Youngs v. PeaceHealth

Fl LE
IN CLERKS OFFICE
llJIREME COURT, STATE OF WASHINGTON
/J!ct``-4
.,l
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
MARC YOUNGS,
Petitioner,
v.
PEACEHEAL TH, a Washington corporation NO. 87811-1
d/b/a PEACEHEALTH ST. JOSEPH
MEDICAL CENTER and d/b/a
PEACEHEALTH MEDICAL GROUP, and
UNKNOWN JOHN DOES,
ENBANC
Respondents.
Filed JAN 2 3 2014
AOLANI E. GLOVER, a single individual,
Respondent,
v.
THE STATE OF WASHINGTON d/b/a
'HARBORVIEW MEDICAL CENTER; and
LULU M. GIZA W, PA-C,
Petitioners.
Youngs v. Peacehealth, et al./Glover v. State, et al.
No. 87811-1
GORDON MCCLOUD, J.- The question presented in this case is whether
Loudon v. Mhyre, 110 Wash. 2d 675, 677, 756 P.2d 138 (1988), which prohibits
defense counsel in a personal injury case from communicating ex parte with the
plaintiff's nonparty treating physician, applies to such physicians when they are
employed by a defendant. Specifically, we are asked whether Loudon bars ex parte
communications between a physician and his or her employer's attorney where the
employer is a corporation and named defendant whose corporate attorney-client
privilege likely extends to the physician, at least as to certain subjects. To answer
this question, we must balance the values underlying the attorney-client privilege
against those underlying the physician-patient privilege.
The legislature codified the attorney-client privilege in RCW 5.60.060(2)(a).
"The attorney-client privilege 'is the oldest of the privileges for confidential
communications known to the common law.' Its aim is 'to encourage full and frank
communication between attorneys and their clients and thereby promote broader
public interests in the observance oflaw and administration of justice. "' 1 The United
States Supreme Court's decision in Upjohn Co. v. United States, 449 U.S. 383, 386,
1
United States v. Jicarilla Apache Nation,_ U.S._, 131 S. Ct. 2313,2320, 180
L. Ed. 2d 187 (2011) (citations omitted) (quoting Upjohn Co. v. United States, 449 U.S.
383, 389, 101 S. Ct. 677, 66 L. Ed. 2d 584 (1981)).
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390, 101 S. Ct. 677, 66 L. Ed. 2d 584 (1981) holds that the attorney-client privilege
extends to corporate clients. This remains the law today. 2
The legislature has also enacted a physician-patient privilege statute, RCW
5.60.060(4). That privilege aims to "protect[] the sanctity" of the doctor-patient
relationship; to recognize that the "'relationship between physician and patient is "a
fiduciary one of the highest degree ... involv[ing] every element of trust, confidence
and good faith"'[;] to surround patient-physician communications with a cloak of
confidentiality to promote proper treatment by facilitating full disclosure of
information"; and "to protect the patient from embarrassment or scandal which may
result from revelation of intimate details of medical treatment." 3 Loudon, barring ex
parte contacts, is designed in part to safeguard that privilege. As discussed below,
it survives the 1986 and 1987 amendments to the physician-patient privilege statute.
The physician-patient privilege and the bar on defense counsel's ex parte contacts
2
This court has cited Upjohn favorably on a number of occasions. See, e.g., Wright
v. Group Health Hasp., 103 Wash. 2d 192, 202, 691 P.2d 564 (1984) ("In enunciating a
flexible 'control group' test, the Upjohn Court was expanding the definition of 'clients' so
the laudable goals of the attorney-client privilege would be applicable to a greater number
of corporate employees."); Sherman v. State, 128 Wash. 2d 164, 190, 905 P.2d 355 (1995)
(citing Upjohn for the principle that corporate attorney-client privilege might shield certain
correspondence from discovery).
3
Smith v. Orthopedics Intern., Ltd., 170 Wash. 2d 659, 667, 244 P.3d 939 (2010)
(internal quotation marks omitted) (quoting Loudon, 110 Wash. 2d at 679 and Carson v. Fine,
123 Wash. 2d 206,213, 867 P.2d 610 (1994)).
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with a plaintiff-patient's nonparty treating physician thus also remain the law of our
state.
In these consolidated medical malpractice cases, the Upjohn case, which
defines the scope of the corporate attorney-client privilege, and the Loudon rule,
which creates procedures to protect the physician-patient privilege, conflict. On the
one hand, Upjohn would allow corporate counsel to have privileged (confidential
and private) discussions with corporate employees, including a plaintiffs nonparty
treating physician, to investigate claims and prepare for litigation. On the other
hand, Loudon would bar confidential discussions between defense counsel and the
plaintiffs nonparty treating physicians about the subject of the litigation-Loudon
would require that such preparation take place in the presence of opposing counsel.
This court must resolve that conflict.
We reject the suggestion (of plaintiffs and am1cus Washington State
Association for Justice Foundation (WSAJF)) that the test announced in Wright v.
Group Health Hospital, 103 Wash. 2d 192, 691 P.2d 564 (1984), resolves the conflict.
