Request By:
Rola Raymond Thomas
1518 St. John Rd.
Elizabethtown, KY 42701David Gray, Administrator
Hardin Memorial Hospital
913 North Dixie Avenue
Elizabethtown, KY 42701Ken M. Howard
Hardin County Attorney
P.O. Box 884
Elizabethtown, KY 42702-0884
Opinion
Opinion By: Gregory D. Stumbo, Attorney General; Ryan M. Halloran, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether Hardin Memorial Hospital properly relied on KRS 311.377 in denying Rola Raymond Thomas' March 4, 2005, request for "a record 1 of the findings of [the review of the treatment Mr. Thomas received in the Hospital's emergency room on November 17, 2001] including whether the actions by the doctor were competent and thorough, what action was concluded to be necessary as remediation, what was done to implement those necessary corrections, and any other facts that were discovered or elicited during the review." For the reasons that follow, we decide that the Hospital's reliance on KRS 311.377, that makes the deliberations of medical peer review proceedings confidential was correct.
On May 23, 2005, Hardin County Attorney Ken M. Howard denied Mr. Thomas' request on the basis of KRS 311.377. Mr. Howard explained that Mr. Thomas' complaint about the quality of care by the emergency department physician who treated him was formally referred to the peer review process. Continuing, Mr. Howard observed:
This peer review process involves a medical record review and/or interview with the specific emergency department physician concerning [Mr. Thomas'] care by other members of the Hardin Memorial Hospital physician staff. By law (KRS 311.377) this peer review process including the proceedings, records, opinions, conclusions, and recommendations are required to be held confidentially . . . [and] cannot be disclosed . . . .
He explained that the peer review process is aimed at improving health care by means of "self-policing" the medical profession, but that to achieve this goal confidentiality is statutorily extended to the process to ensure physician participation. Two days after Mr. Howard responded on behalf of the Hospital, Mr. Thomas initiated this appeal asserting that the requested records pertain to him, and that they should be available to him.
KRS 311.377, as amended in 1990, provides, in relevant part:
(1) Any person who applies for, or is granted staff privileges after June 17, 1978, by any health services organization subject to licensing under the certificate of need and licensure provisions of KRS chapter 216B, shall be deemed to have waived as a condition of such application or grant, any claim for damages for any good faith action taken by any person who is a member, participant in or employees of or who furnishes information, professional counsel, or services to any committee, board commission, or other entity which is duly constituted by any licensed hospital, licensed hospice, licensed home health agency, health insurer, health maintenance organization, health services corporation, organized medical staff, medical society, or association affiliated with the American Medical Association, American Podiatry Association, American Dental Association, American Osteopathic Association, or the American Hospital Association, or a medical care foundation affiliated with such a medical society or association, or governmental or quasigovernmental agency when such entity is performing the designated function of review of credentials or retrospective review and evaluation of the competency of professional acts or conduct of other health care personnel. This subsection shall have equal application to, and the waiver be effective for, those persons who, subsequent to June 17, 1978, continue to exercise staff privileges previously granted by any such health services organization.
(2) 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 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 question on appeal is whether the statutory mandate that the records be kept confidential may be invoked in response to an open records request for records relating to a patient's complaint of inadequate medical treatment.
Kentucky's courts have not had occasion to address the issue of confidential treatment of peer review proceedings in a situation where a patient requests the records from a public hospital under the open records law. It is clear that medical peer review records are not entitled to the evidentiary privilege granted by KRS 377.377 (2) in malpractice lawsuits against medical providers. Sisters of Charity Health Systems, Inc. v. Raikes, Ky., 984 S.W.2d 464 (1999). In Sisters of Charity the Kentucky Supreme Court examined "the scope of the statute's privilege" id. at 468, and concluded that "the peer review privilege created by KRS 311.377 (2) is limited to suits against peer review entities as referred to and protected against in Subsection 1 of the statute." Id. at 470.
In this appeal there is no lawsuit and the hospital has not relied on an evidentiary privilege, but instead relies on the statutory mandate that the records be kept confidential. Under the open records law public records made confidential by an act of the General Assembly, in this case KRS 377.377 (2), are excluded from disclosure. KRS 61.878 (1) (l). This includes records relating to the person that makes the request. KRS 61.884. The considerations that drove the decision of the court in Sisters of Charity are not present here. The purpose for which these records are sought is not known, and is not required to be disclosed under the open records law. A record is either open to public scrutiny or not. The purpose it is sought does not affect the decision of whether it must be disclosed. Zink v. Commonwealth of Kentucky, Department of Workers' Claims, Ky. App., 902 S.W.2d 825, 828 (1994). In the event the records sought in this appeal were disclosed and the peer review entity was sued, the plaintiff will have obtained a record under the open records law that they would not be entitled to under the holding in Sisters of Charity . For that reason we think the holding in Sisters of Charity is not applicable to the situation in this appeal.
Accordingly, we decide that the medical peer review records sought in this appeal are excluded from disclosure because KRS 377.377 (2) makes them confidential and records made confidential by statute are not subject to disclosure under KRS 61. 878(1)(l).
Additionally, we note that the Hospital's disposition of Mr. Thomas' request was procedurally deficient. KRS 61.880(1) provides, in part:
Each public agency, upon any request for records made under KRS 61.870 to 61.884, shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, after the receipt of any such request whether to comply with the request and shall notify in writing the person making the request, within the three (3) day period, of its decision. An agency response denying, in whole or in part, inspection of any record shall include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld. The response shall be issued by the official custodian or under his authority, and it shall constitute final agency action.
Having apparently received no response to his March 4 request, on May 9, 2005, Mr. Thomas submitted a follow-up letter inquiring into the status of that request. The Hospital's response, which was proposed by County Attorney Howard, was not issued until May 23, in excess of two and one-half months after the initial request. The Hospital offers no explanation for this delay. Accordingly, we find that the Hospital violated KRS 61.880(1) in failing to issue a timely written response to Mr. Thomas' request.
A party aggrieved by this decision may appeal it by initiating action in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882. Pursuant to KRS 61.880(3), the Attorney General should be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceeding.
Footnotes
Footnotes
1 Mr. Thomas advises that he was notified in writing by Patient Advocate Kevin Hilton that in response to Mr. Thomas' "questioning of the propriety and adequacy of the treatment" he received, a review would be conducted.