Norton Hospitals, Inc. D/B/A Norton Hospital v. Hon Barry L. Willett Judge, Jefferson Circuit Court, Division I

CORRECTED: MAY 10, 2016
RENDERED: MARCH 17, 2016
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2015-SC-000606-MR
DATE -VI-142 .1.\%A.C_Aarv+-1)c-,
NORTON HOSPITALS, INC., D/B/A APPELLANT
NORTON HOSPITAL
ON APPEAL FROM COURT OF APPEALS
V. CASE NO. 2015-CA-001324-OA
JEFFERSON CIRCUIT COURT NO. 14-CI-005410
HONORABLE BARRY L. WILLETT, JUDGE, APPELLEE
JEFFERSON CIRCUIT COURT, DIVISION I
AND
THOMAS K. ELLIOTT, AS CONSERVATOR REAL PARTIES IN INTEREST
OF THE ESTATE OF PRATIKSHYA
GURUNG, A MINOR, PARMILA GURUNG,
AND KHADGA GURUNG
OPINION OF THE COURT BY CHIEF JUSTICE MINTON
REVERSING AND REMANDING
Pratikshya Gurung 1 was born with brain damage and quadriplegia,
among other conditions, resulting in the filing in the circuit court of a medical
negligence action against Norton Hospital. This case is before us on appeal
from the Court of Appeals' dismissal as moot of a writ action filed by Norton
1 Because of Gurung's status as a minor, we will refer to Gurung as "the
Estate."
over a discovery dispute with the Estate. We reverse the dismissal and remand
to the Court of Appeals for further review.
During the course of routine discovery, the Estate requested production
from Norton of various hospital documents relating to patient safety—
documents Norton is required by law to create and maintain. These
documents involve the post-occurrence review and peer-review process. Norton
argued the documents were protected under federal law. 2 The Estate sought
and received from the trial court an order compelling Norton to produce the
documents. Consistent with our recent decision in Tibbs v. Bunnell, 3 the trial
court conducted an in-camera review of the documents and determined they
were not privileged.
While the parties were litigating over whether the patient-safety
documents were discoverable, other discovery proceeded. The trial court's
order compelling the production of the disputed documents and denying
Norton's privilege claim was entered August 31, 2015. A nurse who treated
Gurung during her time at Norton was scheduled to be deposed on September
2. On September 1, Norton filed in the Court of Appeals a petition for a writ of
prohibition as well as a request for emergency relief, i.e., an order staying
execution of the trial court's discovery order. Norton notified the Estate and
the trial court of this filing with the Court of Appeals.
In response to Norton's maneuvers, the Estate sought and received an
emergency hearing with the trial court on September 1. The primary—if not
2 See 42 U.S.C. § 299b-22(a).
3 448 S.W.3d 796 (Ky. 2014).
2
sole—purpose of the hearing was to determine if the nurse's deposition
scheduled for the following day could proceed as scheduled. The Estate made
clear that the deposition had been scheduled for months and any further delay
would be lengthy because the nurse was pregnant and nearing her delivery
date. The Estate argued that even though it wanted to use the disputed
documents at the nurse's deposition it mostly wanted the deposition to proceed
with or without the disputed documents.
Norton was unable to get a hearing on its emergency motion in the Court
of Appeals before the Estate's emergency hearing with the trial court. After
hearing arguments, the trial court ruled that the nurse's deposition should
proceed as scheduled and the disputed documents should be provided to the
Estate. The trial court then literally took matters into its own hands and
handed the copies of the disputed documents Norton had submitted for in-
camera review directly to counsel for the Estate, in open court arid on the
record.
The Court of Appeals later dismissed Norton's writ petition as moot
"because the issue Norton raised [was] resolved below, and because [the] Court
[could not] grant meaningful relief to either party." Norton appeals that
decision to this Court as a matter of right. 4
At the outset, we should be clear about the issue Norton now places
before us. Norton, of course, sought a writ in the Court of Appeals. A writ is
4 Kentucky Rules of Civil Procedure (CR) 76.36(7)(a) ("An appeal may be taken
to the Supreme Court as a matter of right from a judgment or final order in any
proceeding originating in the Court of Appeals."); see also Ky. Const. § 115 ("In all
cases, civil and criminal, there shall be allowed as a matter of right at least one appeal
to another court. . . .").
3
an extraordinary use of our discretionary authority—one that we are "cautious
and conservative both in entertaining petitions for and in granting such relief." 5
ObviouslytheCrfApa'dcisonelbthCour,ins
particular case, while a party is appealing from an adverse ruling on its writ
petition, we have a wholly insufficient record to review. And Norton does not
request a writ of prohibition from this Court. So our review of the Court of
Appeals' decision is not through the lens of our writ jurisprudence.
