RENDERED: DECEMBER 17, 2020
TO BE PUBLISHED
Supreme Court of Kentucky
2019-SC-0726-MR
SANDRA JONES BECK, M.D.; JUSTIN APPELLANTS
PETERSON, M.D.; AND JENNIFER
TAVITIAN, R.N.
ON APPEAL FROM COURT OF APPEALS
V. NO. 2019-CA-1313
FAYETTE CIRCUIT COURT NO. 18-CI-03413
HONORABLE ERNESTO SCORSONE, APPELLEE
JUDGE FAYETTE CIRCUIT COURT,
DIVISION SEVEN
AND
ANDREA BRANDENBURG REAL PARTY IN INTEREST
OPINION OF THE COURT BY CHIEF JUSTICE MINTON
REVERSING AND REMANDING
Pending in the circuit court is a medical-negligence suit filed by Andrea
Brandenburg against the Medical Center; 1 the three named Appellants, Sandra
Jones Beck, Justin Peterson, and Jennifer Tavitian, healthcare professionals
employed by the Medical Center; and ten other healthcare professionals
1The University of Kentucky Medical Center, d/b/a UK Healthcare, d/b/a
University of Kentucky A. B. Chandler Medical Center, d/b/a UK Medical Center, the
University of Kentucky, all collectively referred to in this opinion at the Medical Center,
were dismissed with prejudice by the trial court based on sovereign immunity.
identified as unknown defendants, all of whom are also allegedly employed by
Medical Center. 2
Appellants appeal to this Court from the Court of Appeals’ denial of their
application for a writ of prohibition, seeking to prevent the trial court from
enforcing a protective order that forbids them from all ex parte communication
with Brandenburg’s unnamed treating physicians or other healthcare providers
employed by the Medical Center. They assert that the trial court’s order
erroneously denies them the right to confer informally with coworkers inside
their own practice group and effectively blocks their ability to engage the same
attorneys for a potential common defense of all claims. The Appellants argue
the trial court’s erroneous order results in an irreparable injury incapable of
remedy by appeal or otherwise.
Because we conclude that the orderly administration of justice requires
us to address an issue that we perceive as having statewide application, we
proceed directly to examine the merits of the underlying order, holding that the
trial court abused its discretion because the basis of the order is ostensibly the
personal conviction of the trial court that departs from precedent without
providing appropriate justification at variance with precedent of the
Commonwealth. Accordingly, we reverse the decision of the Court of Appeals
and remand this case to the Court of Appeals with direction to issue a writ
consistent with this decision.
2 Luis Acosta Briceno, MD, was voluntarily dismissed by agreed order.
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I. FACTUAL AND PROCEDURAL BACKGROUND
Appellants are two doctors and a registered nurse, all employed by the
Medical Center. The unnamed defendants are also alleged to be healthcare
professionals who are employees of the Medical Center. During pretrial
discovery, Appellants moved for a Qualified Protective Order (QPO) that, if
granted, would authorize their counsel to request voluntary ex parte interviews
of Brandenburg’s non-party treating healthcare providers in compliance with
state law and HIPAA regulations.
Brandenburg opposed the QPO motion with three points. First, she
argued that Caldwell v. Chauvin 3 merely provided a procedure for HIPAA-
compliant QPOs but did not establish a right for medical-malpractice
defendants to ex parte communications with a plaintiff’s treating healthcare
professionals. Second, she argued that she had an ongoing physician-patient
relationship with certain treating physicians at the Medical Center that may be
jeopardized if ex parte interviews with them were authorized and conducted.
Lastly, while acknowledging there is no physician-patient privilege recognized
in Kentucky, she posited that confidentiality obligations are imposed on
physicians by statutes and codes of medical ethics in other jurisdictions,
though without the force of law in Kentucky, the violation of which could
expose the medical professional to discipline or liability. Appellants’ counsel
responded that these interviews are voluntary, that she was not aware of any
instance of a Kentucky physician subjected to professional discipline for
3 464 S.W.3d 139 (Ky. 2015).
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consenting to ex parte interviews, and that ex parte interviews simply “levels
the playing field” in terms of case investigation and the expense of discovery.
To Appellants’ “level playing field” argument at the hearing on the QPO
motion, the trial court replied, “Well, yeah, but it’s [Brandenburg’s] doctor.”
Acknowledging the physician’s right to refuse an ex parte interview, the trial
court continued,
“[F]or me to stamp approval on something like this–these ex parte
communications–I really have a hard time doing that unless there’s
some unique fact situation, whether it’s the behavior of the
healthcare provider or the patient…. But absent something
unique. . . . I think it’s not good policy to allow ex parte
communications. So, I appreciate the opportunity to do this, I’ve
had this opportunity a number of times and I’ve declined every
time because I didn’t think there was a unique fact situation that
called for it. So, I appreciate your advocacy, but I’m going to deny
the request.”
