THOMAS A. DONAN, Special Justice.
This is an appeal from a Court of Appeals order entered on January 20, 1993, denying Appellants’ Petition for a Writ of Prohibition and a Writ of Mandamus in an original action filed pursuant to Civil Rule 76.36. Appellants sought writs against William W. Trade, Jr., Special Judge of the Clay Circuit Court, (1) prohibiting enforcement of a discovery order and mandating entry of a protective order concerning physician peer review records; and (2) mandating an order granting them Summary Judgment dismissing the Complaint. An interlocutory order was entered by this Court on February 9, 1993, granting emergency intermediate relief staying so much of the Circuit Court’s Order as permitted discovery relating to peer review.
The trial court’s interlocutory orders arose out of a complaint filed in Clay Circuit Court by the real party in interest, Appellee, Kenneth W. Peasley, M.D., against the Appellants, Adventist Health Systems/Sunbelt Health Care Corporation and Memorial Hospital, Inc., in which he has sought to rescind his resignation and obtain reinstatement to the medical staff of Memorial Hospital and for the recovery of damages for the summary suspension of his medical staff privileges pri- or to his resignation from the medical staff. In his complaint, Dr. Peasley alleged violations of medical staff bylaws of Memorial Hospital, constitutional violations, breach of contract, tortious interference with business opportunity and expectancies, bad faith, wrongful suspension, wrongful discharge, constructive discharge, and the tort of outrage (intentional infliction of emotional distress). The hospitals filed a Motion to Dismiss and a Motion for Summary Judgment in Circuit Court with supporting affidavits which relied in part on claims of qualified immunity from suit under KRS 311.377(1) and the federal Health Care Quality Improvement Act of 1986, 42 U.S.C. § 11101 et seq. which was adopted in KRS 311.377(8).
The second aspect of the instant appeal developed as the result of three discovery [541]*541requests by Dr. Peasley consisting of requests for admissions, requests for production of documents, and interrogatories, along with the scheduling of the deposition of Dr. Lee H. Meadows, Chief of Staff and Chairman of the Medical Executive Committee of Memorial Hospital.
The hospitals filed a motion for a Protective Order with respect to parts of Dr. Peas-ley’s requested discovery concerning peer review records based on confidentiality and privilege citing KRS 311.377(2) which states:
“At all times in performing a designated professional review function, the proceedings, records, opinions, conclusions, and recommendations of any committee, board, commission, medical staff, professional standards review organization, or other entity, as referred to in subsection (1) of this section shall he confidential and privileged and shall not he subject to discovery, subpoena, or introduction into evidence, in any civil action in any court or in any administrative proceeding before any board, body, or committee, whether federal, state, county, or city, except as specifically provided with regard to the board in KRS 311.605(2). This subsection shall not apply to any proceedings or matters governed exclusively by federal law or federal regulation.” (Emphasis supplied.)
When Dr. Peasley later issued a notice to take the deposition of Lee H. Meadows, M.D., the hospitals filed a second Motion for a Protective Order to bar the taking of such deposition, relying on the same grounds. On June 25, 1992, the trial court granted Dr. Peasle/s motion to compel discovery of Lee H. Meadows, M.D.; sealed the record; and provided for sanctions in the event that the Court later ruled that the deposition was not subject to discovery.
On November 5,1992, the trial court overruled the Motion to Dismiss and Motion for Summary Judgment along with the Motions for Protective Orders. The Court also made other appropriate orders to restrict access and use of the information discovered by the Plaintiff. As a basis for the ruling relating to the discovery issue, the trial court found that the privileges provided by KRS 311.377 are strictly limited to claims filed against peer review entities for defamation.
The entry of this Order triggered the filing of the hospital’s original action in the Kentucky Court of Appeals requesting Writs of Prohibition and Mandamus which are now the subject of this appeal.
In Shumaker v. Paxton, Ky., 613 S.W.2d 130 (1981) we stated at p. 131 that:
“The writ of prohibition is an extraordinary remedy and not a substitute for the appellate process. Such writs are generally issued only when lower courts are proceeding or are about to proceed outside their jurisdiction and there is no adequate remedy by appeal, or when they are about to act incorrectly, although within their jurisdiction ‘... and there exists no adequate remedy by appeal or otherwise and great injustice and irreparable injury would result to the applicant if they should do so.’ Evans v. Humphrey, 281 Ky. 254, 258, 135 S.W.2d 915, 917 (1940).”
Favorable resolution of these factors for the Petitioners is necessary before reaching the merits of the claim. Since the trial court was proceeding within its jurisdiction, we will consider the latter class of requirements. The requirement that the petitioner be without an adequate remedy by appeal is absolute. The requirement of “great and irreparable injury” has a degree of flexibility which permits intervention when the administration of justice, as opposed to the petitioners, would suffer great and irreparable injury. National Gypsum v. Corns, Ky., 736 S.W.2d 325, 327 (1987); Bender v. Eaton, Ky., 343 S.W.2d 799 (1961).
