Baptist Health Medical Group, Inc. v. John Mitchell Farmer, M.D.

• Court: Court of Appeals of Kentucky
• Decided: November 15, 2024
• Docket: 2023-CA-0809
• Status: Published

Opinion

RENDERED: NOVEMBER 15, 2024; 10:00 A.M. TO BE PUBLISHED

Commonwealth of Kentucky Court of Appeals

NO. 2023-CA-0809-MR

BAPTIST HEALTH MEDICAL GROUP, INC.; AND BAPTIST HEALTH MADISONVILLE, INC. APPELLANTS

APPEAL FROM JEFFERSON CIRCUIT COURT v. HONORABLE SUSAN SCHULTZ GIBSON, JUDGE ACTION NO. 20-CI-006143

JOHN MITCHELL FARMER, M.D. APPELLEE

OPINION REVERSING AND REMANDING

** ** ** ** **

BEFORE: ECKERLE, A. JONES, AND TAYLOR, JUDGES.

ECKERLE, JUDGE: Appellants, Baptist Health Medical Group, Inc. and Baptist

Health, Madisonville, Inc. (collectively, “Baptist Health”), seek review of a

judgment of the Jefferson Circuit Court confirming a jury verdict and award of

damages to Appellee, John Mitchell Farmer, M.D. (“Dr. Farmer”), for breach of contract and tortious interference with a business relationship. While we reject

Baptist Health’s argument that it was entirely immune from suit, we hold that

Baptist Health was entitled to a qualified privilege from liability because Dr.

Farmer did not show that Baptist Health acted without “good faith” and with

“actual malice.” Kentucky Revised Statute (“KRS”) 311.6191.

The Trial Court’s definition of these terms unreasonably constrained

the scope of the statutory exemption and resulted in an undue restriction upon

Baptist Health from undertaking discovery and presenting a full picture to the jury.

Consequently, the Trial Court deprived Baptist Health of a fair trial by preventing

it from giving the jury undisputed, factual evidence supporting its defense of acting

in good faith and without actual malice. Conversely, the Trial Court allowed Dr.

Farmer to discover and present the evidence favorable to his side while shielding

evidence unfavorable to him. Given this lopsided presentation, the jury was

allowed to render a large award even though there was no evidence to support a

jury finding that Baptist Health acted with actual malice or in bad faith. The Trial

Court should have granted a directed verdict and not allowed this case to proceed

to verdict. Hence, we reverse the judgment and remand for entry of an order

dismissing Dr. Farmer’s complaint.

-2- I. Factual and Procedural Background

Except where noted, the underlying facts are not in dispute. In 2017,

Baptist Health accepted Dr. Farmer into its medical residency program at its

Madisonville Family Medicine facility. His residency began on June 30, 2019, for

a one-year term, which was supposed to end on June 30, 2020. During the

afternoon of November 4, 2019, the mother of two minor patients complained to

Stephanie Crick, Baptist Health’s facility manager (“Crick”), about Dr. Farmer’s

behavior. The mother said that she believed that Dr. Farmer was acting strangely,

as if he “was on something,” because “he was touching his nose a lot and

constantly moving from side to side.” (Video Record (“VR”) 4/27/23, 10:05:38 –

10:09:38; PX 42.) Crick wrote a complaint about the allegation and sent it to Dr.

Diana Nims (“Dr. Nims”), director of Baptist Health’s residency program.

Upon Crick’s report, Dr. Nims consulted with Lori Oglesby, Baptist

Health’s Executive Director of Human Resources, who explained that as a

physician resident, versus an employee, Dr. Farmer would not be subject to

discipline. Instead, Oglesby informed Dr. Nims that Baptist Health would counsel

Dr. Farmer in an attempt towards recovery and wellness with a view towards

patient safety. Dr. Nims then separately discussed the matter with Dr. Kenneth

Hargrove and Dr. Douglas Hatler, both of whom regularly worked with Dr.

Farmer, including work that same day. Both of the physicians noted Dr. Farmer’s

-3- twitchy, restless, and fidgety behavior. Neither believed that Dr. Farmer was

impaired.

Later that evening, Dr. Nims met with Dr. Wayne Lipson, Baptist

Health’s Chief Medical Officer; Dr. James Armstrong, President of Baptist

Health’s medical staff and chair of its Medical Executive Committee; Rob Ramey,

Baptist’s Health’s President; and Rhonda Florida, a medical staff administrator.

Dr. Nims did not invite Dr. Hargrove or Dr. Hatler to the meeting. In addition to

discussing the complaint at the meeting, the group discussed Dr. Farmer’s prior

guilty plea to the charge of Driving Under the Influence of an Intoxicant (“DUI”),

which he received in 2013 while in medical school. As a result of that conviction,

Dr. Farmer had been referred to the Kentucky Physician’s Health Foundation (“the

Foundation”). At that time, the Foundation referred Dr. Farmer to a non-

mandatory treatment program and evaluation. Dr. Farmer did not comply with

treatment.

Additionally, Dr. Nims told the group about a previous comment that

Dr. Farmer had made about suicide, for which she had recommended mental health

treatment. Dr. Farmer had stated that his comment was intended as a joke and no

treatment was required.

Dr. Farmer would later assert at trial that he suffers from attention-

deficit/hyperactivity disorder (“ADHD”), which causes him to jitter. He also

-4- claims that his behavior was widely known to the participants hereto, including

Crick and Dr. Nims. Crick would later testify that Dr. Farmer’s behavior that day

was typical for him.

Dr. Nims informed the group that Dr. Farmer was seeing a

psychiatrist but did not share that this counseling was for ADHD. Dr. Nims also

did not share with the group the opinions of Drs. Hargrove and Hatler that Dr.

Farmer was not impaired.

The group noted that they were not poised to determine whether Dr.

Farmer was actually impaired. The group discussed all of its options, including

drug testing and suspension of privileges. Because the group had no proof that Dr.

Farmer was impaired at the relevant time and because any discipline could have

serious consequences for Dr. Farmer, the group ultimately decided to re-refer Dr.

Farmer to the Foundation. Thus, they did not send Dr. Farmer for immediate

testing.

Separately, Dr. Lipson contacted Greg Jones, the medical director of

the Foundation. Jones asked about speaking to and testing Dr. Farmer. But Dr.

Lipson still did not speak to Dr. Farmer or request testing. Jones was not part of

the meeting.