When Appellant asked what “unique fact situation” might persuade the trial
court to authorize a similar request, the trial court responded: “I haven’t
granted [these motions] yet because I haven’t seen any unique fact situations.
I’m open to it, I don’t know, but it’s got to be something unique, you know, that
would really convince me that ex parte is appropriate.”
The trial court denied the QPO and inserted into its order— apparently
on the trial court’s own motion—the following additional prohibition:
Other than the Defendants whom Defense Counsel represents
herein, no ex parte communications by the Defendants or their
counsel shall take place with Plaintiff’s treating physicians and
healthcare provider regarding the facts and issues in this case.
At a later hearing prompted by Appellants’ motion to clarify the meaning of the
trial court’s language imposing this discovery prohibition, the trial court
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confirmed the language in the order, stating that the language prohibits any ex
parte communication about the facts and issues in the case unless counsel is
personally representing the treating physician or healthcare provider as a
client.
The Appellants then brought an original action in the Court of Appeals
for a writ to prohibit the trial court from enforcing this order to the extent it
precludes them from conducting ex parte interviews of Brandenburg’s treating
physicians and healthcare workers employed by the Medical Center. The Court
of Appeals declined to issue the writ, holding the Appellants had an adequate
remedy by appeal regardless of whether the trial court acted erroneously by
issuing the discovery prohibition. This appeal followed as a matter of right. 4
II. STANDARD OF REVIEW
A writ is an extraordinary remedy generally disfavored in Kentucky law. 5
“[T]he issuance of a writ is inherently discretionary. Even if the requirements
are met and error found, the grant of a writ remains within the sole discretion
of the Court.” 6 Our reluctance to entertain writ petitions, much less grant
them, is clear from our precedent. 7 Here, the trial court’s jurisdiction is
Kentucky Rule of Civil Procedure (CR) 76.36(7)(a) (“An appeal may be taken to
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the Supreme Court as a matter of right from a judgment or final order in any
proceeding originating in the Court of Appeals.”); 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. . . .”).
5 Caldwell at 144 (citing Ridgeway Nursing & Rehab. Facility, LLC v. Lane, 415
S.W.3d 635, 639 (Ky. 2013)).
6 Commonwealth v. Shaw, 600 S.W.3d 233, 237 (Ky. 2020) (citing Caldwell, at
145–46) (internal quotations omitted). See also Graham v. Mills, 694 S.W.2d 698, 699–
700 (Ky. 1985).
7 Caldwell at 144–45 (citing Bender v. Eaton, 343 S.W.2d 799, 800 (Ky.1961)).
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undisputed, which made the proceedings before the Court of Appeals an
application for a writ of the second class, as the Court of Appeals correctly
found. And since the trial court’s order was itself an order governing pretrial
discovery with no disputed factual determinations, we will reverse the Court of
Appeals’ denial of the writ only by finding it abused its discretion. 8
III. ANALYSIS
For a writ of the second class, the applicant must show error by the
court below that will result in great harm or irreparable injury that cannot be
adequately rectified by appeal or otherwise. 9 And even if an appeal is shown to
be inadequate or unavailable, the applicants must still show that they will
suffer a “great injustice or irreparable harm” if a writ is not issued. 10 The harm
alleged should be a “harm of a ruinous nature,” 11 not mere expense,
inconvenience, or loss of strategic advantage. 12
This rule is not absolute. Our law recognizes a so-called “special-cases
exception” to the great-and-irreparable-harm element that allows the issuance
of a writ in the interest of “orderly judicial administration” if, upon review of the
merits underlying the writ petition, the reviewing court is satisfied that the
lower court is proceeding erroneously and “a substantial miscarriage of justice
8 Caldwell at 146. See, e.g., St. Luke Hosps., Inc. v. Kopowski, 160 S.W.3d 771,
777 (Ky. 2005).
9 Id. at 145 (citing Hoskins v. Maricle, 150 S.W.3d 1, 10 (Ky. 2004)).
10 Hoskins at 6.
11 Bender at 801.
12 See Robertson v. Burdette, 397 S.W.3d 886, 891 (Ky. 2013) (citing Fritsch v.
Caudill, 146 S.W.3d 926, 930 (Ky. 2004)).