I. DISCOVERY OF PEER REVIEW RECORDS
Extraordinary relief is authorized to prevent the disclosure of confidential or privileged information. McMurry v. Eckert, Ky., 833 S.W.2d 828 (1992); Froedge v. Walden, Ky., 624 S.W.2d 833 (1981); Bender v. Eaton, supra.
As stated in the seminal case of Bender v. Eaton, supra, at p. 802:
“Once the information is furnished it cannot be recalled ... The injury suffered by [542]
Free access — add to your briefcase to read the full text and ask questions with AI
THOMAS A. DONAN, Special Justice.
This is an appeal from a Court of Appeals order entered on January 20, 1993, denying Appellants’ Petition for a Writ of Prohibition and a Writ of Mandamus in an original action filed pursuant to Civil Rule 76.36. Appellants sought writs against William W. Trade, Jr., Special Judge of the Clay Circuit Court, (1) prohibiting enforcement of a discovery order and mandating entry of a protective order concerning physician peer review records; and (2) mandating an order granting them Summary Judgment dismissing the Complaint. An interlocutory order was entered by this Court on February 9, 1993, granting emergency intermediate relief staying so much of the Circuit Court’s Order as permitted discovery relating to peer review.
The trial court’s interlocutory orders arose out of a complaint filed in Clay Circuit Court by the real party in interest, Appellee, Kenneth W. Peasley, M.D., against the Appellants, Adventist Health Systems/Sunbelt Health Care Corporation and Memorial Hospital, Inc., in which he has sought to rescind his resignation and obtain reinstatement to the medical staff of Memorial Hospital and for the recovery of damages for the summary suspension of his medical staff privileges pri- or to his resignation from the medical staff. In his complaint, Dr. Peasley alleged violations of medical staff bylaws of Memorial Hospital, constitutional violations, breach of contract, tortious interference with business opportunity and expectancies, bad faith, wrongful suspension, wrongful discharge, constructive discharge, and the tort of outrage (intentional infliction of emotional distress). The hospitals filed a Motion to Dismiss and a Motion for Summary Judgment in Circuit Court with supporting affidavits which relied in part on claims of qualified immunity from suit under KRS 311.377(1) and the federal Health Care Quality Improvement Act of 1986, 42 U.S.C. § 11101 et seq. which was adopted in KRS 311.377(8).
The second aspect of the instant appeal developed as the result of three discovery [541]*541requests by Dr. Peasley consisting of requests for admissions, requests for production of documents, and interrogatories, along with the scheduling of the deposition of Dr. Lee H. Meadows, Chief of Staff and Chairman of the Medical Executive Committee of Memorial Hospital.
The hospitals filed a motion for a Protective Order with respect to parts of Dr. Peas-ley’s requested discovery concerning peer review records based on confidentiality and privilege citing KRS 311.377(2) which states:
“At all times in performing a designated professional review function, the proceedings, records, opinions, conclusions, and recommendations of any committee, board, commission, medical staff, professional standards review organization, or other entity, as referred to in subsection (1) of this section shall he confidential and privileged and shall not he subject to discovery, subpoena, or introduction into evidence, in any civil action in any court or in any administrative proceeding before any board, body, or committee, whether federal, state, county, or city, except as specifically provided with regard to the board in KRS 311.605(2). This subsection shall not apply to any proceedings or matters governed exclusively by federal law or federal regulation.” (Emphasis supplied.)
When Dr. Peasley later issued a notice to take the deposition of Lee H. Meadows, M.D., the hospitals filed a second Motion for a Protective Order to bar the taking of such deposition, relying on the same grounds. On June 25, 1992, the trial court granted Dr. Peasle/s motion to compel discovery of Lee H. Meadows, M.D.; sealed the record; and provided for sanctions in the event that the Court later ruled that the deposition was not subject to discovery.
On November 5,1992, the trial court overruled the Motion to Dismiss and Motion for Summary Judgment along with the Motions for Protective Orders. The Court also made other appropriate orders to restrict access and use of the information discovered by the Plaintiff. As a basis for the ruling relating to the discovery issue, the trial court found that the privileges provided by KRS 311.377 are strictly limited to claims filed against peer review entities for defamation.
The entry of this Order triggered the filing of the hospital’s original action in the Kentucky Court of Appeals requesting Writs of Prohibition and Mandamus which are now the subject of this appeal.