As its purpose, the Foundation identifies and evaluates impaired

individuals for diagnosis, treatment, and advocacy. It does not punish or sanction

-5- doctors. The group decided that, if the Foundation found no impairment or need

for treatment, Dr. Farmer would be permitted to return to work immediately with

no repercussions.

The following day, Dr. Nims and Dr. Lipson met with Dr. Farmer,

told him there had been a complaint alleging impairment the previous day, and

directed him to go to the Foundation in Louisville before he would be able to see

patients again. Dr. Farmer asked to be tested immediately, but Baptist Health did

not perform any testing. Dr. Farmer later admitted that he may have consumed

alcohol the prior evening, but only after the complaint was lodged and he left

work. Thus, even a positive test performed 24 hours later would not show

conclusively that Dr. Farmer was impaired while at work.

Dr. Farmer drove himself to the Foundation, and after meeting with its

staff, he was sent to a third-party vendor for testing, as per the Foundation’s

general practice. The results of the test, which the Trial Court declined to admit

into evidence, did not indicate any contemporaneous impairment. However, the

Foundation’s comprehensive testing reflected a very high alcoholic metabolic

marker, indicating significant past impairment over the weeks before testing. That

testing indicated both that: (1) Dr. Farmer may be an alcoholic; and (2) the history

he had given Baptist Health was inconsistent with the testing results. The Trial

-6- Court forbid Baptist Health from discovering anything further about these tests on

Dr. Farmer and prevented the jury from receiving this information.

The Foundation referred Dr. Farmer for in-patient evaluation and

recommended that he not return to clinical practice until he completed the process.

The Trial Court also shielded this information from the jury. Dr. Farmer then

attended treatment for three days, where he was diagnosed with alcohol abuse

disorder, which is the diagnosis given to approximately 90% of physicians

reaching this stage with high metabolic markers and significant, chronic

impairment indicating alcoholism. This testing showed alcoholic consumption for

weeks before the complaint.

The Trial Court only allowed Baptist Health to inform the jury

generally and in conclusionary fashion that Dr. Farmer’s test results and

information caused the Foundation to report Dr. Farmer to the Kentucky Board of

Medical Licensure (“the Board”). On November 15, 2019, Baptist Health

separately advised the Board of the Foundation’s findings and recommendations.

The Trial Court also kept this information from the jury. Thus, the jury only knew

that Baptist Health made a disciplinary referral of Dr. Farmer to the Board, but did

not know that it did so after a finding of significant impairment of Dr. Farmer that

could cause injury to himself, patients, and the public. The jury was likewise kept

in the dark about Dr. Farmer’s testing, results, DUI, failures to comply with

-7- treatment, and giving false or inconsistent information to Baptist Health about his

alcohol consumption.

After conducting its own investigation, the Board issued an order

directing that Dr. Farmer was unable to practice medicine safely by reason of

alcohol or substance abuse. On November 26, Dr. Farmer signed the order,

consenting and agreeing to regular, long-term monitoring. This action, which was

reportable to the National Practitioner’s Data Bank, specifically noted that Dr.

Farmer was unable to practice medicine due to substance abuse. Although it was

not required to do so, Baptist Health allowed Dr. Farmer to substitute research

electives for patient care to help him by enabling him to complete his residency on

time, receive compensation, and be free of suspension or discipline. As per the

Board’s order, Baptist Health specifically disallowed Dr. Farmer from seeing

patients directly.

In mid-December 2019, which was approximately one month after the

reported incident, the Foundation sent a letter to Dr. Farmer with some restrictions,

subject to which Dr. Farmer would have to agree to abstain completely from

alcohol and mood-altering drugs and to submit to random drug tests, individual

group therapy, and appointments with a psychiatrist. Dr. Farmer would later claim

that this letter prevented him from taking his ADHD medication. Dr. Farmer did

not immediately sign it; and thus, Baptist Health did not allow him to return to

-8- work. Dr. Farmer then exhausted his paid leave. Subsequently, he took an unpaid

leave of absence. Weeks later, Dr. Farmer finally signed the letter.1 The Board’s

Inquiry Panel removed the restrictions on Farmer’s medical license, subject to his

agreement to a five-year contract with the Foundation, which required monthly

therapist and psychiatrist visits, daily check-ins, and supervised testing.

The parties agree that Dr. Farmer never failed a drug test. In mid-

February of 2020, Dr. Farmer returned to patient care. In September of 2020, Dr.

Farmer completed his residency with Baptist Health. Had he not taken leave

unilaterally, he could have completed it in June. Importantly, Dr. Farmer never

appealed or directly challenged any of the testing, diagnosis, or actions of the

treatment providers, the Foundation, or the Board. The Trial Court would not

allow the jury to learn about these undisputed facts, all of which were important to

Baptist Health to show its good faith and lack of actual malice, and all of which

were harmful to Dr. Farmer’s case.

In October 2020, the month after his residency ended, Dr. Farmer

brought this action against Baptist Health, asserting claims for breach of contract

and tortious interference with a prospective business advantage. In its answer,

Baptist Health asserted a defense under KRS 311.6191, which exempts from

1 The parties’ briefs on the exact times of the Foundation’s and the Board’s actions and years- long periods of monitoring are not clear. However, those timelines are not dispositive of this case. Therefore, we have discussed this series of events rather generally here.

-9- liability anyone who provides information to the Foundation “in good faith and

without actual malice.”

Baptist Health moved for summary judgment based upon the

exemption provided in the statute. The Trial Court denied the motion, concluding

that the statute did not provide blanket immunity from suit. (March 6, 2023,

Order, at p. 15.) Rather, it concluded that the statute provided a privilege, which

qualified as an affirmative defense. Id. As Baptist Health raised that defense, Dr.

Farmer had the burden to defeat it by showing that the defense did not apply under

the circumstances of the case. Id. Thus, the Trial Court ruled that there were

genuine issues of material fact concerning Baptist Health’s good faith and actual

malice, and the matter should proceed to a jury trial. Id. Baptist Health appealed

that interim ruling to this Court.

