Kentucky Supreme Court Clarifies What Hospital Incident Reports and Root Cause Analyses Are Discoverable in Patient Injury Cases

When a patient is injured in a hospital, some of the most useful evidence about what went wrong is generated by the hospital itself, in the form of internal incident reports and subsequent reviews of the event. Whether an injured patient can actually obtain those documents in litigation, however, depends on a web of overlapping state and federal privileges. In Baptist Healthcare System, Inc. v. Kitchen, decided December 18, 2025, the Supreme Court of Kentucky drew an important line between two such documents, holding that a hospital’s root cause analysis was shielded from discovery in its entirety, while a separate incident report documenting the same event was not.

On May 2, 2022, Marietta Gelanie Jones (“Jones”) was admitted to Baptist Health Paducah (“BHP”) for symptoms associated with liver disease. During her stay, Jones fell while walking to the bathroom, accompanied by a single BHP caregiver. Her medical condition left her in an altered mental state, and she had no recollection of the fall. The following day, caregivers discovered that Jones had suffered a fractured hip, and she underwent surgery on May 4, 2022, before being discharged roughly a week later. Jones sued BHP, alleging negligence in failing to prevent or appropriately respond to her fall.

During discovery, Jones requested “any and all incident reports” relating to her fall. BHP identified two responsive documents, an eight-page incident report (also referred to in the record as a “SAFE Report”) and a forty-page root cause analysis, but declined to produce either. BHP asserted that both documents were protected by the federal patient safety work product privilege found in the Patient Safety and Quality Improvement Act (“PSQIA”), 42 U.S.C. § 299b-22(a), and by Kentucky’s peer review privilege, KRS 311.377(2). Broadly speaking, the federal privilege exempts from discovery materials related to a covered entity’s retrospective review and reporting of medical errors to a patient safety organization, while the state privilege exempts materials related to a covered entity’s retrospective review of the professional conduct of its health care providers.

After conducting an in camera review, the McCracken Circuit Court concluded that BHP was mandated by law to prepare both documents. It ordered production of the entire incident report and ordered production of the root cause analysis with redactions permitted for portions that would not normally appear in state-mandated reports. The trial court reasoned that Jones’s medical records contained no information about where or how she fell, her resulting injuries or surgery, or the treatment she was provided afterward, and that she should be able to access the factual portions of these documents to balance BHP’s privilege interests against her need for the information. BHP petitioned the Court of Appeals for a writ of prohibition. The Court of Appeals held that the incident report was not privileged, but disagreed with the trial court as to the root cause analysis, concluding that the mere absence of fall-related information in Jones’s medical records did not override the federal privilege protecting that document. Both sides sought review in the Supreme Court, with BHP challenging the ordered production of the incident report and Jones challenging the protection afforded the root cause analysis.

Because a discovery order requiring production of assertedly privileged documents presents the kind of “certain special case” in which an appellate remedy is inadequate, the Supreme Court agreed that a writ was an available form of relief, noting that privileged information “cannot be recalled once it has been disclosed.” Turning to the merits, the Court first examined the federal privilege. The PSQIA defines protected “patient safety work product” to include data, reports, records, memoranda, analyses (expressly including “root cause analyses”), or written or oral statements that are assembled or developed by a provider for reporting to a patient safety organization, are in fact reported to such an organization, and could result in improved patient safety, health care quality, or health care outcomes. 42 U.S.C. § 299b-21(7)(A). Relying on the affidavit of BHP’s Director of Patient Safety, the Court found that the root cause analysis satisfied each element: it was an analysis of the type the statute specifically identifies, it was prepared for and reported to a patient safety organization, and it contained detailed analysis of care processes, operational suggestions for process improvements, and key takeaways aimed at improving patient safety.

Critically, the Court held that the federal privilege protects such a document in its entirety, with no exception carved out for factual portions, even upon a showing of need for use in litigation. The statute contemplates that the privilege will attach to whole “reports, records, memoranda, [and] analyses,” and it contains no language allowing a party to extract factual content from an otherwise protected document. The trial court therefore erred in ordering disclosure of the factual portions of the root cause analysis. The Court took care to note, however, that a party is not left without recourse: the underlying facts of an incident remain fully discoverable through other avenues, including requests for production of other documents, interrogatories, and depositions.

The incident report received different treatment. The PSQIA expressly excludes from its protection “information that is collected, maintained, or developed separately, or exists separately, from a patient safety evaluation system.” 42 U.S.C. § 299b-21(7)(B)(ii). Consistent with post-enactment guidance from the Department of Health and Human Services, the Court explained that documents a provider is independently obligated to create to satisfy external regulatory obligations do not become privileged simply because they are also submitted to a patient safety organization. Here, Kentucky regulation 902 KAR 20:016 Section 3(4)(g) requires hospitals to maintain effective procedures for tracking incidents at their facilities, and BHP’s own falls policy required nursing staff to complete a SAFE Report before the end of the shift in which a fall occurred. Because the incident report was generated on the day of Jones’s fall pursuant to this external regulatory obligation, rather than as part of BHP’s patient safety evaluation system, it fell outside the federal privilege. The Court rejected BHP’s argument that a fall is not the kind of “incident” contemplated by the regulation, observing that the regulation’s use of “including” signals a non-exhaustive list.

Finally, the Court held that Kentucky’s peer review privilege under KRS 311.377 did not shield the Incident Report either. That privilege applies to records created by an entity engaged in the retrospective review and evaluation of the competency of health care providers. The record undercut BHP’s characterization of the Incident Report as such a review: BHP’s own privilege log described the document as one that documented “the circumstances of the alleged incident,” it was generated the same day as the fall, and, by BHP’s account, it “triggered” the root cause analysis rather than forming part of it. In other words, the incident report was an immediate, post-event description of the relevant facts, not the substantive retrospective evaluation the privilege is designed to protect. The Supreme Court accordingly affirmed the Court of Appeals, leaving the root cause analysis protected while confirming that the incident report is discoverable.

For patients pursuing hospital negligence claims in Kentucky, Kitchen provides a useful framework for anticipating what internal hospital documentation can and cannot be obtained. A hospital’s root cause analysis, prepared for and reported to a patient safety organization, will generally be off-limits in its entirety under the PSQIA. But contemporaneous incident reports that a hospital is separately required to generate under state regulatory tracking obligations remain fair game, and the facts underlying an injury can always be pursued through depositions, interrogatories, and other discovery tools. The decision is a reminder that the label a hospital places on a document, or the fact that it was routed to a patient safety organization, does not control the privilege analysis; what matters is why the document was created and what obligation prompted it.

You can read the full opinion here.