells employs nurse consultants who perform site visits at Redbanks approximately monthly. These nurse consultants examine residents’ medical charts ("chart audits"), observe Redbanks's staff perform their duties ("compliance rounds"), and review various statistical data. They compile reports that are then provided to the QAPI committee. It is undisputed that the nurse consultants are not employees of Redbanks and are not members of Redbanks's QAPI committee.

The trial court found the nurse consultant reports were not records of the QAPI committee, as they were not created by the committee, and ordered Redbanks to produce them. Redbanks then filed a petition for a writ of prohibition in the Court of Appeals to prevent disclosure of these reports. The Court of Appeals denied the writ petition, holding that the trial court did not err in finding the documents were not protected by the FQAP, as they "were not generated by Redbanks’ quality assurance committee, ‘nor were they minutes, internal papers or conclusions of’ the committee." Redbanks appealed to this Court.

II. ANALYSIS

A. Writ standard

We begin our writ analysis by reiterating that "[t]he issuance of a writ is an extraordinary remedy that is disfavored by our jurisprudence. We are therefore ‘cautious and conservative both in entertaining petitions for and in granting such relief.’ " Caldwell v. Chauvin , 464 S.W.3d 139, 144-45 (Ky. 2015) (citing Ridgeway Nursing & Rehab. Facility, LLC v. Lane , 415 S.W.3d 635, 639 (Ky. 2013) ; Bender v. Eaton , 343 S.W.2d 799, 800 (Ky. 1961) ). Writs "are truly extraordinary in nature and are reserved exclusively for those situations where litigants will be subjected to substantial injustice if they are required to proceed." Indep. Order of Foresters v. Chauvin , 175 S.W.3d 610, 615 (Ky. 2005).

Extraordinary writs may be granted in two classes of cases. The first class requires a showing that "the lower court is proceeding or is about to proceed outside of its jurisdiction and there is no remedy through an application to an intermediate court." Hoskins v. Maricle, 150 S.W.3d 1, 10 (Ky. 2004). The second class requires a showing that "the lower court is acting or is about to act erroneously, although within its jurisdiction, and there exists no adequate remedy by appeal or otherwise." Id. This second class also usually requires a showing that "great injustice and irreparable injury will result if the petition is not granted." Id. There are, however, special cases within the second class of writs that do not require a showing of great injustice and irreparable injury. In those special cases, a writ is appropriate when "a substantial miscarriage of justice" will occur if the lower court proceeds erroneously, and "correction of the error is necessary in the interest of orderly judicial administration." Chauvin , 175 S.W.3d at 616 (quoting Bender , 343 S.W.2d at 801 ). Even in these special cases, the party seeking a writ must show that there is no adequate remedy by appeal. Id. at 617. "No adequate remedy by appeal" means that the party's injury "could not thereafter be rectified in subsequent proceedings in the case." Id. at 615 (quoting Bender , 343 S.W.2d at 802 ). Redbanks seeks this writ of prohibition under the second class of writs.

We summarized the standard for appellate review of a lower court's decision in a writ action in Appalachian Racing, LLC v. Commonwealth :

We employ a three-part analysis in reviewing the appeal of a writ action. We review the Court of Appeals’ factual findings for clear error. Legal conclusions we review under the de novo standard. But ultimately, the decision whether or not to issue a writ of prohibition is a question of judicial discretion. So review of a court's decision to issue a writ is conducted under the abuse-of-discretion standard. That is, we will not reverse the lower court's ruling absent a finding that the determination was "arbitrary, unreasonable, unfair, or unsupported by sound legal principles."

504 S.W.3d 1, 3 (Ky. 2016) (internal citations omitted).

The first requirement for a writ under the second class is that the party requesting the writ have no adequate remedy by appeal. In writ petition cases where discovery is sought, this Court has explained "that there will rarely be an adequate remedy on appeal if the alleged error is an order that allows discovery." Grange Mut. Ins. Co. v. Trude , 151 S.W.3d 803, 810 (Ky. 2004). Furthermore, this Court has explained that "[o]nce ... information is furnished it cannot be recalled.... The injury suffered ... will be complete upon compliance with the order [mandating disclosure of discovery] and such injury could not thereafter be rectified in subsequent proceedings in the case. Petitioners have no other adequate remedy." Id. at 810-11 (quoting Bender , 343 S.W.2d at 802 ).

In this case, McGuire is seeking discovery of nursing consultant reports that Redbanks alleges are privileged. If those reports are disclosed to McGuire, that information "cannot be recalled." Therefore, we hold that Redbanks has no adequate remedy by appeal.

The next requirement of a writ of the second class is that great and irreparable harm will result if the petition is not granted. Kentucky courts have repeatedly defined "great and irreparable harm" as "something of a ruinous nature." Bender , 343 S.W.2d at 801. However, our courts have...