That test was designed to "prevent situations in which a represented party may be
taken advantage of by adverse counsel," id. at 197, not to protect the plaintiffs
physician-patient privilege or the corporation's attorney-client privilege. We also
reject the suggestion (of defendants and amicus Washington Defense Trial Lawyers)
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that Upjohn completely trumps Loudon. It does not. Upjohn decides which
corporate employees' communications with corporate counsel are protected by the
attorney-client privilege; it bases this decision on policy determinations about how
much confidentiality is needed to further the values upon which the attorney-client
privilege is based. Those values are certainly at play in this case-the corporate
defendant has a right to advice, counsel, and litigation expertise. Loudon decides
something different: the manner in which defense counsel may communicate with a
plaintiffs nonparty treating physicians, consistent with the physician-patient
privilege. Loudon bases this decision primarily on the policy concerns underlying
that privilege, that is, the need to protect patient confidentiality and foster the
fiduciary relationship between such physicians and their patients. Those concerns
are also at play in these cases-the plaintiff-patients who may have suffered injury
due the defendants' negligence should not be forced to suffer the additional injury
of a privacy invasion implicating the most intimate details about their bodies and
health.
To protect the values underlying both the physician-patient and the attorney-
client privileges, we adopt a modified version of the Upjohn test in this context.
Under this test, an attorney hired by a defendant health care provider to investigate
or litigate an alleged negligent event may conduct privileged ex parte
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communications with a plaintiff's nonparty treating physician only where the
communication meets the general prerequisites to application of the attorney-client
privilege, 4 the communication is with a physician who has direct knowledge of the
event or events triggering the litigation, and the communications concern the facts
of the alleged negligent incident.
As always, the attorney-client privilege protects the privileged
communications only-not the facts transmitted in those communications. Facts are
proper subjects of investigation and discovery, even if they are also the subject of
privileged communications. Wright, 103 Wash. 2d at 195 (citing Upjohn, 449 U.S. at
395-96). Hence, Wright still governs ex parte contacts between plaintiff's counsel
and the corporate-defendant's employees-even if they are the same physician-
employees who might have privileged conversations with corporate counsel.
FACTS
1. Youngs v. PeaceHealth
Plaintiff Marc Youngs was admitted to defendant PeaceHealth' s Bellingham,
Washington, facility, St. Joseph Hospital, for lung surgery in December 2008.
4
See generally Haines v. Liggett Group Inc., 975 F.2d 81, 90 (3d Cir. 1992) ("The
privilege extends to verbal statements, documents and tangible objects conveyed by both
individual and corporate clients to an attorney in confidence for the purpose of any legal
advice.").
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There, he developed sepsis resulting in the loss of both his legs below the knee and
both his hands above the wrist. He brought an action against PeaceHealth for
negligent postoperative care under the "Doctrine of Corporate Negligence," the
"Doctrine of Respondeat Superior," and the "Doctrine of Res Ipsa Loquitur"; and
"for failure to obtain an informed consent." Clerk's Papers (CP) at 214. In his
complaint, he identified Drs. Richard Leone and Donald Berry as physicians whose
conduct gave rise to his lawsuit, but he did not name those doctors as defendants.
Mr. Youngs did not object to ex parte contacts between PeaceHealth's defense
counsel and Drs. Leone or Berry. But he did object to defense counsel's ex parte
contacts with any other physician who treated him at St. Joseph, even though he had
responded to interrogatories in a manner that suggested he might bring claims
implicating several additional, unidentified physicians. Citing Loudon, Mr. Youngs
moved to prohibit "defense counsel from ex parte contact, directly or indirectly, with
any of plaintiff Marc Youngs' treating health care providers, with the exception of
Dr. Richard Leone, and Dr. Donald Berry." CP at 251. The trial court granted the
motion, and PeaceHealth moved to reconsider. The trial court then reversed, stating
that "counsel for PeaceHealth may have ex parte contact with PeaceHealth
employees who provided health care to plaintiffMarc Youngs." CP at 9.
2. Glover v. State of Washington d/b/a Harborview Medical Center
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Aolani Glover went to the Harborview Medical Center (Harborview)
emergency room on April 2, 2008, after developing chest pain that she said she had
never before experienced. Harborview is owned by defendant Washington State and
managed by the University of Washington (UW) medical system. Ms. Glover was
28 years old when she visited the Harborview emergency room on April 2 and was
apparently otherwise in good health. According to Ms. Glover, she was made to
wait about four hours for treatment. Once she was admitted for treatment, Ms.
Glover contends that she was "parked" on a gurney in the hallway, where she waited
another hour for a nurse to take her vital signs and perform blood work. Resp't's
Br. at 2. The blood work revealed elevated troponin levels, which indicate
myocardial infarction (heart attack). Ms. Glover contends that lab results showing
the elevated troponin levels were available when Lulu Gizaw, a physician's
assistant, first saw her. Mr. Gizaw nevertheless discharged Ms. Glover, telling her
that she was not having a cardiac event. Mr. Gizaw maintains that he had reviewed
another patient's blood work results, mistaking them for Ms. Glover's. When he
discovered his error, Mr. Gizaw tracked Ms. Glover down at Harborview's
outpatient pharmacy and requested that she return to the emergency department. She
returned, was reexamined, and was subsequently taken to Harborview's cardiac
catheterization room. There, doctors discovered that Ms. Glover had suffered a right
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No. 87811-1
coronary artery dissection. Ms. Glover contends that this condition, if untreated,
"causes myocardial infarction and can later cause sudden cardiac death." Resp't's
Br. at 4 n.3. Immediately after her arrival in the catheterization room, Ms. Glover
had several cardiac arrests.
