IMPORTANT NOTICE “NOT TO BE PUBLISHED OPINION”
THIS OPINION IS DESIGNATED “NOT TO BE PUBLISHED” PURSUANT TO RULE OF APPELLATE PROCEDURE (RAP) 40(D). THIS OPINION SHALL NOT BE CITED AS BINDING PRECEDENT IN ANY OTHER CASE IN ANY COURT OF THIS STATE. UNDER RAP 41, UNPUBLISHED OPINIONS OF KENTUCKY APPELLATE COURTS RENDERED AFTER JANUARY 1, 2003, THAT ARE FINAL UNDER RAP 40(G), MAY BE CITED BY A PARTY FOR CONSIDERATION BY A COURT IF THERE IS NO PUBLISHED OPINION THAT ADEQUATELY ADDRESSES THE POINT OF LAW BEING ARGUED BY A PARTY. IF AN UNPUBLISHED OPINION IS CITED FOR CONSIDERATION BY A COURT THE OPINION SHALL BE SET OUT AS AN UNPUBLISHED OPINION IN THE DOCUMENT IN WHICH THE UNPUBLISHED OPINION IS CITED. RENDERED: JUNE 25, 2026 NOT TO BE PUBLISHED
Supreme Court of Kentucky 2025-SC-0207-MR
SUMMIT MEDICAL GROUP INC. D/B/A APPELLANTS ST. ELIZABETH PHYSICIANS AND MICHAEL K. DAVENPORT, M.D.
ON APPEAL FROM COURT OF APPEALS V. NO. 2024-CA-1389 KENTON CIRCUIT COURT, NO. 20-CI-01729
HONORABLE PATRICIA M. SUMME, APPELLEE JUDGE, KENTON CIRCUIT COURT
AND
RICKY GRIMES; KAREN GRIMES; REAL PARTIES IN INTEREST/ ANTHEM HEALTH PLANS OF KENTUCKY APPELLEES D/B/A ANTHEM BLUE CROSS AND BLUE SHIELD; AND SAINT ELIZABETH MEDICAL CENTER, INC.
MEMORANDUM OPINION OF THE COURT
AFFIRMING AND REMANDING
This case is a companion to that of Saint Elizabeth Medical Center, Inc. v.
Hon. Patricia Summe, __ S.W.3d __, No. 2025-SC-0236-MR (Ky. Jun. 25, 2026)
and interested parties should read the companion case first to fully understand
our disposition in this opinion. Both cases were consolidated for purposes of
appeal by the Court of Appeals and considered in one opinion in that court.
Whereas the companion case dealt with the scope of KRS 311.377(2) and
whether the Completed Application Materials are within it, this case presents a corollary question: whether the Appellants, specifically Dr. Davenport, can be
compelled by the trial court to request the Completed Application Materials
from Saint Elizabeth and then disclose said Materials to the Plaintiffs despite
Saint Elizabeth’s assertion of privilege. In other words, the Appellants’ claim is
derivative of Saint Elizabeth’s claimed privilege. If Saint Elizabeth does not
possess a privilege in the Completed Application Materials, then there is no
discernable harm in Dr. Davenport being compelled to disclose the Materials if
he is ordered so to do.
Because of our ruling in the companion case that the Completed
Application Materials are subject to the general privilege contained in KRS
311.377(2) but may be excepted from that privilege pursuant to KRS
311.377(3), and the trial court upon remand should conduct the proper
analysis to determine the applicability of the exception, we conclude the
Appellants in this case do not meet the prerequisites for a writ of prohibition at
this time.
Typically, a trial court’s order that would entail violation of a privilege
“satisfies both the requirement of no adequate remedy by appeal, ‘because
privileged information cannot be recalled once it has been disclosed,’ and the
substitute requirement in ‘special cases’ that the administration of justice
would suffer.” Collins v. Braden, 384 S.W.3d 154, 158 (Ky. 2012) (quoting St.
