Supreme Court of the United States
Tibbs v Bunnell

The Supreme Court of Kentucky, in a split decision with an extensive dissent, found that, since the state of Kentucky required hospitals to collect and use incident reports, incident reports have a “dual use” and thus cannot be Patient Safety Work Product. This opinion contradicts the intent and meaning of the Act.

Yet, while the incident information may be relevant to its endeavors under the Act, it is not, nor can it be, patient safety work product, since its collection, creation, maintenance, and utilization is mandated by the Commonwealth of Kentucky as part of its regulatory oversight of its healthcare facilities. — Supreme Court of Kentucky

The adverse decision of the Supreme Court of Kentucky is currently being appealed to the US Supreme Court. The decision currently applies solely to Kentucky, but other states may be influenced by this incorrect decision. This post will be updated as events occur.

Pending petition

Docket No. Op. Below Argument Opinion Vote Author Term

Issue: Whether state law may nullify the federal “patient safety work product” privilege, or whether, instead, the Kentucky Supreme Court erred by interpreting it not to protect information “normally contained in” documents subject to state reporting or record-keeping requirements.

Date Proceedings and Orders
Mar 18 2015 Petition for a writ of certiorari filed. (Response due April 20, 2015)
Apr 20 2015 Brief amici curiae of University Healthsystem Safety Intelligence PSO, et al. filed.
Apr 20 2015 Motion for leave to file amici brief filed by American Hospital Association, et al.
Apr 20 2015 Motion for leave to file amicus brief filed by The Joint Commission.
Apr 20 2015 Motion for leave to file amicus brief filed by Alliance for Quality Improvement and Patient Safety.
May 5 2015 DISTRIBUTED for Conference of May 21, 2015.
May 13 2015 Response Requested . (Due June 12, 2015)
Jul 7 2015 In light of the letter received from Miller K. Carter, Esq., dated July 7, 2015, the time to file a response to the petition has been extended to and including August 21, 2015.
Aug 21 2015 Brief of respondent Estate of Luvetta Goff in opposition filed.
Sep 8 2015 Reply of petitioners Phillip Tibbs, et al. filed. (Distributed)
Sep 9 2015 DISTRIBUTED for Conference of September 28, 2015.
Oct 5 2015 The Solicitor General is invited to file a brief in this case expressing the views of the United States.