Cardiac surgeons at Harborview tried to repair the damage to Ms. Glover's
artery using a stent but ultimately had to place a pacemaker and balloon pump. After
receiving the pacemaker and pump, Ms. Glover was transferred to the intensive care
unit, where she remained, unconscious, for three days. She was then transferred,
still unconscious and in critical condition, to UW Medical Center (UWMC), another
facility in the UW medical system, where surgeons placed a temporary ventricular
assist device. UWMC discharged Ms. Glover 17 days later, but she returned after
three weeks, complaining of more chest pains. At that point, UWMC doctors found
further dissection in her coronary arteries. Ms. Glover underwent a heart transplant
on June 27, 2008, at UWMC.
Ms. Glover alleges that the Harborview emergency staff was too slow to
recognize that she was suffering a cardiac event and that they therefore negligently
delayed her transfer to the catheterization room. She makes no allegations of
negligence concerning the care she received after Mr. Gizaw convinced her to return
to the emergency department for readmission.
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Initially, Ms. Glover asserted that Loudon, and its progeny, barred ex parte
communications between defense counsel and Ms. Glover's treating physicians at
Harborview outside the emergency department. Later, however, she indicated that
she did not object to defense counsel's ex parte contacts with "any of the
[Harborview] Emergency Department or Cardiology staff . . . involved in [Ms.
Glover's] care, so long as those individuals were not shown any records of her
subsequent care [at UWMC]." CP at 32. In response to Ms. Glover's motion, the
trial judge issued a protective order stating that "Defense Counsel and the
defendant's risk manager are prohibited from ex parte contact, directly or indirectly,
with any of Plaintiff Aolani Glover's treating physicians at University of
Washington Medical Center." CP at 170.
3. Procedure in Both Cases
In both cases, the trial court certified its order on ex parte contacts for
discretionary review. The Court of Appeals consolidated the cases and transferred
them here pursuant to RCW 2.06.030. We agreed that the cases present issues of
broad public import requiring prompt determination, and we granted review.
Defendant PeaceHealth argues that Loudon was superseded by amendments
to the patient privilege statute in 1986 and 1987; the amendments now make waiver
of the physician-patient privilege automatic "as to all physicians or conditions," 90
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days after a claimant files an action for personal injuries or wrongful death. LAws
OF 1987, ch. 212, § 1501; LAWS OF 1986, ch. 305, § 101; RCW 5.60.060(4)(b).
PeaceHealth contends that the physician-patient privilege is purely statutory, with
no basis in common law, so there is nothing left for Loudon to protect, postwaiver.
Both defendants claim that even if Loudon did survive the statutory amendments,
Loudon's protections still do not apply to the plaintiffs nonparty treating physician
when that physician is employed by the defendant health care provider. The
defendants reason that applying Loudon in that context would conflict with both the
attorney-client privilege and hospital regulatory statutes governing patient
confidentiality and health care quality improvement.
We hold that Loudon's bar on ex parte contacts survived the 1986 and 1987
amendments to Washington's physician-patient privilege statute, and that Loudon's
protections apply to nonparty treating physicians employed by a defendant hospital,
but that where the plaintiffs treating physician is employed by the defendant, the
Loudon rule is limited by the defendant organization's corporate attorney-client
privilege as summarized in the introduction and discussed more fully below. We
also hold that a trial court may not restrict communications between a hospital's
employees and quality improvement committee but that members of the committee
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must be screened from defense counsel m an action against the hospital for
negligence or medical malpractice.
ANALYSIS
1. Loudon surviVes the 1986/1987 amendments to the physician-patient
privilege statute
When the Loudon plaintiffs initiated their original action, Washington's
physician-patient privilege statute had no waiver provision. Nevertheless, personal
injury plaintiffs were still deemed to have "waived" the privilege at some point prior
to trial by filing suit. Under that statutory regime, trial courts determined on a case-
by-case basis when the plaintiff had waived the privilege by putting his or her
medical condition in issue. See Phipps v. Sasser, 74 Wash. 2d 439, 445 P.2d 624
(1968); Bond v. Indep. Order of Foresters, 69 Wash. 2d 879, 421 P.2d 351 (1966);
Randa v. Bear, 50 Wash. 2d 415,312 P.2d 640 (1957); McUne v. Fuqua, 42 Wash. 2d 65,
253 P.2d 632, 257 P.2d 636 (1953).
In 1986, our legislature amended the physician-patient privilege statute to
provide that "[w ]aiver of the physician-patient privilege for any one physician or
condition constitutes a waiver of the privilege as to all physicians or conditions,
subject to such limitations as a court may impose pursuant to court rules." LAWS OF
1986, ch. 305, § 101(4)(b). In 1987, the legislature further amended it, making
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waiver automatic 90 days after the filing of a claim for personal injury or wrongful
death. LAWS OF 1987, ch. 212, § 1501(1)(b). Defendant PeaceHealth argues that
these waiver amendments supersede the Loudon rule and thus deprive a personal
injury plaintiff of the privilege absolutely, 90 days after he or she files suit.