A case becomes moot when a rendered judgment "cannot have any
practical legal effect upon a then existing controversy." 6 And "[t]he general rule
is, and has long been, that where, pending an appeal, an event occurs which
makes a determination of the question unnecessary or which would render the
judgment that might be pronounced ineffectual, the appeal should be
dismissed."7 This is essentially what the Court of Appeals did below. Were we
to rule that the Court of Appeals was erroneous, it is arguable whether or not
we can afford meaningful relief. We have repeatedly recognized that allegedly
privileged information, once disclosed, cannot be rendered undisclosed. On its
face, the trial court's decision to hand-deliver the disputed documents to the
Estate's counsel perhaps did render this action moot.
The problem with this somewhat simplistic view of the instant
circumstances lies with the bedrock principle that a privilege is personal and
5 Bender v. Eaton, 343 S.W.2d 799, 800 (Ky. 1961).
6 Benton v. Clay, 233 S.W. 1041, 1042 (Ky. 1921) (citation and internal
quotation marks omitted).
7 Morgan v. Getter, 441 S.W.3d 94, 99 (Ky. 2014) (quoting Louisville Transit Co.
v. Dep't of Motor Transp., 286 S.W.2d 536, 538 (Ky. 1956)).
4
can only be waived by the party claiming the privilege. To the contrary, the
trial court, in essence, waived Norton's claim of privilege by literally providing
the Estate with the documents claimed to be privileged. 8 The trial court's act
does not resolve any legal issue—in fact, it creates more questions than
answers. A live legal controversy existed when Norton sought relief in the
Court of Appeals. For us to hold otherwise would be to dilute the role of
privilege in the discovery process and wrest control of the privilege from the
party asserting its application.
To our knowledge, we have never dealt with similar conduct by a trial
court. We appreciate the special circumstances confronting the trial court 9
andtherialcourt'saemptoactpromptlyandequitably.Buti smportan
to emphasize that the trial courts are "not in the document delivery business;
instead, they are in the business of ruling on document delivery motions.” 1°
The responsibility to produce documents lies with the parties and the parties
alone. It is problematic for trial courts to surrender control of the documents
in this manner for a couple of reasons.
8 See Commonwealth v. Barroso, 122 S.W.3d 554, 557 (Ky. 2003) ("We conclude
that her compelled testimony did not constitute a voluntary waiver of the privilege.");
see also Kentucky Rules of Evidence (KRE) 509; KRE 510(1) ("A claim of privilege is
not defeated by a disclosure which was compelled erroneously . . .
9 At the time the Estate's emergency motion was heard by the trial court, the
nurse who was to be deposed was 7.5 months pregnant. Her deposition had been
scheduled by the Estate for months, and the Estate was concerned it would be many
more months before the deposition could occur if the trial court did not order it to
proceed. Also during this time, Norton's counsel was focused on her child's serious
illness, the progress of discovery. The case had pended for under a year, but the
nurse's deposition and the documents at issue had been a source of contention among
the parties for some time.
10 In re Grand Jury Subpoeana, 190 F.3d 375, 387 (5th Cir. 1999).
5
First of all, it raises unnecessary questions about the record. By
handing over the documents that were produced for in-camera review, the trial
court created a gap in the record. Here, the trial court recognized this and
asked the Estate's counsel to make copies of the documents and return the
original versions to the trial court. This is simply not good practice—a trial
court should demand that the parties produce documents to one another
because this keeps the record intact while preserving a party's -right to refuse
production or face appropriate consequential sanctions.
Second, and most importantly, the trial court's production of the
documents in conjunction with the Court of Appeals' decision effectively
precludes a party from challenging a trial court's privilege ruling. A trial
court's ruling on an asserted privilege should not be insulated from review. A
question of privilege is of critical importance—so much so that we have
recognized routinely that it is worthy of our writ authority. In fact, privilege
rulings are virtually the only circumstances we have recognized worthy of our
"certain special cases exception" because a "substantial miscarriage of justice
will result if the lower court is proceeding erroneously, and correction of the
error is necessary and appropriate in the interest of orderly judicial
administration."' 1-
The merit, or lack thereof, of Norton's privilege argument is secondary in
the context of the potential damage the lower courts' ruling could work on our
system of justice. Best practice dictates that when a trial court "conducts in-
11 Caldwell v. Chauvin, 464 S.W.3d 139, 145 (Ky. 2015) (quoting Bender, 343
S.W.2d at 801)).