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will result” if the lower court’s error stands uncorrected. 13 As we summarized
the law in Caldwell, in cases seeking a second-class writ, we typically approach
first the elements of the great injustice and irreparable harm as prerequisite to
consideration of the merits. But our precedent also authorizes us to proceed
directly to the merits of the dispute when they are uncomplicated and doing so
would promote the end of “judicial economy in limiting the breadth of analysis
appellate courts undertake when considering writs.” 14
We proceed directly to the merits of the present discovery dispute
because we conclude error lies in the trial court’s arbitrary discovery
prohibition that misapplies existing precedent. And as we acknowledged in
Caldwell, discovery disputes, as a general matter, come to us nearly always via
writ petitions, so considering the merits of such petitions affords us the
opportunity to ensure that the law is uniformly applied in the trial courts
across the Commonwealth. 15 Failure to correct the instant erroneous order is
to undermine the assurance to parties and their counsel the uniform
application of law among the trial courts of this state. We determined quite
clearly in Caldwell that while no absolute right exists to conduct ex parte
communications with nonexpert treating healthcare professionals, no default
restrictions, as a matter of Kentucky law and policy, limit them. 16 Contrary to
this precedent, the trial court here issued an order prohibiting all ex parte
13 Caldwell at 145 (citing Bender, at 801).
14 Id. at 146 n.16 (quoting So. Fin. Life Ins. Co. v. Combs, 413 S.W.3d 921, 927
n.20 (Ky. 2013).
15 Id. at 148.
16 Caldwell at 154–55.
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contacts with healthcare witnesses seemingly because, using the trial court’s
own words, “it’s not good policy to allow ex parte communications.”
Importantly, the trial court identified no other reason grounded in the facts of
the case before it to prohibit all ex parte interviews with potential witnesses
who are physicians or healthcare workers. The only basis for this order, as
articulated by the trial court at the hearing, was the trial court’s own personal
policy predilection rather than the application of law to facts. This order
appears arbitrary.
The orderly administration of justice depends on consistent and non-
arbitrary decision-making by the trial court acting as gatekeeper in the
discovery process. There is a special risk that cases like this, where a trial
court asserts a personal policy predisposition over the precedent set by this
Court, absent some other justification, will result in disparate outcomes for
litigants depending on the judge presiding over their case. 17 Parties litigating
before our courts deserve confidence that the issues they present to a court will
be determined under controlling precedent applied under reasoned, accepted
principles of law and procedure. 18 Where the resolution of issues and disputes
17 See Jenkins v. Commonwealth, 496 S.W.3d 435, 451 (Ky. 2016) (“[P]recedent
is presumptively binding. In other words, courts cannot depart from previous decisions
simply because they disagree with them. . . . However, judges may disregard precedent
if they offer some special justification for doing so.”) (emphasis in original) (internal
quotations and citations omitted).
18 Matheney v. Commonwealth, 191 S.W.3d 599, 608 (Ky. 2006)(Graves, J.,
concurring) (citing Payne v. Tennessee, 501 U.S. 808, 827–30 (1991) (“Stare decisis is
the preferred course because it promotes the evenhanded, predictable, and consistent
development of legal principles, fosters reliance on judicial decisions, and contributes
to the actual and perceived integrity of the judicial process. Adhering to precedent ‘is
usually the wise policy, because in most matters it is more important that the
applicable rule of law be settled than it be settled right.’”) (citations omitted)).
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depends instead on which judge happens to preside, the resolution is rendered
arbitrary, unfair, and therefore disorderly.
This writ should issue without prejudice to either party to address this
discovery matter again before the trial court. Upon the Court of Appeals’
issuance of the writ as directed herein, the trial court may, upon appropriate
motion, revisit the issue of the Appellants’ ex parte contacts with
Brandenburg’s unnamed treating physicians and other healthcare providers
and, in the exercise its discretion, issue further orders as may be legally
justified by the facts of the present case.
IV. CONCLUSION
Concluding that the Court of Appeals abused its discretion in denying
the writ, we reverse its decision and remand the case to that court with
directions to issue the writ.
All sitting. All concur.
COUNSEL FOR APPELLANTS:
Wesley Reed Butler
Holly Renee Iaccarino
Barnett Benvenuti & Butler PLLC
Sara Clark Davis
Karen Lee Keith
McMasters Keith Butler, Inc.
William Eugene Thro
University of Kentucky, Office of Legal Counsel
Margaret Mary Pisacano
University of Kentucky Medical Center Department of Risk Management
Honorable Ernesto Scorsone, Judge
Fayette Circuity Court, Division Seven
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COUNSEL FOR REAL PARTY IN INTEREST, Andrea Brandenburg:
Richard Alan Getty
Danielle Harlan
Gregory Kerr Jenkins
Marcel Elaine Radomile
The Getty Law Group PLLC
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