This argument fails. The 1986 and 1987 amendments did not create a new
waiver. Rather, they codified a judge-made waiver that was already well established
when Loudon was decided. 5
5
This court discussed the purpose of the amendments in Carson v. Fine, 123 Wash. 2d
206, 213-14, 867 P.2d 610 (1994), where it explained that they did little to change
preexisting judge-made rules regarding waiver of the patient privilege. The 1986
amendment codified a rule that prevented physician witness-shopping, while the 1987
amendment did away with the case-by-case waiver analysis, instituting the blanket 90-day
waiver rule:
A patient who could select among various physicians' opinions, and claim
privilege as to the remainder, would make a mockery of justice. [State v.]
Tradewell, 9 Wn. App. [821, 824, 515 P.2d 172 (1973)]; see also State v.
Brewton, 49 Wash. App. 589, 591, 744 P.2d 646 (1987) .... This conclusion
is now expressly set forth in [the 1986 amendment] ... .
Jd. at 214.
The [1987] amendment is a codification of existing Washington case law
which holds that waiver occurs even without plaintiffs express consent.
Specifically, this court has held that the introduction by the patient of medical
testimony describing the treatment and diagnosis of an illness waives the
privilege as to that illness, and the patient's own testimony to such matters
has the same effect.
Id. at 213.
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Indeed, the Loudon court devoted a significant portion of its analysis to that
judge-made waiver rule. Its analysis makes clear that a waiver of the patient
privilege triggers, rather than cancels, the Loudon protections:
A patient may waive [the physician-patient] privilege by putting his or
her physical condition in issue. See Randa v. Bear, 50 Wash. 2d 415, 312
P.2d 640 (1957); Phipps v. Sasser, 74 Wash. 2d 439,445 P.2d 624 (1968).
Waiver is not absolute, however, but is limited to medical information
relevant to the litigation. See CR 26(b )(1 ).
The danger of an ex parte interview is that it may result in
disclosure of irrelevant, privileged medical information. . . . The
plaintiffs interest in avoiding such disclosure can best be protected by
allowing plaintiffs counsel an opportunity to participate in physician
interviews and raise appropriate objections.
Loudon, 110 Wash. 2d at 677-78 (emphasis added) (footnote omitted). By protecting
against the disclosure of information irrelevant to the litigation, the Loudon rule
furthers a primary purpose of the patient privilege statute-protecting patient
confidentiality-even though the plaintiff has waived the absolute privilege from
discovery about relevant matters. As this court put it in a postamendment case,
"Loudon ... held that a plaintiff-patient's waiver of the physician-patient privilege
does not authorize ex parte communications between the defendant and the
plaintiffs treating physicians." Carson v. Fine, 123 Wash. 2d 206, 210-11, 867 P.2d
610 (1994) (emphasis added). That rule remains as valid today, now that such
waiver is codified by statute, as it was when Loudon was decided.
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The existence of preamendment waiver is sufficient by itself to show that
Loudon remains good law. But it should also be noted that Loudon rests on more
than just the patient's confidentiality interest. In addition to furthering that interest,
the Loudon rule serves three distinct functions. First, it protects the doctor-patient
fiduciary relationship:
The relationship between physician and patient is a "fiduciary one of
the highest degree ... involv[ing] every element of trust, confidence,
and good faith." Lockett v. Goodill, 71 Wash. 2d 654, 656, 430 P.2d 589
(1967) .... "[W]e find it difficult to believe that a physician can engage
in ex parte conference with the legal adversary of his patient without
endangering the trust and faith invested in him by his patient."
Loudon, 110 Wash. 2d at 679 (alterations in original) (footnote omitted) (citing Petrillo
v. Syntex Labs., Inc., 148 Ill. App. 3d 581, 595, 499 N.E.2d 952, 102 Ill. Dec. 172
(1986)). Second, it protects the physician's "interest in avoiding inadvertent
wrongful disclosures," which the court "recognize[ d], without deciding," might
trigger the physician's liability to the patient. Id. at 680. Finally, it aids in proper
trial administration, preventing the occasion from arising where defense counsel
might be called to testify as an impeachment witness. Id. 6
6
Three years ago, in Smith v. Orthopedics International, Ltd., 170 Wash. 2d 659, 666-
67, 244 P.3d 939 (2010), this court reaffirmed all of Loudon's policy holdings and also
emphasized the special problems that ex parte contacts pose in personal injury and medical
malpractice cases. Citing reasoning in cases from other jurisdictions, the Smith court noted
that in personal injury cases, ex parte contacts might provide defense counsel the
opportunity to surprise the plaintiff with information furnished by his treating physician,
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In sum, Loudon clearly establishes a patient-plaintiffs right to supervise his
nonparty physician's communications with opposing counsel. Loudon was a
unanimous decision, which has remained in force for 25 years, and will not be
abandoned absent "a clear showing that [it] is incorrect and harmful." In re Rights
to Waters of Stranger Creek, 77 Wash. 2d 649, 653, 466 P.2d 508 (1970). No such
showing has been made here. Amendments to the patient privilege statute have not
diminished Loudon's relevance; it remains binding precedent.