In the first appearance of this case before this Court, Baptist Health

submitted a motion for intermediate, urgent relief pursuant to Kentucky Rule of

Appellate Procedure (“RAP”) 21 to be decided by only one Court of Appeals

Judge. In the initial order, this Court denied intermediate relief, noting that the

Trial Court’s Order did not contain the requisite finality language, which would

have made it final and appealable under Kentucky Civil Rule of Procedure (“CR”)

54.02. Baptist Health Medical Group, Inc. v. John Mitchell Farmer, M.D., No.

2023-CA-0306-MR (Ky. App. Apr. 4, 2023) at pp. 4-5. A denial of summary

-10- judgment, as opposed to a grant, would not ordinarily end litigation and would not

do so specifically in this case, as a jury trial was to ensue. The Order further noted

that the defendants in the suit, which did not include the Board, did not file

motions to dismiss on immunity grounds and instead proceeded with some

discovery, thereby undercutting their own claims that they were to be free from

“the burdens of trial.” Id. at p. 6.2 The Order concluded that Baptist Health had

not met its “onerous burden” of showing immediate injury and irreparable harm.

Id. This Court made no decision on Dr. Farmer’s separate pending motion to

dismiss as interlocutory. Id. at p. 7.

Subsequently, in the second trip to this Court, and on Dr. Farmer’s

motion to dismiss, the full motion panel of three Judges of this Court decided that

the Trial Court’s order, holding that questions of fact remained as to Baptist

Health’s alleged bad faith and actual malice, was interlocutory, went directly to the

merits, and was not appealable. Baptist Health Medical Group, Inc. v. John

Mitchell Farmer, M.D., No. 2023-CA-0306-MR (Ky. App. Apr. 10, 2023) at p. 3.

This Court concluded that Baptist Health’s defense of immunity, or privilege,

would not be successful if the jury found bad faith and actual malice, thus

necessitating findings of fact by a jury. Id. at p. 6. Accordingly, the panel found

that the statute may provide protection from liability, but not immunity from suit.

2 The motions of the Foundation and the Board to intervene were pending at that time.

-11- Id. at pp. 7-8. “Whether couched as providing immunity from liability or a defense

to liability, the statute contemplates that actions containing these allegations will

and may be filed.” Id. at p. 8 (footnote omitted). Accordingly, this Court granted

the motion to dismiss the appeal and remanded the case back to the Trial Court for

proceedings to determine any liability. Id. at p. 10. Upon further appeal to the

Kentucky Supreme Court, emergency intermediate relief was again denied.

Baptist Health Medical Group, Inc. v. John Mitchell Farmer, M.D., No. 2023-SC-

0163-I (Ky. Apr. 24, 2023).

The parties attempted to engage in discovery prior to the looming

April 25, 2023, trial. Baptist Health sought discovery of Dr. Farmer’s extensive

testing, evaluation, and treatment records. Dr. Farmer refused, arguing that the

records were privileged under KRS 311.619, which provides some protection for

treatment records of licensed and potentially impaired physicians. In orders

entered on March 24, 2023, the Trial Court granted Dr. Farmer’s motion for a

protective order, concluding that records created or controlled by the Foundation

were privileged under KRS 311.619 and Kentucky Rule of Evidence (“KRE”) 507.

The Trial Court further concluded that Dr. Farmer’s filing of a lawsuit claiming

improper treatment by Baptist Health had not waived his privilege regarding the

treatment that he had received. The Trial Court also found that the treatment

records were not relevant to Dr. Farmer’s claim arising from Baptist Health’s

-12- decision to refer him to the Foundation for treatment. It ruled that the sole, narrow

issue for the jury to decide was whether Baptist Health acted in good faith and

without actual malice at the limited time of the referral. It rejected Baptist Health’s

argument that the treatment records provided proof of its lack of bad faith and

actual malice, and it forbade the use of those records in Baptist Health’s defense.

The Trial Court further granted Dr. Farmer’s motion in limine to

exclude evidence and prevent Baptist Health from making arguments about a

whole host of other factual issues related to its defense of good faith and lack of

actual malice. The Trial Court’s exclusion of vast swaths of evidence favorable to

Baptist Health and unfavorable to Dr. Farmer included the reasons for the referral

to treatment, facts underlying the diagnosis, past history, chronic alcohol abuse,

agreements to receive treatment, failures to comply with treatment, unexplained

leaves of absence from work, lack of dispute or appeal for the actions taken, test

results, reports, and dangers to patients, the public, and Dr. Farmer himself. The

Trial Court generally suppressed all of Baptist Health’s proof by shockingly

concluding that this evidence was not relevant to Baptist Health’s good faith and

actual malice at the precise time that it made the referral.

The Trial Court further rejected Baptist Health’s proposed stipulations

of undisputed factual evidence. Instead, it permitted Dr. Farmer to advise the jury

in general that the Foundation relied on amorphous test results to refer Dr. Farmer

-13- for evaluation, and those actions served as a basis for the Board’s investigation and

disciplinary process. And yet, the Trial Court curiously found that those results

and reports were relevant to the question of damages. The Trial Court did not

allow Baptist Health to present specific factual evidence or argument to the jury as

to the issue of Baptist Health’s liability for any damages. Consequently, The Trial

Court did not allow the jury to see the full picture of Baptist Health’s attempts to

get help for Dr. Farmer or the undisputed factual bases for its decision to refer him

to the Foundation.

In other words, the Trial Court omitted virtually all of the critical

information about Dr. Farmer from the abridged version of his history for the jury,

which did not hear the complete story. Instead, the jury was only given some of

the actions that Baptist Health had taken, without any context or explanation. The

Trial Court’s rulings crippled Baptist Health’s case and deprived it from presenting

any meaningful defense. Given this one-sided narrative, the jury’s ultimate and

substantial verdict was virtually guaranteed.

Baptist Health moved for a directed verdict at the close of Dr.

Farmer’s proof, and again at the close of all of the evidence, but the Trial Court

denied those motions. Neither Dr. Farmer nor the Trial Court gave a detailed

explanation of what facts could possibly support a finding of Baptist Health’s bad

faith or actual malice.

-14- At the conclusion of the April 25 through May 2, 2023, trial, and after

hearing only select portions of the facts of the case that were damning to Baptist

Health, the jury returned verdicts for Dr. Farmer on both counts, awarding Dr.

Farmer $236,044.00 for breach of contract and combined damages of

$3,500,000.00 for tortious interference with Dr. Farmer’s business relationship

with the Board and prospective future employers. The Trial Court subsequently

denied Baptist Health’s motions for judgment notwithstanding the verdict and for a

new trial. This appeal followed. Additional facts will be set forth below as

necessary.

II. Analysis

Unlike the procedural issues raised in the prior two appellate

proceedings regarding irreparable injury and interlocutory orders, the primary issue

in this appeal squarely concerns the merits of Baptist Health’s claim of immunity

or exemption from liability under KRS 311.6191. The related questions concern

whether the Trial Court properly defined the terms “bad faith” and “actual malice”

under the statute, and whether Baptist Health was allowed to and did establish its

good faith and lack of actual malice.

