UNIVERSITY OF KENTUCKY MEDICAL CENTER (A/K/A UKMC) V. HONORABLE SHEILA R. ISAAC, (JUDGE, FAYETTE CIRCUIT COURT); KAREN PAULY (-EXECUTRIX OF THE ESTATE OF DARYL PAULY); (- INDIVIDUALLY) AND JEAN KATHERINE PAULY ()
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IMPORTANT NOTICE
NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED ."
PURSUANT TO THE RULES OF CIVIL PROCEDURE
PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C),
THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE
CITED OR USED AS BINDING PRECEDENT IN ANY OTHER
CASE IN ANY COURT OF THIS STATE ; HOWEVER,
UNPUBLISHED KENTUCKY APPELLATE DECISIONS,
RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR
CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED
OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE
BEFORE THE COURT. OPINIONS CITED FOR CONSIDERATION
BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED
DECISION IN THE FILED DOCUMENT AND A COPY OF THE
ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE
DOCUMENT TO THE COURT AND ALL PARTIES TO THE
ACTION.
RENDERED : OCTOBER 23, 2008
NOT TO BE PUBLISHED
,Vixyrrme C~Vurf of
2008-SC-000181-MR
UNIVERSITY OF KENTUCKY MEDICAL CENTER
(A/K/A UKMC)
V
APPELLANT
ON REVIEW FROM COURT OF APPEALS
CASE NUMBER 2007-CA-002139
FAYETTE CIRCUIT COURT NOS. 06-CI-05390 AND 07-CI-02069
HONORABLE SHEILA R. ISAAC
(JUDGE, FAYETTE CIRCUIT COURT) ;
KAREN PAULY
(REAL PARTY IN INTEREST-EXECUTRIX
OF THE ESTATE OF DARYL PAULY);
KAREN Y. PAULY
(REAL PARTY IN INTEREST - INDIVIDUALLY) ;
AND JEAN KATHERINE PAULY
(REAL PARTY IN INTEREST)
APPELLEES
MEMORANDUM OPINION OF THE COURT
AFFIRMING
The University of Kentucky Medical Center (UKMC) appeals from an order of the
Court of Appeals denying UKMC's petition for a writ to prohibit the trial court from
enforcing its order compelling UKMC to disclose trauma conference minutes in an
underlying medical malpractice action. UKMC argues that these peer review materials
are protected from discovery under KRS 311 .377(2) .' The lower courts disagreed, with
KRS 311 .377(2) provides that:
"At all times in performing a designated professional review function, the proceedings,
records, opinions, conclusions, and recommendations of any committee, board,
the Court of Appeals specifically relying on our decision in Sisters of Charity Health
Systems, Inc . v. Raikes, which held that the peer review privilege provided in
KRS 311 .377(2) did not apply to medical malpractice actions.3
Because the lower courts properly followed binding precedent and as we agree
with the Court of Appeals that the standard for granting a writ of prohibition has not
been met in this case, we affirm the Court of Appeals' denial of the writ.
All sitting . All concur.
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 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 ."
984 S.W.2d 464 (Ky. 1998).
/d. at 470.
See Hoskins v. Maricle , 150 S.W.3d 1, 10 (Ky. 2004) (stating that a writ of prohibition may
be granted only "upon a showing that (1) the lower court is proceeding or is about to
proceed outside its jurisdiction and there is no remedy through an application to an
intermediate court; or (2) 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
and great injustice and irreparable injury will result if the petition is not granted") .
COUNSEL FOR APPELLANT :
Frank P. Doheny, Jr.
Bradley A. Case
Michael C . Merrick
Dinsmore & Shohl, LLP
1400 PNC Plaza
500 West Jefferson Street
Louisville, Kentucky 40202
COUNSEL FOR APPELLEE
HONORABLE SHEILA R. ISAAC
(JUDGE, FAYETTE CIRCUIT COURT) :
Judge Sheila R. Isaac
Fayette Circuit Court
551 Robert F . Stephens Courthouse
120 N. Limestone Street
Lexington, Kentucky 40507
COUNSEL FOR APPELLEES
KAREN PAULY (REAL PARTY IN
INTEREST-EXECUTRIX OF THE
ESTATE OF DARYL PAULY) ;
KAREN Y. PAULY (REAL PARTY
IN INTEREST-INDIVIDUALLY} ;
AND JEANE KATHERINE PAULY
(REAL PARTY IN INTEREST) :
William R. Garmer
Jerome Park Prather
Garmer & O'Brien, LLP
141 North Broadway
Lexington, Kentucky 40507
COUNSEL FOR AMICUS CURIAE
AMERICAN COLLEGE OF SURGEONS :
Alan Bruce Feldbaum
Barnes & Thornburg, LLP
600 1 st Source Bank Center
100 North Michigan
South Bend, Indiana 46601
COUNSEL FOR AMICUS CURIAE
UNIVERSITY MEDICAL CENTER, INC.
(D/B/A UNIVERSITY OF LOUISVILLE
HOSPITAL) :
Ashley Butler
Beth Hendrickson McMasters
Bradley R. Hume
Thompson, Miller & Simpson, PLC
600 West Main Street - Suite 500
Louisville, Kentucky 40202
COUNSEL FOR AMICUS CURIAE
AMERICAN COLLEGE OF SURGEONS,
KENTUCKY CHAPTER:
Christopher P. O'Bryan
Katherine K. Vesely
O'Bryan, Brown & Toner
1500 Starks Building
455 South Fourth Street
Louisville, Kentucky 40202
COUNSEL FOR AMICUS CURIAE
JOINT COMMISSION:
Jason B . Bell
Kerrick, Stivers, Coyle & VanZant, P.L.C.
2819 Ring Road, Suite 200
P. 0. Box 844
Elizabethtown, Kentucky 42702-0844
COUNSEL FOR AMICUS CURIAE
KENTUCKY HOSPITAL ASSOCIATION :
Robert James Benvenuti, III
Wesley Reed Butler
Barnett, Benvenuti & Butler, PLLC
489 East Main Street, Suite 300
Lexington, Kentucky 40507-1541
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