2. The Upjohn privilege survives Loudon, but we limit and clarify the scope
of that corporate attorney-client privilege in the Loudon context
The defendants contend that the corporate attorney-client privilege guarantees
their right to communicate ex parte with any of their employees, regardless of the
Loudon rule. For the reasons given below, we reject the defendants' application of
the corporate attorney-client privilege in this context but hold that Loudon must yield
where it would infringe on the privilege as properly construed.
while in medical malpractice cases they might draw the nonparty physician into discussions
about the overall merit of malpractice suits. Smith, 170 Wash. 2d 669 n.2. (citing Law v.
Zuckerman, 307 F. Supp. 2d 705, 711 (D. Md. 2004); Manion v. N.P. W Med. Ctr. ofN.E.
Pa., Inc., 676 F. Supp. 585, 594-95 (M.D. Pa.1987)). While there were three opinions in
Smith, the court was unanimous that the Loudon rule barred not only ex parte interviews
with a plaintiff's nonparty physician, but also any ex parte "contacts" with that physician
whatsoever. ld. at 670.
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In Upjohn, 449 U.S. at 386, the United States Supreme Court held that
corporations, like individuals, enjoy the protections of the attorney-client privilege.
It also discussed the privilege's scope. !d. at 391-97. It overruled prior precedent
limiting the privilege to counsel's communications with the corporate "control
group"-upper-level management-and held that the privilege can extend to
communications with certain other employees as well. !d.
The defendants maintain that Upjohn recognized a blanket privilege for
communications between corporate counsel and corporate employees at all levels,
regardless of a given employee's relationship to potential corporate liability. This
perspective-which in the era of rapidly consolidating healthcare systems would all
but eviscerate Loudon-reads too much into the Upjohn decision. Upjohn does not
say that every corporate employee is necessarily a "party" to a lawsuit naming the
employee's corporate employer. Cf Wright, 103 Wash. 2d at 202 ("A corporate
employee who is a 'client' under the attorney-client privilege is not necessarily a
'party' for [other] purposes .... "). Nor does it say that every employee is corporate
counsel's "client." The question in Upjohn was whether attorney-client privilege
could ever apply to corporate counsel's communications with nonmanagerial
employees. Upjohn, 449 U.S. at 389. The Court said the answer is yes, largely
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because "protect[ion] against compelled disclosure ... [was c]onsistent with the
underlying purposes of the attorney-client privilege." Id. at 395.
The Upjohn Court also explained these purposes; it stated that the attorney-
client privilege "'facilitates the full development of facts essential to proper
representation of the client [and] . . . encourages laymen to seek early legal
assistance."' I d. at 391 (quoting MODEL CODE OF PROF'L RESPONSIBILITY EC 4-1 ).
The Court determined that to serve these purposes effectively in a corporate context,
the attorney-client privilege could not be limited to corporate counsel's
communications with high-level employees. If the privilege were so limited, the
Court reasoned, counsel would face a "'Hobson's choice"' between engaging in
potentially incriminating communications with low-level employees, on the one
hand, and foregoing access to the information those employees might provide, on
the other. I d. (citing Diversified Indus., Inc. v. Meredith, 572 F .2d 596, 608 (8th Cir.
1978)). The Court noted that in the context of corporate liability, low- and mid-level
employees might well be the only source of information relevant to legal advice,
since they can, "by actions within the scope of their employment, embroil the
corporation in serious legal difficulties." Id. Without talking to these employees,
the Court reasoned, corporate counsel "may find it extremely difficult, if not
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impossible, to determine what happened" to trigger potential corporate liability. Id.
at 392 (quoting Diversified Indus., 572 F.2d at 608-09).
We adopt this reasoning from Upjohn. In previous cases, this court has
endorsed Upjohn's "flexible ... test," praising it for furthering the "laudable goals
of the attorney-client privilege." Wright, 103 Wash. 2d at 201-02; see also Sherman v.
State, 128 Wash. 2d 164, 190,905 P.2d 355 (1995) (citing Upjohn for the principle that
"correspondence between an attorney for a corporate entity and that entity's
employees [may be] subject to the attorney-client privilege of the corporate entity").
In this case, however, Upjohn and Loudon conflict. Loudon and Upjohn do
address different types of communication-the Upjohn plaintiffs sought access to
records of past communications, while the Loudon plaintiffs sought to supervise
future interviews-but both cases implicate the same fundamental questions of
attorney-client privilege. The privilege established in Upjohn, protecting certain
communications from after-the-fact discovery, implies a corresponding privilege
from contemporaneous supervision by opposing counsel. Therefore, certain ex parte
communications between a hospital's corporate defense counsel and hospital
employees may be protected by Upjohn but barred by Loudon. Indeed, depriving
counsel of the ability to communicate confidentially with a client damages the
privilege just as much as disclosing a prior communication does. Cf Geders v.