A. Application of KRS 311.6191

We begin with the text of KRS 311.6191, which addresses treatment

for impaired physicians and provides as follows:

-15- Any member of the impaired physicians program created under KRS 311.616, as well as any administrator, staff member, consultant, agent, or employee of the program acting within the scope of his or her duties and without actual malice, and all other persons who furnish information to the program in good faith and without actual malice, shall not be liable for any claim or damages as a result of any statement, decision, opinion, investigation, or action taken by the program, or by any individual member of the program.

In turn, KRS 311.616 authorized the Board to establish the Foundation “to promote

the early identification, intervention, treatment, and rehabilitation of individuals

licensed by the board who may be impaired by reason of illness, alcohol or drug

abuse, or as a result of any physical or mental condition.” KRS 311.616(1). A

referral allows the Foundation to intervene early before a physician’s condition

results in harm to patients and the public. To that end, and by its terms, KRS

311.6191 exempts from liability any person who furnishes information to the

Foundation in good faith and without actual malice. Thus, parties who furnish

information to the Foundation will not ordinarily be liable for civil claims based

upon such referrals. However, liability can be found where there is both actual

malice and lack of good faith.

Prior to oral argument, this Court granted the motion by the

Foundation and the Board to file an Amici Curiae brief. The Foundation and the

Board jointly assert that the Trial Court’s interpretation of KRS 311.6191 is

flawed. They also assert that the Trial Court’s holding imperils the public

-16- protection interest in the “early identification, intervention, treatment and

rehabilitation of individuals licensed by the board who may be impaired by reason

of illness, alcohol or drug abuse, as a result of a physical or mental condition.”

The Foundation and the Board maintain that the Trial Court’s ruling chills

hospitals, colleagues, and others from fulfilling reporting obligations required by

law. Thus, the Foundation and the Board argue that the Trial Court’s interpretation

of KRS 311.6191 undermines their ability to carry out their statutory functions

effectively. We have considered these arguments and interests in reaching our

conclusion.

Dr. Farmer first argues that KRS 311.6191 only applies to his tortious

interference claims and not to his breach-of-contract claim. We disagree. The

statute clearly provides that a party who furnishes information to the Foundation

without actual malice “shall not be liable for any claim or damages as a result of

any statement[.]” (Emphasis added.) This language broadly precludes liability for

all claims arising from the referral, including for breach of contract.

B. Immunity from Suit vs. Defense from Liability

As stated above, the two Opinions of this Court in the prior appeals

noted Baptist Health’s argument that the statute affords immunity from suit

entirely and not merely an affirmative defense to liability. Indeed, the language of

the statute itself specifically grants some protection to parties that provide

-17- information to the Foundation. Whether that protection is phrased as immunity,

privilege, or a defense to liability, we clearly held that “the statute’s protections do

not extend to statements made in bad faith or with actual malice.” Baptist Health

v. Farmer, Order Dismissing at p. 8. And a showing at trial of actual malice and

lack of good faith would defeat any claim or defense of immunity from liability.

Absent evidence of lack of actual malice and good faith, absolvement from liability

would only ensue at trial, and not beforehand.

“Immunity” is generally understood as an exemption from liability,

while a “privilege” pertains to the admissibility of certain evidence in legal

proceedings where liability remains a potential outcome. See Maggard v. Kinney,

576 S.W.3d 559, 566-67 (Ky. 2019). Although sometimes casually referred to as

providing immunity from civil suit, a privilege actually precludes the use of those

communications to sustain a cause of action. Id. at 567 (citing Halle v. Banner

Industries of N.E., Inc., 453 S.W.3d 179, 184 (Ky. App. 2014)). In this case, KRS

311.6191 exempts from liability certain communications made to the Foundation,

thus implicating doctrines of immunity and privilege.

However, and somewhat unhelpfully, the statute does not use either

the term “immunity” or “privilege.” Likewise, the case law does not always

clearly delineate between immunity and privilege. However, in Sisters of Charity

Health Systems, Inc. v. Raikes, 984 S.W.2d 464 (Ky. 1998), the Kentucky Supreme

-18- Court analyzed the language in KRS 311.377, which provides that any person who

is granted staff privileges by a health services organization shall be deemed to have

waived any claim of damages arising when the organization furnishes information

in good faith to any governmental or quasi-governmental credentialing agency.

The Supreme Court characterized that statute’s verbiage as creating a qualified

privilege for peer-review material, but only between the contracting medical

personnel and the health organization. Id. at 469-71.3

Similarly, in Toler v. Süd-Chemie, Inc., 458 S.W.3d 276 (Ky. 2014),

the Kentucky Supreme Court recognized a qualified privilege for certain

communications. Id. at 282. This time, it addressed whether such a privilege

offered immunity from suit in the context of an analysis of good faith and actual

malice arising from defamation per se:

The qualified privilege is just that: qualified. Not an absolute defense, the privilege’s protection can be lost through unreasonable actions amounting to abuse. Indeed, the party asserting a qualified privilege may still be responsible for falsehoods if both actual malice and falsity are affirmatively shown. The qualified privilege operates to allow defendants the necessary latitude to communicate freely while maintaining accountability when the defendant operates outside of or contrary to the privilege. In this context, accordingly, actual malice 3 In Shure v. Ford, No. 2011-CA-000144-MR, 2012 WL 1657133 (Ky. App. May 11, 2012) (unpublished) (cited pursuant to RAP 41(A)), a panel of this Court also interpreted the language in KRS 311.377, as discussed in Raikes. The panel ultimately concluded that the statute creates a qualified immunity for communications made in good faith and without actual malice. Id. at *5-7.

-19- refers to “malice in fact” – read: malevolence or ill will. A defendant who enjoys the qualified privilege may make defamatory statements, “unless maliciously uttered.” Our case law and the relevant treatises – by focusing on the utterance of the defamatory statement rather than its veracity – evidence this distinction. With the qualified privilege, it is not so much what was said as it is how it was said. After all, the qualified privilege will provide protection despite a statement’s falsity, assuming, of course, the privilege is not abused.

