Legal Update: Impact of Recent Cases on Patient Safety Work Product

There have been two recent decisions, one from the Kentucky Court of Appeals in University of Kentucky v. Bunnell and another from the Florida Supreme Court in Edwards v. Thomas which should be of great interest to PSOs and their member providers.

The primary purpose of this presentation is to unpack the Bunnell decision and to identify the arguments and step-by-step analyses which should… More prove helpful to PSOs and participating providers in all jurisdictions when defending against subpoenas and other requests for PSWP. In addition, the Court further analyzed and concluded that there are no external obligations under the Medicare CoPs and QAPI or under The Joint Commission accreditation standards and therefore reports and analyses collected in a provider’s PSES for reporting to a PSO are PSWP and therefore need not and cannot be disclosed unless there is an available disclosure exception.

In Bunnell, the Court again addressed a hospital’s position that an adverse event report it prepared subsequent to a patient’s death was PSWP and therefore not discoverable. In a very detailed opinion, the Court thoroughly reviewed the relevant Kentucky statutes and determined that, contrary to the plurality decision in Tibbs, the report was not made to meet an “external obligation” and therefore qualified as PSWP.

Finally, the presentation will cover the Florida Supreme Court’s decision in Edwards. While not a Patient Safety Act decision, the Court’s extremely broad interpretation of a patient’s ability to access information relating to any and all adverse events under Amendment 7 calls into question whether the Court believes that any information can be protected. A review of the decision and some options and arguments to consider will be discussed.


Michael Callahan, Partner with Katten Muchin Rosenman LLP


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