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United States, 425 U.S. 80, 88-91, 96 S. Ct. 1330,47 L. Ed. 2d 592 (1976) (barring
communications between defense counsel and criminal defendant during overnight
trial recess violates Sixth Amendment right to counsel).
We rely upon Upjohn's reasoning to resolve this conflict. The attorney-client
privilege is "'the oldest of the privileges for confidential communications known to
the common law,"' and it '"promote[s] broad[] public interests in the observance of
law and administration of justice."' United States v. Jicarilla Apache Nation, _
U.S._, 131 S. Ct. 2313, 2320, 180 L. Ed. 2d 187 (2011) (quoting Upjohn, 449
U.S. at 389). In keeping with those interests, the Upjohn Court rejected the narrow
"control group" test for corporate attorney-client privilege because that test "makes
it difficult for corporate attorneys to formulate sound advice ... [and] threatens to
limit the valuable efforts of corporate counsel to ensure their client's compliance
with the law." Upjohn, 449 U.S. at 392.
But the Upjohn Court did not articulate a fixed set of criteria by which to
determine what specific conversations with lower-level employees must remain
privileged in order to protect those values. Although the Court identified specific
factors as relevant to its decision in that case/ it expressly "decline[d] to lay down a
7In finding the communications at issue in Upjohn to be privileged, the Court noted
that (1) they were made at the direction of corporate superiors, (2) they were made by
corporate employees, (3) they were made to corporate counsel acting as such, (4) they
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broad rule ... to govern all conceivable future questions [of corporate attorney-client
privilege]." Id. at 386, 394. Still, Upjohn's reasoning implies a limiting principle.
This principle follows from Upjohn's central policy concern, which is to facilitate
frank communication about alleged wrongdoing. The Upjohn Court sought to
protect counsel's ability to "ascertain the factual background" of a "legal problem,"
and it rejected the narrow "control group" test because that test would frustrate the
lawyer's investigative abilities. Id. at 390 ("[The control group test] overlooks the
fact that the privilege exists to protect not only the giving of professional advice to
those who can act on it, but also the giving of information to the lawyer to enable
him to give sound and informed advice." (emphasis added)). In keeping with these
goals, we hold that the corporate attorney-client privilege tn1mps the Loudon rule
where an ex parte interview enables corporate counsel '"to determine what
happened"' to trigger the litigation. Upjohn, 449 U.S. at 392 (internal quotation
marks omitted) (quoting Diversified Indus., 527 F.2d at 608-09). Under this rule,
corporate defense counsel may have privileged ex parte communications with a
concerned matters within the scope of the employee's duties, (5) they revealed factual
information "not available from upper-echelon management," (6) they revealed factual
information necessary "to supply a basis for legal advice," (7) the communicating
employee was sufficiently aware that he was being interviewed for legal purposes, and (8)
the communicating employee was sufficiently aware that the information would be kept
confidential. Upjohn, 449 U.S. at 394.
21
Youngs v. Peacehealth, et al./Glover v. State, et al.
No. 87811-1
plaintiffs nonparty treating physician only where the communication meets the
general prerequisites to application of the attorney-client privilege, 8 the
communication is with a physician who has direct knowledge of the event or events
triggering the litigation, and the communications concern the facts of the alleged
negligent incident. The Loudon rule still bars ex parte interviews as to information
about prior and subsequent treatment (i.e., information about the plaintiffs
particular vulnerabilities or the nature of the plaintiffs recovery or disabilities). This
rule strikes the proper balance between the attorney-client and physician-patient
privileges, limiting Loudon's prophylactic protections to the extent necessary to
protect a corporate defendant's right to fully investigate its potential liability.
Finally, in concluding our discussion of the conflict between Loudon and
Upjohn, we make two points. First, we reiterate that the attorney-client privilege
protects communications, but not the facts underlying those communications.
Wright, 103 Wash. 2d at 195 (citing Upjohn, 449 U.S. at 395-96). Second, we
acknowledge that the communications actually at issue in Upjohn were written
questionnaires and thus distinguishable from ex parte interviews in certain respects.
But, in the context of the Loudon rule, this court has refused to distinguish between
8 See supra note 4.
22
Youngs v. Peacehealth, et al./Glover v. State, et al.
No. 87811-1
limited, written communications and unlimited ex parte interviews. Smith v.
Orthopedics Intern., Ltd., 170 Wash. 2d 659, 665-70, 224 P.3d 939 (20 10).
·Rehabilitating that distinction here would erode rather than strengthen the Loudon
rule, and the limit it would impose on a hospital's attorney-client privilege 1s
unrelated to any of the policy concerns articulated in Upjohn.