Id. at 283-84 (footnotes omitted). Thus, the analysis in Toler applies the term

“privilege” as a protection from liability from a claim, and not an absolute

immunity from suit. Its reasoning applies logically to cases outside of the context

of defamation law, such as this one, which revolve around evidence of bad faith

and actual malice. Consequently, the party asserting a qualified privilege may still

be responsible for falsehoods if both actual malice and falsity or lack of good faith

are affirmatively shown by a plaintiff. Id.

In this case, we must now address the distinction between immunity

and privilege, and the meaning of qualified privilege in a section of KRS Chapter

311 other than cited in Raikes and Shure. The language of KRS 311.6191 clearly

indicates that the General Assembly intended to provide qualified protection from

liability to parties who furnish information to the Foundation unless a plaintiff

affirmatively shows both bad faith and actual malice.4 Toler, 458 S.W.3d at 283.

4 We recognize that the term “qualified immunity” often refers to the doctrine of “qualified official immunity,” which is the immunity from tort liability afforded to public officers and

-20- In its March 6, 2023, order denying Baptist Health’s motion for

summary judgment, the Trial Court recognized that Dr. Farmer had the burden to

establish these elements, and that he could only do so by engaging in factual

discovery. Accordingly, dismissal on absolute immunity or privilege grounds prior

to fact-finding at trial by a jury was unwarranted. Rather, Dr. Farmer’s burden of

proof on summary judgment was subsumed within his ultimate burden of proof at

trial. There appears to be no other way to establish actual malice and bad faith, or

the lack thereof, other than presenting such evidence at a trial before a fact-finder.

Any other holding, i.e., preventing the case from proceeding to trial, would render

meaningless the requirements of showing evidence of actual malice and bad faith

to escape immunity, privilege, or other protection. That being said, the Trial Court

must still address this evidence before it sends the case to a jury – in the form of

directed verdict motion practice at the close of a plaintiff’s case or the close of all

of the evidence at trial. Judgements notwithstanding the verdicts likewise remain

on the table, and can only be made after hearing all of the evidence.

employees for acts performed in the exercise of their discretionary duties. Patton v. Bickford, 529 S.W.3d 717, 723 (Ky. 2016). Because this case does not involve a public officer or employee, that doctrine is inapplicable here. However, in this case, we use the term “qualified immunity” to describe a statutory immunity that is not absolute, but conditional (or qualified) upon findings of a lack of good faith and actual malice.

-21- C. Good Faith and Actual Malice

To establish liability at trial, Dr. Farmer was required to meet his

burden of proving at trial Baptist Health’s lack of good faith and actual malice. Dr.

Farmer contends that he could meet his burden by presenting evidence either that

Baptist Health acted in bad faith or with actual malice. We disagree, noting that

the express language of KRS 311.6191 clearly requires a showing that Baptist

Health did not act in good faith and with actual malice. Moreover, acting with

malice and acting in good faith are mutually exclusive. Martin v. O’Daniel, 507

S.W.3d 1, 5 (Ky. 2016). Thus, both showings are required.

Furthermore, Toler, supra, recognized that the party seeking to defeat

a qualified privilege cannot merely assert that the information was false or

misleading; doing so alone should lead to a directed verdict. Toler, 458 S.W.3d at

285. Rather, it was Dr. Farmer’s burden here to present some evidence that would

incline a reasonable person to believe that Baptist Health’s referral “was not

simply the product of mistaken observation, but the result of malice, i.e., some

evidence that [Baptist Health] knew [Dr. Nims] was lying or making wholly

unfounded statements without regard to their truth or falsity.” Id. at 285-86

(quoting Harstad v. Whiteman, 338 S.W.3d 804, 813 (Ky. App. 2011)).

There is some dispute over the type of malice that Dr. Farmer was

required to prove. Baptist Health argues that the Trial Court circumscribed too

-22- narrowly the definitions of “actual malice” and “good faith,” focusing only on the

definition of “malice” in KRS 411.184(1)(c) regarding punitive damages, which

were not requested in this case.5 It claimed that this limitation led to the improper

exclusion of evidence by only allowing introduction of information as to whether

Baptist Health specifically intended to cause harm to Dr. Farmer at the time the

report to the Foundation was made. It notes that the Trial Court failed to

incorporate the objective standard of reasonableness. And this failure allegedly

caused the Trial Court to exclude further certain evidence that ought to have been

allowed.

KRS 311.6191 specifically uses the term “actual malice.” As with

public figures, the public purpose component of KRS 311.6191 seeks to promote

discussion and open communication – here, with the Foundation. In this case, the

statute serves to protect doctors, patients, and the general public at large by

providing information to enable treatment for physicians who need it and would

otherwise do harm. Therefore, we conclude that the Trial Court improperly

5 The Trial Court used the term “great” to qualify “indifference.” See also Stearns Coal Co. v. Johnson, 238 Ky. 247, 252, 37 S.W.2d 38, 40 (1931). Baptist Health wanted the “indifference” to be “complete,” “flagrant,” or “reckless.” (Appellant Brief, at p. 20.) But we need not delve into the propriety of the Trial Court’s novel use of punitive damages language in the jury instructions in this case because the case should have never gone to a jury, and the jury should never have been instructed. Our ruling that Dr. Farmer did not tender any evidence of actual malice no matter how that term is defined should not be read as countenancing the instructions that the Trial Court gave in this case.

-23- applied the “malice” definition used for determining punitive damages to limit

evidence, when it should have used the “actual malice” standard in the statute.

“Actual malice” requires “more than mere negligence,” and it “must be shown by

clear and convincing evidence.” Welch v. Am. Publ’g Co. of Kentucky, 3 S.W.3d

724, 727-28 (Ky. 1999). This standard was specifically designed to be a difficult

one to meet, precisely because of the important policy reasons behind the statute

itself – to obtain treatment for impaired doctors and prevent harm to their patients.

Dr. Farmer contends that actual malice may be inferred from Baptist

Health’s failure to follow the Drug Testing Policy in its Resident’s Manual by

collecting blood or urine samples immediately after the complaint was filed.

Instead, Baptist Health referred Dr. Farmer to the Foundation for testing the

following day, resulting in a 24-hour delay.

Under the “actual malice” standard, Baptist Health’s mere, alleged

negligence in failing to follow its written policies prior to making a referral does

not alone constitute bad faith or actual malice within the meaning of KRS

311.6191. Likewise, Baptist Health’s alleged negligence in conducting the

investigation prior to referring the matter does not give rise to liability for actual

malice. Baptist Health did refer Dr. Farmer to the Foundation, and Dr. Farmer was

tested the day after the complaint. If it had referred him the day before, such

referral would still have been well after the incident, and Baptist Health was

-24- concerned that positive results would reflect impairment subsequent to the

treatment of patients. This concern was objectively reasonable, given Dr. Farmer’s

own admission that he might have consumed alcohol upon returning home

immediately after the complaint. And, it shows that Baptist Health was actively

trying not to harm Dr. Farmer. Moreover, the referral proved to be substantiated.

