Kentucky Supreme Court Clarifies Privilege For Hospital Incident Reports And Root Cause Analyses

On December 18, 2025, the Supreme Court of Kentucky clarified when internal hospital investigations and reports are protected from discovery under the federal Patient Safety and Quality Improvement Act ("PSQIA") and Kentucky's peer review privilege statute.

In Baptist Healthcare System, Inc. v. Kitchen, a medical negligence action arising out of the plaintiff's fall during her hospital stay, the Court addressed competing arguments about whether an incident report and a root cause analysis must be produced in litigation, ultimately drawing a distinct line between routine regulatory reporting and privileged safety work product.

In general, the PSQIA protects patient safety work product prepared by medical providers for the purpose of reporting medical errors to patient safety organizations. However, the PSQIA limits the definition of "patient safety work product" to specific information and imposes certain reporting requirements for the privilege to apply.

In Kitchen, the Court unanimously held that a hospital's root cause analysis is fully protected as patient safety work product under the PSQIA. Importantly, the Court rejected arguments that the privilege should be pierced merely because the analysis contains factual information, as the privilege covers the document in its entirety without a "factual portion" exception. Thus, even where a plaintiff cannot otherwise obtain those facts through the medical record, a root cause analysis remains privileged and shielded from discovery.

By contrast, the Court concluded that the hospital's incident report that was prepared contemporaneously, and required under state regulatory reporting obligations, was not privileged under either the PSQIA or Kentucky's peer review statute. Because the incident report was generated as part of mandatory compliance with state reporting rules rather than for the retrospective peer review process itself, it falls outside the scope of both the federal patient safety work product privilege and state peer review protections and is discoverable in litigation.

This ruling underscores the importance of distinguishing between documents created for internal safety evaluation and those required by statute or regulation. Healthcare providers should be aware that, while root cause analyses prepared for patient safety organizations may be privileged if they meet the requirements of the PSQIA, routine incident reports generated to comply with external obligations are still subject to disclosure, even if otherwise submitted into a patient safety evaluation system.

Read the full opinion here.