3. Hospital Regulatory Law
The defendants also argue that hospital regulatory statutes give them the right
to communicate ex parte with any of their employees at any time. They cite
Washington's Uniform Health Care Information Act (UHCIA), chapter 70.02 RCW,
and Washington's hospital quality improvement (QI) statute, RCW 70.41.200. 9 The
UHCIA authorizes the disclosure of confidential patient information "to the extent
a recipient needs to know the information, if the disclosure is ... to [a] person who
requires [the] information ... to provide ... quality assurance ... or ... legal ...
services to ... the health care provider or health care facility . . . . " RCW
9 The defendants also cite the federal Health Insurance Portability and
Accountability Act of 1996 (HIPAA), which allows disclosure of confidential health care
information under certain circumstances. In general, HIP AA supersedes contrary state law,
but it does not do so where "the provision of State law . . . relates to the privacy of
individually identifiable health information." 42 U.S.C. § 1320d-7(a)(2)(B). HIPAA
cannot authorize disclosures prohibited under Washington law. Therefore, to determine
whether Loudon applies to the cases at hand, we need not consider arguments related to
HIPAA.
23
Youngs v. Peacehealth, et al./Glover v. State, et al.
No. 87811-1
70.02.050(1 )(b ). 10 The QI statute reqmres that hospitals collect information
concermng their patients' "negative health care outcomes" and protects this
information from civil discovery. RCW 70.41.200(1)(e), (3). 11 The defendants
10The full text of RCW 70.02.050(1)(b) authorizes disclosures of confidential
medical information:
To any other person who requires health care information for health care
education, or to provide planning, quality assurance peer review, or
administrative, legal, financial, actuarial services to, or other health care
operations for or on behalf of the health care provider or health care facility;
or for assisting the health care provider or health care facility in the delivery
of health care and the health care provider reasonably believes that the
person:
(i) Will not use or disclose the health care information for any other
purpose; and
(ii) Will take appropriate steps to protect the health care information.
11 The full text ofRCW 70.41.200(1) provides:
Every hospital shall maintain a coordinated quality improvement program
for the improvement of the quality of health care services rendered to patients
and the identification and prevention of medical malpractice. The program
shall include at least the following:
(e) The maintenance and continuous collection of information
concerning the hospital's experience with negative health care outcomes and
incidents injurious to patients including health care-associated infections as
defined in RCW 43.70.056, patient grievances, professional liability
premiums, settlements, awards, costs incurred by the hospital for patient
injury prevention, and safety improvement activities.
RCW 70.41.200(3) provides:
24
Youngs v. Peacehealth, et al./Glover v. State, eta!.
No. 87811-1
argue that both statutes preclude the application of the Loudon rule to a defendant
hospital's employees.
With respect to the QI regime, the defendants cite Burger v. Lutheran General
Hospital, 198 Ill. 2d 21, 759 N.E.2d 533, 259 Ill. Dec. 753 (2001), a case in which
the Illinois Supreme Court upheld a hospital licensing statute authorizing unlimited
intrahospital communications, in contravention of Illinois's Loudon-equivalent, the
Information and documents, including complaints and incident reports,
created specifically for, and collected and maintained by, a quality
improvement committee are not subject to review or disclosure, except as
provided in this section, or discovery or introduction into evidence in any
civil action, and no person who was in attendance at a meeting of such
committee or who participated in the creation, collection, or maintenance of
information or documents specifically for the committee shall be permitted
or required to testify in any civil action as to the content of such proceedings
or the documents and information prepared specifically for the committee.
This subsection does not preclude: (a) in any civil action, the discovery of
the identity of persons involved in the medical care that is the basis of the
civil action whose involvement was independent of any quality improvement
activity; (b) in any civil action, the testimony of any person concerning the
facts which form the basis for the institution of such proceedings of which
the person had personal knowledge acquired independently of such
proceedings; (c) in any civil action by a health care provider regarding the
restriction or revocation of that individual's clinical or staff privileges,
introduction into evidence [of] information collected and maintained by
quality improvement committees regarding such health care provider; (d) in
any civil action, disclosure of the fact that staff privileges were terminated or
restricted, including the specific restrictions imposed, if any and the reasons
for the restrictions; or (e) in any civil action, discovery and introduction into
evidence of the patient's medical records required by regulation of the
department of health to be made regarding the care and treatment received.
25
Youngs v. Peacehealth, et al./Glover v. State, et al.
No. 87811-1
Petrillo doctrine. The statute at issue in Burger permitted communication '"at any
time and in any fashion,"' between a hospital's medical staff and legal counsel
'"concerning ... any care or treatment they provided or assisted in providing to any
patient within the scope of their employment or affiliation with the hospital."'
Burger, 198 Ill. 2d at 26 (quoting 210 ILL. COMP. STAT. 85/6.17(e)). 12 The Illinois
Supreme Court concluded that subordinating the licensing statute to the Petrillo
doctrine "would lead to absurd results":
12The full text of the provisions alleged to violate patient privacy under the Petrillo
doctrine states:
"(d) No member of a hospital's medical staff and no agent or employee of a
hospital shall disclose the nature or details of services provided to patients,
except that the information may be disclosed to the patient, persons
authorized by the patient, the party making treatment decisions, if the patient
is incapable of making decisions regarding the health services provided,
those parties directly involved with providing treatment to the patient or
processing the payment for that treatment, those parties responsible for peer
review, utilization review, quality assurance, risk management or defense of
claims brought against the hospital arising out of the care, and those parties
required to be notified under the Abused and Neglected Child Reporting Act,
the Illinois Sexually Transmissible Disease Control Act, or where otherwise
authorized or required by law."