Although Dr. Farmer may not have been intoxicated on the day of the incident, the

comprehensive testing revealed chronic alcohol abuse, indicating that Baptist

Health had good reason for the referral. And still, there is no evidence that Dr.

Farmer was or was not impaired at the time of the incident.

With regard to Dr. Farmer’s DUI, Baptist Health knew of his

conviction because he was required to submit it in his application. And Dr.

Farmer’s willful failure to follow the Foundation’s earlier treatment plan for the

DUI is relevant to Baptist Health’s defense of good faith in making the subsequent

referral.

In its investigation, Baptist Health documented its concerns, and after

significant discussion about all available options, the group specifically decided to

refrain from punishing or disciplining Dr. Farmer. It called for testing to determine

whether there was even a problem, and if so, whether treatment was warranted.

There is no evidence that Baptist Health sought testing as a means of suspending or

otherwise taking actions harmful to Dr. Farmer. To the contrary, the evidence

-25- showed that if Dr. Farmer’s testing did not reveal his impairment, Baptist Health

would not mandate any treatment. But the testing in fact showed the exact

opposite – significant impairment that needed treatment. And the Trial Court

prevented the jurors from hearing this evidence while at the same time impaneling

them for the purpose of rendering a decision about Baptist Health’s motives in

making a referral based upon scientific testing.

Furthermore, Baptist Health’s referral to the Foundation and its

subsequent, third-party testing results validated the group’s concerns and showed a

good faith foundation for the initial complaint from the two patients’ mother, as

well as for Baptist Health’s ensuing suspicions and actions. Regardless of any

impairment at the time in question, the testing showed chronic alcohol abuse and

Dr. Farmer’s provision of inaccurate information about his alcohol consumption to

Baptist Health. This information goes directly to Dr. Farmer’s credibility, which is

always at issue with any witness at trial, particularly a plaintiff with a burden of

proof, such as here. But except for the very limited stipulation that vague testing

led to the disciplinary proceedings by the Board, the Trial Court did not admit of

any of this information. Because Baptist Health’s defense and claim of immunity

and privilege relied necessarily upon the sole grounds of good faith and lack of

malice, the Trial Court’s severe constriction of evidence was undue.

-26- Compounding this error, while the Trial Court leveled improper

evidentiary curbs upon Baptist Health, it allowed Dr. Farmer unfettered leeway to

attempt to show bad faith and actual malice. And it accepted at face value Dr.

Farmer’s claim that he had such evidence that was sufficient to present to a jury.

Yet, the proof he proffered was shockingly thin.

As to any improper motive of Baptist Health, at most, Dr. Farmer

contends that Dr. Nims had personal, and potentially failed romantic, issues with

him, leading her to fail to disclose her prior discussions with Drs. Hargrove and

Hatler to the group. He believes, without providing any evidence, that Dr. Nims’

nondisclosure was motivated by her supposed, unrequited love crush on him.

What he did not show was that if Baptist Health had been made aware that Drs.

Hargrove and Hatler did not believe that Dr. Farmer had been impaired that day,

Baptist Health would have acted any differently. Quite the opposite, the

undisputed proof showed that Baptist Health correctly assessed the concerns about

Dr. Farmer’s chronic impairment, and those suspicions were substantiated by

scientific tests. Baptist Health did not sanction Dr. Farmer; it referred him for

testing and potential treatment based upon the information it had at the time. Had

that information included the opinions of Drs. Hargrove and Hatler, the result may

have been no different. Baptist Health was seeking answers at that stage, not

-27- levying punishment. And Dr. Farmer did not present evidence that Drs. Hargrove

and Hatler were opposed to having Dr. Farmer tested.

Even if Dr. Nims had desires for Dr. Farmer that he did not share, he

did not make the connection to establishing bad faith and actual malice on the part

of Baptist Health for referring him to treatment. And even with the allegedly

omitted information, there was no evidence that Baptist Health’s concerns about

Dr. Farmer were so lacking in merit as to be objectively unreasonable. More

important, the Trial Court allowed the jury to speculate improperly that Dr. Nims

set out to harm Dr. Farmer because the Trial Court refused to allow any of the

abundant motive evidence that Baptist Health had legitimate, accurate, well-

founded, and good-intentioned reasons to look into Dr. Farmer’s suspected

impairment. In a search for the truth, a trial jury cannot be given only one-half of

the story.

Here, all of the testing only suggested that Dr. Farmer was not

impaired at some point after the complaint against him had been lodged. Baptist

Health through its employees did not initiate the complaint; the mother of two

patients did based upon Dr. Farmer’s suspicious behavior. Nonetheless, the Trial

Court did not allow Baptist Health to present to the jury any reasonable basis for it

to believe that Dr. Farmer was impaired at the time of the incident. And, the Trial

Court did not permit the jury to hear of other, undisputed, chronic impairment.

-28- And yet even the minimal evidence that the Trial Court did authorize the jury to

hear showed no intent whatsoever on the part of Baptist Health to cause wrongful

injury to Dr. Farmer.

The “actual malice” standard required Dr. Farmer to present evidence

showing that Baptist Health either knew the information that it provided to the

Foundation was false or that it made the referral with reckless disregard of whether

the information was true or false.6 Toler, supra, at 289. Here, Dr. Farmer merely

and speculatively claims that Dr. Nims failed to disclose information that might

have led to a decision different from referring him to the Foundation. He did not

show that Dr. Nims’ alleged, ulterior motivations demonstrated knowledge of

falsity or a disregard of the truth or falsity of the information by Baptist Health.

He also did not show that referring a chronically impaired doctor for treatment was

some sort of a revenge scheme here. Likewise, Dr. Farmer did not submit any

evidence that Baptist Health intended to cause injury by having Dr. Farmer

assessed. And again, Baptist Health was not allowed by the Trial Court to show

that the information was true and that its actions were justified by the testing

results. In seeking to defeat a qualified privilege, Dr. Farmer cannot merely assert

6 Even under the definition of the terms used in Trial Court’s instructions, Baptist Health was precluded from showing relevant evidence of good faith and lack of malice by introducing facts that it acted with justification and excuse or specifically did not intend to cause injury.