Luke Hosps., Inc. v. Kopowski, 160 S.W.3d 771, 775 (Ky. 2005)). In other
words, a potential violation of privilege presents a great and irreparable injury
2 under the normal second-class writ standard or would harm the
administration of justice so as to meet the special cases exception.
In this specific case, however, it should first be noted that Appellants
couch their own claim in ambiguity. Throughout their brief they assert their
own uncertainty as to whether the trial court did in fact order them to obtain
the Completed Application Materials from Saint Elizabeth and provide it in
discovery in spite of Saint Elizabeth’s asserted privilege. Speculative claims of
possible harm do not present adequate grounds for issuance of a writ. Caldwell
v. Chauvin, 464 S.W.3d 139, 159 (Ky. 2015) (“We decline to exercise our
discretion to issue a writ in this instance even though any ex parte disclosure
of protected health information would surely violate HIPAA. This injury is too
speculative to merit such an extraordinary remedy.”); see also Barnes v.
Goodman Christian, 626 S.W.3d 631, 638 (Ky. 2021). The proper procedure in
the trial court, given the uncertainty of the Appellants, was to file a motion for
clarification, put the issue squarely before it, and obtain a ruling.
Nonetheless, even taking the trial court’s order as sufficiently definite to
remove it from the realm of ambiguity, the Appellants’ claim rests on Saint
Elizabeth’s assertion of privilege pursuant to KRS 311.377(2). Grimes, the Real
Party in Interest, asserts Dr. Davenport could at any time request the
Completed Application Materials that he submitted to Saint Elizabeth, and
Saint Elizabeth’s own By-Laws would entitle him to them. Dr. Davenport has
so far refused to do this because Saint Elizabeth has asserted the Materials are
privileged as a record of a designated peer review function by a covered entity
3 pursuant to KRS 311.377(2). In the companion case, we agreed with Saint
Elizabeth’s interpretation of KRS 311.377(2), but also held KRS 311.377(3)
excepts from the privilege any materials or information otherwise
independently discoverable. We reaffirmed Leanheart v. Humana, Inc., that “the
placement of otherwise discoverable records and information in a peer review
file does not entitle them to the protection of KRS 311.377(2).” 933 S.W.2d 820,
821 (Ky. 1996). Although we issued the writ in the companion case, that was
because the trial court and Court of Appeals erroneously concluded KRS
311.377(2) did not apply to the Completed Application Materials. The proper
statutory analysis was not conducted. 1
Given our ruling in the companion case, we decline to address the
question presented in this case. That question is obviated by our resolution
that the trial court failed to conduct the proper statutory analysis, and upon
remand a new opportunity should be had for the trial court to determine if any
information in the Completed Application Materials is subject to the exception
contained in KRS 311.377(3). Should the trial court determine some or all of
Completed Application Materials are not subject to the exception (and
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IMPORTANT NOTICE “NOT TO BE PUBLISHED OPINION”
THIS OPINION IS DESIGNATED “NOT TO BE PUBLISHED” PURSUANT TO RULE OF APPELLATE PROCEDURE (RAP) 40(D). THIS OPINION SHALL NOT BE CITED AS BINDING PRECEDENT IN ANY OTHER CASE IN ANY COURT OF THIS STATE. UNDER RAP 41, UNPUBLISHED OPINIONS OF KENTUCKY APPELLATE COURTS RENDERED AFTER JANUARY 1, 2003, THAT ARE FINAL UNDER RAP 40(G), MAY BE CITED BY A PARTY FOR CONSIDERATION BY A COURT IF THERE IS NO PUBLISHED OPINION THAT ADEQUATELY ADDRESSES THE POINT OF LAW BEING ARGUED BY A PARTY. IF AN UNPUBLISHED OPINION IS CITED FOR CONSIDERATION BY A COURT THE OPINION SHALL BE SET OUT AS AN UNPUBLISHED OPINION IN THE DOCUMENT IN WHICH THE UNPUBLISHED OPINION IS CITED. RENDERED: JUNE 25, 2026 NOT TO BE PUBLISHED
Supreme Court of Kentucky 2025-SC-0207-MR
SUMMIT MEDICAL GROUP INC. D/B/A APPELLANTS ST. ELIZABETH PHYSICIANS AND MICHAEL K. DAVENPORT, M.D.