In Shumaker v. Paxton, Ky., 613 S.W.2d 130 (1981) we stated at p. 131 that:
“The writ of prohibition is an extraordinary remedy and not a substitute for the appellate process. Such writs are generally issued only when lower courts are proceeding or are about to proceed outside their jurisdiction and there is no adequate remedy by appeal, or when they are about to act incorrectly, although within their jurisdiction ‘... and there exists no adequate remedy by appeal or otherwise and great injustice and irreparable injury would result to the applicant if they should do so.’ Evans v. Humphrey, 281 Ky. 254, 258, 135 S.W.2d 915, 917 (1940).”
Favorable resolution of these factors for the Petitioners is necessary before reaching the merits of the claim. Since the trial court was proceeding within its jurisdiction, we will consider the latter class of requirements. The requirement that the petitioner be without an adequate remedy by appeal is absolute. The requirement of “great and irreparable injury” has a degree of flexibility which permits intervention when the administration of justice, as opposed to the petitioners, would suffer great and irreparable injury. National Gypsum v. Corns, Ky., 736 S.W.2d 325, 327 (1987); Bender v. Eaton, Ky., 343 S.W.2d 799 (1961).
I. DISCOVERY OF PEER REVIEW RECORDS
Extraordinary relief is authorized to prevent the disclosure of confidential or privileged information. McMurry v. Eckert, Ky., 833 S.W.2d 828 (1992); Froedge v. Walden, Ky., 624 S.W.2d 833 (1981); Bender v. Eaton, supra.
As stated in the seminal case of Bender v. Eaton, supra, at p. 802:
“Once the information is furnished it cannot be recalled ... The injury suffered by [542]*542petitioners, assuming their adversaries have no right to this disclosure under the Civil Rules, will be complete upon compliance with the order and such injury could not thereafter be rectified in subsequent proceedings in the case. Petitioners have no other adequate remedy.”
Dr. Peasley has argued that the provisions of KRS 311.377 violate the Kentucky Constitution. However, Dr. Peasley failed to give notice to the Attorney General of the pendency of his constitutional challenge in violation of KRS 418.075 and Civil Rule 24.03 in either the Court of Appeals or this Court. Since the original action was filed in the Court of Appeals, it is considered the “trial court” for the purpose of applying the procedural mandate of Maney v. Mary Chiles Hosp., Ky., 785 S.W.2d 480 (1990). In Ma-ney, supra, at 482, we held that the requirements of KRS 418.075 are mandatory in order for a court to consider the constitutionality of a statute and that strict enforcement of the statute will eliminate procedural uncertainty. Accordingly, we decline to consider that issue.
The language of KRS 311.377(2) clearly extends privilege and confidentiality of peer review proceedings, records, opinions, conclusions, and recommendations to “... any civil action in any court ...” Therefore we find that the statute applies to any civil action, including the pending case. Smith v. Magruder, Ky.App., 566 S.W.2d 430, 431 (1978); Owensboro Cablevision Inc. v. Libs, Ky.App., 863 S.W.2d 331, 333 (1993).
Accordingly, we reverse a part of the Kentucky Court of Appeals’ decision and grant Appellants’ Motion for a Writ of Prohibition which prohibits the discovery of the proceedings, records, opinions, conclusions, and recommendations of the entities of Memorial Hospital performing a designated professional review function, pertaining to Dr. Peasley or any other physician who was granted or continued to exercise staff privileges after June 17, 1978, by any health services organization. Petitioner’s Motion for Writ of Mandamus is also granted. Accordingly, the trial court is directed to enter a Protective Order consistent with the broad language of the statute and this decision.
II. DISMISSAL OB SUMMARY JUDGMENT BASED ON QUALIFIED IMMUNITY
Although the trial court expressed concern that, without the information from the peer review and executive committee meetings, Dr. Peasley would virtually be unable to support the claims set forth in his complaint, it is noted that KRS 311.377(3) provides that:
“Nothing in subsection (2) of this section shall be construed to restrict or limit the right to discover or use in any civil action or other administrative proceeding any evidence, document, or record which is subject to discovery independently of the proceedings of the entity to which subsection (1) of this section refers.”
Since discovery has not been completed in the trial court and the hospitals have not demonstrated that they will have no adequate remedy on appeal, relief in the form of an extraordinary remedy under CR 76.36 is not appropriate. National Gypsum Co. v. Corns, Ky., 736 S.W.2d 325, 327 (1987). For the foregoing reasons, the remainder of the Court of Appeals order denying the hospital’s remaining Motion for Writs of Prohibition and Mandamus relating to Summary Judgment is affirmed.
STEPHENS, C.J., and SPAIN, REYNOLDS and WINTERSHEIMER, JJ., concur. Special Justice WILLIAM R. WEINBERG concurs in part and dissents in part in a separate opinion in which LEIBSON, J., joins.
LAMBERT and STUMBO, JJ., not sitting.