Health Law Monitor
Kentucky Supreme Court Peer Review Privilege Decision re Hospital Root Cause Analysis and Incident Reports
January 26, 2026
On December 18, 2025, the Kentucky Supreme Court analyzed the scope of the federal Patient Safety & Quality Improvement Act (“PSQIA”), 42 USCS § 299b-21, and Kentucky state peer review privilege, KRS § 311.377, as it applies to root cause analyses and incident reports.
In Baptist Healthcare Systems v. Kitchen, the plaintiff brought suit regarding a hospital fall. Any and all incident reports were requested during discovery, and the hospital identified an Incident Report and Root Cause Analysis, but declined to produce them based on federal and state peer review privilege grounds. The Supreme Court granted a writ.
The Court held the Root Cause Analysis was protected patient safety work product because it (1) was an analysis; (2) prepared for the purpose of reporting to a patient safety organization; (3) was in fact report to such organization; and (4) contained a “detailed analysis of care processes, operational suggestions for process improvements, [and] key takeaways,” meaning it could result in improved patient safety, healthcare quality, or healthcare outcomes. 42 U.S.C. § 299b-21(7)(A).
Importantly, the Court rejected the plaintiff’s argument that factual information contained in the Root Cause Analysis was an exception. Rather, the Court held the hospital’s Root Cause Analysis was fully protected as patient safety work product, including the underlying factual information. Therefore, a plaintiff cannot circumvent PSQIA protection to discover factual information, even if they cannot obtain these facts through non-privileged means.
As to the Incident Report, the Court held it was not privileged under PSQIA because it was prepared contemporaneously and in accordance with hospital policies to comply with state regulatory reporting obligations. The Court also held it was not protected by Kentucky’s peer review privilege because it was prepared immediately post-incident, rather than a substantive retrospective review and evaluation of the event. Thus, the hospital was required to produce the Incident Report.
Kentucky healthcare providers should be aware of the effects of this decision. The Kitchen decision underscores the importance and distinction between different healthcare patient safety work product documents. While root cause analyses are fully protected under PSQIA, contemporaneous incident reports are discoverable even in the patient safety organization setting.