ON APPEAL FROM COURT OF APPEALS V. NO. 2024-CA-1389 KENTON CIRCUIT COURT, NO. 20-CI-01729
HONORABLE PATRICIA M. SUMME, APPELLEE JUDGE, KENTON CIRCUIT COURT
AND
RICKY GRIMES; KAREN GRIMES; REAL PARTIES IN INTEREST/ ANTHEM HEALTH PLANS OF KENTUCKY APPELLEES D/B/A ANTHEM BLUE CROSS AND BLUE SHIELD; AND SAINT ELIZABETH MEDICAL CENTER, INC.
MEMORANDUM OPINION OF THE COURT
AFFIRMING AND REMANDING
This case is a companion to that of Saint Elizabeth Medical Center, Inc. v.
Hon. Patricia Summe, __ S.W.3d __, No. 2025-SC-0236-MR (Ky. Jun. 25, 2026)
and interested parties should read the companion case first to fully understand
our disposition in this opinion. Both cases were consolidated for purposes of
appeal by the Court of Appeals and considered in one opinion in that court.
Whereas the companion case dealt with the scope of KRS 311.377(2) and
whether the Completed Application Materials are within it, this case presents a corollary question: whether the Appellants, specifically Dr. Davenport, can be
compelled by the trial court to request the Completed Application Materials
from Saint Elizabeth and then disclose said Materials to the Plaintiffs despite
Saint Elizabeth’s assertion of privilege. In other words, the Appellants’ claim is
derivative of Saint Elizabeth’s claimed privilege. If Saint Elizabeth does not
possess a privilege in the Completed Application Materials, then there is no
discernable harm in Dr. Davenport being compelled to disclose the Materials if
he is ordered so to do.
Because of our ruling in the companion case that the Completed
Application Materials are subject to the general privilege contained in KRS
311.377(2) but may be excepted from that privilege pursuant to KRS
311.377(3), and the trial court upon remand should conduct the proper
analysis to determine the applicability of the exception, we conclude the
Appellants in this case do not meet the prerequisites for a writ of prohibition at
this time.
Typically, a trial court’s order that would entail violation of a privilege
“satisfies both the requirement of no adequate remedy by appeal, ‘because
privileged information cannot be recalled once it has been disclosed,’ and the
substitute requirement in ‘special cases’ that the administration of justice
would suffer.” Collins v. Braden, 384 S.W.3d 154, 158 (Ky. 2012) (quoting St.
Luke Hosps., Inc. v. Kopowski, 160 S.W.3d 771, 775 (Ky. 2005)). In other
words, a potential violation of privilege presents a great and irreparable injury
2 under the normal second-class writ standard or would harm the
administration of justice so as to meet the special cases exception.
In this specific case, however, it should first be noted that Appellants
couch their own claim in ambiguity. Throughout their brief they assert their
own uncertainty as to whether the trial court did in fact order them to obtain
the Completed Application Materials from Saint Elizabeth and provide it in
discovery in spite of Saint Elizabeth’s asserted privilege. Speculative claims of
possible harm do not present adequate grounds for issuance of a writ. Caldwell
v. Chauvin, 464 S.W.3d 139, 159 (Ky. 2015) (“We decline to exercise our
discretion to issue a writ in this instance even though any ex parte disclosure
of protected health information would surely violate HIPAA. This injury is too
speculative to merit such an extraordinary remedy.”); see also Barnes v.
Goodman Christian, 626 S.W.3d 631, 638 (Ky. 2021). The proper procedure in
the trial court, given the uncertainty of the Appellants, was to file a motion for
clarification, put the issue squarely before it, and obtain a ruling.