-29- that the information was false or misleading, and doing so alone should have lead

the Trial Court to grant a directed verdict. Toler, 458 S.W.3d at 285. Dr. Farmer

had the burden to show some evidence that would incline a reasonable person to

believe that Baptist Health’s referral “was not simply the product of mistaken

observation, but the result of malice, i.e., some evidence that [Baptist Health] knew

[Dr. Nims] was lying or making wholly unfounded statements without regard to

their truth or falsity.” Id. at 285-86 (quoting Harstad v. Whiteman, 338 S.W.3d

804, 813 (Ky. App. 2011)). He made no such showing.

Moreover, any determination of Baptist Health’s lack of good faith

and actual malice in making the referral cannot be divorced from the outcome of

the Foundation’s testing or the Board’s investigation. To the contrary, the primary

purpose behind the referral process is to allow the Foundation to intervene early

before a physician’s condition results in harm to patients, the physician, or the

public. This process necessarily anticipates that a medical employer may refer a

physician based upon concerns arising before there is a clear showing that the

physician is actually impaired. And the process allows the Foundation to make its

own determination whether the concerns are substantiated. It was not required to

accept the unsubstantiated lay opinions of Drs. Hargrove and Hatler as to Dr.

Farmer’s sobriety. And importantly, Baptist Health could have referred Dr.

-30- Farmer to the Foundation based solely on the complaint alone and could have done

so in good faith without any input from any doctor.

As the Foundation and the Board compellingly argue, the very process

anticipates a “good faith” referral. Even the limited evidence that the Trial Court

allowed the jury to hear is entirely devoid of proof that Baptist Health lacked good

faith and acted with actual malice. However, Baptist Health was not permitted to

counteract Dr. Farmer’s implications of malice with evidence that the Foundation

and the Board substantiated its concerns.

Indeed, the uncontroverted proof showed that at least some injury to

Dr. Farmer resulted from his own alcohol consumption. Once Baptist Health had a

reasonable basis to suspect impairment, it was required to report it. See Norton

Hospitals, Inc. v. Peyton, 381 S.W.3d 286, 292 (Ky. 2012), addressing a similar

immunity for reporting child abuse under KRS 620.050(1). Furthermore, a referral

to the Foundation is not disciplinary. And Dr. Farmer did not prevail upon the

Foundation to find no need for him to seek treatment.

Dr. Farmer admits that Baptist Health was entitled – and maybe

required – to investigate the reported complaint against him. He admits that the

results of the Foundation’s testing led it to refer the matter to the Board. He

likewise concedes that the Foundation was likely required to make a report to the

Board, and that the Foundation’s action did not constitute a disciplinary referral.

-31- Dr. Farmer also admits that the Board imposed restrictions on him based on the

outcome of an independent investigation. Both the Foundation and the Board

determined that Baptist Health’s concerns were substantiated. Dr. Farmer had the

chance to convince the Foundation and the Board that he did not need treatment.

He failed. While the Trial Court ruled that the records of the Foundation’s testing

and investigation were not discoverable or admissible, the results alone – which the

Trial Court did allow – are highly relevant to the question of actual malice. And

they showed that at least some of Dr. Farmer’s claimed injuries were caused from

his own alcohol consumption. In order to defend itself, Baptist Health should have

been allowed to present evidence that showed that it could have in good faith

foreseen that Dr. Farmer’s test results would be so high, and thus that it could not

have acted with bad faith or actual malice in making the referral. If the test results

had been negative, and then Baptist Health took actions against him, maybe a case

for malice could be made. But that did not occur here. Baptist Health must

rightfully be concerned about an impaired doctor committing malpractice and

hurting someone both for the harm itself and for its malpractice implications and

potential awards.

And Dr. Farmer clearly placed his treatment at issue here by the

allegations that he made in his suit. His medical treatments, diagnoses, and

history, at least as far back as the incident that gave rise to this litigation are highly

-32- relevant. A Trial Court can always make admonishments to the jury about the

evidence, as necessary. That was not done here.

But aside from the Trial Court’s improper exclusion of Baptist

Health’s evidence of good faith and lack of actual malice, we must stress again that

the important factor here is that the Trial Court did not receive any real evidence

from Dr. Farmer of Baptist Health’s bad faith and actual malice. Instead, it

allowed the case to proceed to jury verdict solely upon the basis of innuendo,

assumptions, and speculation. As discussed above, KRS 311.6191 placed the

burden of proof on Dr. Farmer to show that Baptist Health referred him to the

Foundation in bad faith and with actual malice. The sufficiency of his evidence

was directly before the Trial Court on Baptist Health’s motion for directed verdict.

A Trial Court may direct a verdict on an issue when there was a

“complete absence of proof on a material issue or if no disputed issues of fact exist

upon which reasonable minds could differ.” Bierman v. Klapheke, 967 S.W.2d 16,

18-19 (Ky. 1998). See also CR 50.01. In making this determination, the Trial

Court must “admit[] the truth of all evidence which is favorable to the party against

whom the motion is made.” National Collegiate Athletic Ass’n By and Through

Bellarmine College v. Hornung, 754 S.W.2d 855, 860 (Ky. 1988). The Trial Court

may not consider the credibility or weight of the proffered evidence, because “if

there is conflicting evidence, it is the responsibility of the jury, the trier of fact, to

-33- resolve such conflicts.” Daniels v. CDB Bell, LLC, 300 S.W.3d 204, 215 (Ky.

App. 2009) (citing Hornung, 754 S.W.2d at 860).

Here, and we must emphasize at the very most, Dr. Farmer had this

evidence: his failure to be tested immediately after the complaint and his

uncorroborated assertion that Baptist Health acted in bad faith because Dr. Nims

failed to present the opinions of Drs. Hargrove and Hatler to the group because Dr.

Farmer would not engage in a personal relationship with her. We have already

explained these deficiencies in this Opinion. Testing Dr. Farmer after the

complaint would not necessarily have shown impairment at work and may have

improperly shown impairment that occurred after work. Regarding the second

point, Dr. Farmer’s bald supposition of unrequited attention alone does not

constitute bad faith or actual malice under any conceivable standard. The assertion

that information is misleading by omission is simply not enough to survive a

directed verdict motion in a case of qualified privilege. Toler, 458 S.W.3d at 285.