6
camera review of documents, determines that production is appropriate and so
orders, it should, as a matter of course, provide the [party] who submitted the
documents for in-camera review an opportunity to comply with the court's
order or stand in contempt.” 12
Our holding today should not be read to say that a trial court cedes
jurisdiction when a party files a writ petition challenging a privilege ruling—far
from it. A trial court retains jurisdiction over the case and its discovery
methodology despite a pending writ. But a trial court must respect the writ
process and the party's right to proceed in that manner. Discovery in this case
did not have to stop because of Norton's writ petition. In fact, the Estate
requested the trial court compel the nurse's deposition to proceed even without
the challenged documents. This was permissible. The trial court simply
cannot participate itself in discovery and produce documents that a party
alleges are privileged in the face of a writ challenging the trial court's
determination that they are not privileged.
No doubt a live legal controversy has existed throughout the instant
proceedings; yet, this all begs the question: even in the face of a live legal
controversy, what remedy could the Court of Appeals have provided Norton?
Most case law in this area stems from allegedly privileged material seized
unlawfully through, for example, an unconstitutional search. 13 In those
12 In re Grand Jury Subpoena, 190 F.3d at 388. The Fifth Circuit, in In re Grand
Jury Subpoena, noted that "Physically returning the documents to the owner or
custodian is not paramount here. What matters is that the district court allow the
individual some opportunity, on the record, to accept compliance with the court's
order or stand in contempt." Id. at 388 n.14. We agree.
13 Carrier v. Commonwealth, 142 S.W.3d 670, 681 n.28 (Ky. 2004) (Keller, J.,
dissenting).
7
situations, courts have recognized that either returning the challenged
documents or suppressing evidence obtained from those documents, or both, is
appropriate. 14 We acknowledge that the case law does not dovetail precisely
with the instant situation—the differences in criminal and civil proceedings
being what they are—but we see little reason not to recognize these available
options in the rare circumstances presented here. In the end, lo]nce the
information is furnished it cannot be recalled” 15; but, these remedies provide
some measure of recourse where the trial court erroneously waived a party's
privilege by disclosing the documents in issue. This does not alter our case law
holding that a party seeking a writ from an order compelling discovery does not
have an adequate remedy by appeal. That remains true. Our decision today
should be limited to the unique circumstances presented.
The Court of Appeals abused its discretion because its decision was not
based on sound legal principles. 16 Norton's writ action is not moot because
relief can still be afforded. It is true that the documents Norton alleges are
privileged have now been provided to the Estate, but options remain. We
remand the matter to the Court of Appeals for consideration of Norton's
asserted privilege in light of our decision in Tibbs v. Bunnell.
14 See National City Trading Corp. v. United States, 635 F.2d 1020, 1026 (2d.Cir.
1980) ("To the extent that the files obtained here were privileged, the remedy is
suppression and return of the documents in question, not invalidation of the search.")
(citations omitted).
15 Bender, 343 S.W.2d at 802.
16 See Goodyear Tire & Rubber Co. v. Thompson, 11 S.W.3d 575, 581 (Ky. 2000)
("The test for abuse of discretion is whether the trial judge's decision was arbitrary,
unreasonable, unfair, or unsupported by sound legal principles.") (quoting
Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999)).
8
All sitting. All concur.
COUNSEL FOR APPELLANT:
Beth Hendrickson McMasters
Noelle Bryant Haegele
McMasters Keith Butler, Inc.
Wesley Reed Butler
Chelsea Hayes
Benjamin M. Fiechter
Barnett Benvenuti 85 Bulter, PLLC.
Barry Lee Willett, Judge, Jefferson Circuit Court, Division 1
COUNSEL FOR REAL PARTY IN INTEREST, THOMAS K. ELLIOTT, AS
CONSERVATOR OF THE ESTATE OF PRATIKSHYA GURUNG, A MINOR,
PARMILA GURUNG, INDIVIDUALLY, AND KHADGA GURUNG
Larry B. Franklin
Kelly Jo Brownfield
Patrick John Smith
Franklin Law Group
9
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2015-SC-000606-MR
NORTON HOSPITALS, INC., D/B/A NORTON APPELLANT
HOSPITAL
ON APPEAL FROM COURT OF APPEALS
V. CASE NO. 2015-CA-001324-OA
JEFFERSON CIRCUIT COURT NO. 14-CI-005410
HONORABLE BARRY L. WILLETT, JUDGE, APPELLEE
JEFFERSON CIRCUIT COURT, DIVISION I
AND
THOMAS K. ELLIOTT, AS CONSERVATOR OF REAL PARTIES IN INTEREST
THE ESTATE OF PRATIKSHYA GURUNG, A
MINOR, PARMILA GURUNG, AND KHADGA
GURUNG
ORDER
The Opinion of the Court rendered March 17, 2016, is corrected on its face by
substitution of the attached opinion in lieu of the original opinion. Said correction does
not affect the holding of the original Opinion of the Court.
ENTERED: May 10, 2016
F JUSTICE JOHN D. MINTON, R.