Nonetheless, even taking the trial court’s order as sufficiently definite to
remove it from the realm of ambiguity, the Appellants’ claim rests on Saint
Elizabeth’s assertion of privilege pursuant to KRS 311.377(2). Grimes, the Real
Party in Interest, asserts Dr. Davenport could at any time request the
Completed Application Materials that he submitted to Saint Elizabeth, and
Saint Elizabeth’s own By-Laws would entitle him to them. Dr. Davenport has
so far refused to do this because Saint Elizabeth has asserted the Materials are
privileged as a record of a designated peer review function by a covered entity
3 pursuant to KRS 311.377(2). In the companion case, we agreed with Saint
Elizabeth’s interpretation of KRS 311.377(2), but also held KRS 311.377(3)
excepts from the privilege any materials or information otherwise
independently discoverable. We reaffirmed Leanheart v. Humana, Inc., that “the
placement of otherwise discoverable records and information in a peer review
file does not entitle them to the protection of KRS 311.377(2).” 933 S.W.2d 820,
821 (Ky. 1996). Although we issued the writ in the companion case, that was
because the trial court and Court of Appeals erroneously concluded KRS
311.377(2) did not apply to the Completed Application Materials. The proper
statutory analysis was not conducted. 1
Given our ruling in the companion case, we decline to address the
question presented in this case. That question is obviated by our resolution
that the trial court failed to conduct the proper statutory analysis, and upon
remand a new opportunity should be had for the trial court to determine if any
information in the Completed Application Materials is subject to the exception
contained in KRS 311.377(3). Should the trial court determine some or all of
Completed Application Materials are not subject to the exception (and
accordingly does not order Saint Elizabeth to disclose it) but orders the same
privileged information to be disclosed by the Appellants, then the question
ostensibly presented by this appeal would be ripe for adjudication. Until such
an eventuality arises, however, the Appellants’ claim is speculative.
1 The Court of Appeals’ interpretation of KRS 311.377(2) also governed its
resolution of the Appellants’ claim in this case, and upon that basis is erroneous. 4 The Court of Appeals is affirmed as to result only in declining to issue
the writ. This case is remanded to Kenton Circuit Court for further proceedings
consistent with this opinion.
All sitting. Lambert, C.J.; Bisig, Conley, Goodwine, Keller, and
Thompson, JJ., concur. Nickell, J., concurs in part and dissents in part by
separate opinion.
NICKELL, J., CONCURRING IN PART, DISSENTING IN PART: I agree with
the majority’s determination that the Court of Appeals properly denied the
requested writ. However, consistent with my dissenting position in the
companion appeal, Saint Elizabeth Medical Center, Inc. v. Hon. Patricia Summe,
__ S.W.3d __, No. 2025-SC-0236-MR (Ky. Jun. 25, 2026) (Nickell, J.,
dissenting), I maintain the Appellants’ failure to establish the existence of a
privilege justifies the denial of an extraordinary writ without recourse to further
proceedings on remand. Therefore, I respectfully concur in part and dissent in
part.
5 COUNSEL FOR APPELLANT:
Michael J. Enzweiler Ellen M. Houston Dressman Benzinger LaVelle PSC
COUNSEL FOR APPELLEE:
Hon. Patricia Summe
COUNSEL FOR REAL PARTIES IN INTEREST/ APPELLEES, RICKY AND KAREN GRIMES:
Kendra E. Samson Barton LLP
Philip N. Elbert Womble Bond Dickinson (US) LP
COUNSEL FOR REAL PARTY IN INTEREST/ APPELLEE, ANTHEM HEALTH PLANS OF KENTUCKY:
Zachary Holt Kolb Clare & Arnold PSC
COUNSEL FOR REAL PARTY IN INTEREST/ APPELLEE, SAINT ELIZABETH MEDICAL CENTER, INC.:
Ryan M. McLane Emma R. Gripshover Dressman Benzinger LaVelle PSC
COUNSEL FOR AMICUS CURIAE, KENTUCKY DEFENSE COUNSEL:
Alexander B. Clay Joseph A. Wright Thompson Miller & Simpson PLC