Even if Dr. Nims should have given the group the opinions of Drs. Hargrove and

Hatler, and even if she withheld it improperly, and even if the group might have

relied upon it, there is still no sufficient evidence of actual malice. There was no

evidence to suggest that Baptist Health was required to reject the other, significant

concerns about Dr. Farmer and decline to refer the matter to the Foundation for

further investigation. And there was no evidence that Baptist Health acted in bad

-34- faith or with actual malice for doing so. Likewise, there was no evidence that

Baptist Health knew that Dr. Nims was withholding information, lying, or making

unfounded statements without regard to their falsity.

Indeed, the evidence showed that Baptist Health acted with some

good faith in taking Dr. Farmer’s interests into account and helping him to

complete his residency promptly by substituting electives other than seeing

patients. Dr. Farmer did not show that the information that Baptist Health

provided to the Foundation was false or materially misleading, or that Baptist

Health knew that it was. Dr. Farmer also did not show that Baptist Health intended

to cause injury to him in violation of his clearly established rights.

The purpose and clear language of KRS 311.6191 affords a broad,

albeit qualified, exception from liability to parties who furnish information to the

Foundation. This exemption will be abrogated only upon a plaintiff’s clear

showing that a defendant was not acting within the scope of his duties, was not

acting in good faith, and was acting with actual malice. In this case, there was a

complete absence of proof on the material issue of actual malice.

In short, Dr. Farmer abjectly failed to meet his burden of showing

some evidence of either bad faith or actual malice on Baptist Health’s part. Given

the dearth of evidence on these two required elements, the Trial Court should not

have allowed this case to go to the jury. Having no evidence of bad faith or actual

-35- malice, the Trial Court was required to grant a directed verdict at the close of Dr.

Farmer’s case.

As noted above, the Foundation and the Board each conducted their

own inquiries, finding Baptist Health’s concerns to be substantially justified. Even

more significantly, Dr. Farmer agreed to the Board’s conditions and long-term

supervision by the Foundation. While Dr. Farmer now complains he was forced to

accept those conditions, he cannot use this action to cast doubt on the validity of

his agreements with the Foundation and the Board. And those binding agreements

would necessarily preclude a finding that the information that Baptist Health

provided to the Foundation was false or materially misleading, or that it acted with

reckless disregard of the truth or falsity of that information. Thus, Dr. Farmer

cannot establish that Baptist Health acted with actual malice in making the initial

referral to the Foundation. Therefore, we must conclude that Baptist Health was

entitled to a directed verdict based upon the provisions of KRS 311.6191. The

Trial Court abused its discretion by sending this case to this jury, who we must re-

emphasize, was improperly prevented from hearing all of the critical evidence

relevant to Baptist Health’s defense. One side of a case alone without the other

side necessarily tips the scales. The verdict resulting from this unbalanced

-36- presentation and exclusion of evidence cannot stand, and the Trial Court should not

have allowed the case to get this far.7

D. Other Issues

Even if Baptist Health were not entitled to a directed verdict based on

the lack of a showing of bad faith and actual malice, we would still conclude that

the Trial Court erred by allowing Dr. Farmer’s claim for tortious interference to

proceed to the jury. Dr. Farmer clearly does not have a business relationship with

the Board.

As its statutory obligation, the Board must “regulate, control and

otherwise discipline the licensees who practice medicine and osteopathy within the

Commonwealth of Kentucky.” KRS 311.555. In KRS Chapters 13B and 311, the

legislature set forth a comprehensive framework for the Board’s conduct in those

matters. See Kentucky Bd. of Med. Licensure v. Strauss, 558 S.W.3d 443, 448-50

(Ky. 2018). Dr. Farmer’s relationship with the Board is governed by the

framework. Given the Board’s express statutory mandate, we agree with Baptist

Health that Dr. Farmer does not have an actionable business or profit relationship

or expectancy with the Board, and the two do not have an aligning, voluntary,

economic interest. The tort simply does not encompass their relationship.

7 For the same reasons, the Trial Court should have granted a judgment notwithstanding the verdict when it was again confronted with a complete dearth of evidence of bad faith and actual malice.

-37- Likewise, and in any event, the alleged injury to Dr. Farmer’s

relationships with prospective future employers, and the alleged contract breach,

were caused by the disciplinary actions of the Board – if not by Dr. Farmer himself

– but not from Baptist Health’s actions of non-disciplinary referral to the

Foundation. Similarly, Dr. Farmer’s alleged injury from the breach of contract

arose from the actions taken by the Foundation and the Board, not Baptist Health.

And as noted above, Dr. Farmer failed to complete his residency on time only

because he failed to sign agreements before he exhausted his excused absences and

unilaterally left, taking unpaid leave. Dr. Farmer made no showing that his alleged

rupture of business relationships was caused by Baptist Health’s allegedly

wrongful actions. Dr. Farmer cited to no authority to support this cause of action,

and the Trial Court should not have allowed it to proceed. Even if the claims were

not otherwise precluded by protection from liability under KRS 311.6191, Baptist

Health would still have been entitled to pre-trial dismissal of the tortious

interference claim.

As discussed above, Dr. Farmer placed the truth or falsity of the

matters relating to Baptist Health’s initial referral of him to the Foundation. Thus,

it would appear that he waived any privilege to which he was entitled under KRS

311.619. Similarly, the Trial Court abused its discretion by excluding evidence of

the subsequent actions taken by the Foundation and the Board. However, since we

-38- have concluded that Baptist Health was entitled to dismissal of Dr. Farmer’s

claims, those issues are now moot. Similarly, any question about excessiveness of

the jury’s damages award is now moot, as that award is vacated by the reversal.

III. Conclusion

Accordingly, we reverse the judgment of the Jefferson Circuit Court,

and we remand this matter for entry of a directed verdict dismissing Dr. Farmer’s

claims.

ALL CONCUR.

-39- BRIEFS FOR APPELLANTS: BRIEF FOR APPELLEE:

Bethany A. Breetz Marvin L. Coan Louisville, Kentucky David L. Sage Louisville, Kentucky Jeffery T. Barnett Robert J. Benvenuti, III Kathleen A. DeLaney Holly R. Iaccarino Indianapolis, Indiana Lexington, Kentucky ORAL ARGUMENT FOR BRIEF FOR AMICUS CURIAE: APPELLEE:

Leanne K. Diakov Kathleen A. DeLaney Louisville, Kentucky

Michael J. O’Connell Louisville, Kentucky

ORAL ARGUMENT FOR APPELLANTS:

Bethany A. Breetz

-40-