"(e) The hospital's medical staff members and the hospital's agents and
employees may communicate, at any time and in any fashion, with legal
counsel for the hospital concerning the patient medical record privacy and
retention requirements of this section and any care or treatment they provided
or assisted in providing to any patient within the scope of their employment
or affiliation with the hospital."
Burger, 198 Ill. 2d at 26 (quoting 210 ILL. COMP. STAT. 85/6.17 (West 2000)).
26
Youngs v. Peacehealth, et al./Glover v. State, eta!.
No. 87811-1
[I]f Petrillo prevented the limited intrahospital communications
authorized by subsections (d) and (e) of section 6.17 of the Act,
hospitals would face the dilemma of having to choose between ceasing
to communicate with all hospital caregivers with respect to a hospital
patient's treatment, communicating only with those caregivers the
hospital assumes were not negligent and risk a subsequent Petrillo
violation if the hospital's assumption was incorrect, or deposing all of
the patient's hospital caregivers. Further, if we were to accept
plaintiffs view, hospitals, which are statutorily obligated to create,
maintain and protect private medical records, would be forced to
subpoena their own records in the event of litigation.
Burger, 198 Ill. 2d at 58-59.
We do not accept defendants' invitation to adopt the reasoning in Burger.
Washington's QI statute does not contain the Illinois statute's strong language,
permitting hospital employees to communicate "'at any time and in any fashion"'
with hospital counsel. ld. at 26 (quoting 210 ILL. COMP. STAT. 85/6.17(e)). Thus, to
the extent that Burger simply interprets a statute, it is not directly relevant here. To
the extent the defendants argue that Loudon is unworkable in the context of their QI
obligations, this case is not the proper venue in which to address that policy
argument. The plaintiffs and amicus WSAJF contend that litigation defense counsel
can be screened from the QI committee and the record does not contain any
information suggesting that such screening is unworkable. On the contrary, the
Loudon rule and the QI regime have coexisted, apparently successfully, for over 25
years.
27
Youngs v. Peacehealth, et al./Glover v. State, et al.
No. 87811-1
The QI statute precludes restrictions on communications between a hospital's
QI committee and its physicians, but the committee members can be screened from
defense counsel in a malpractice action. Such screening will preserve Loudon's
protections for patient-plaintiffs, while also allowing hospitals to meet statutory
requirements for quality improvement. This screening preserves the integrity of the
QI process, allowing the QI committee to meet its statutory requirement to collect
and maintain information "specifically for" QI purposes. See WSAJF Br. at 24-25.
With respect to the UHCIA, the defendants' argument can be summed up as
follows: the statute allows physicians and hospitals to disclose patients' confidential
medical information where necessary to obtain legal services; when a hospital is
sued for the conduct of one of its employees, it needs to be able to get information
from any of its employees, in order to properly prepare for litigation (i.e., to obtain
"legal services" under RCW 70.02.050(1 )(b)). The plaintiffs counter that there is no
conflict between the UHCIA and Loudon, because a hospital can obtain "legal
services" without violating the physician-patient privilege. We agree: that is
precisely what the Loudon rule was designed to facilitate.
The defendants cite cases from Arizona and Florida, where courts have held
that a hospital's employer status trumps those states' Loudon-equivalents. Florida's
District Court of Appeal found that intrahospital communications were not
28
Youngs v. Peacehealth, et al./Glover v. State, et al.
No. 87811-1
"disclosures" for purposes of the state's patient privilege statute. Estate of Stephens
ex rel. Clark v. Galen Health Care Inc., 911 So. 2d 277, 282 (Fla. Dist. Ct. App.
2005). An Arizona appellate court reasoned that a hospital's right to engage in ex
parte communications with its own employees "exists because the employment
relationship exists" and could not be diminished by the filing of a lawsuit. Phoenix
Children's Hosp., Inc. v. Grant, 228 Ariz. 235, 239, 265 P.3d 417 (Ct. App. 2011).
Neither the Florida nor the Arizona authority is persuasive. Both courts
essentially concluded that corporate employers have a right to communicate ex parte
with their employees, simply by virtue of the employer-employee relationship. The
Arizona court derived that holding from the '"well established rule in the law of
agency that a corporation is bound by the knowledge acquired by ... its agents or
officers which is within the scope of their authority and ... in reference to a matter
to which their authority extends."' Grant, 228 Ariz. at 239 (quoting Fridena v.
Evans, 127 Ariz. 516, 519, 622 P.2d 463 (1980) and citing Samaritan Found. v.
Goodfarb, 176 Ariz. 497, 503, 862 P.2d 870 (1993)). Similarly, the Florida court
reasoned that a hospital must
be[] able to speak to its agents and employees ... because the hospital
. . . can function only through its employees and agents, and its
"knowledge" of information like how its standards for nurse training
and patient care are being carried out depends solely on information
acquired and reported by its agents and employees.
29
Youngs v. Peacehealth, et al./Glover v. State, et al.
No. 87811-1
Clark, 911 So. 2d at 281. Neither a principle of imputed knowledge, nor the self-
evident fact that corporations consist of people, should affect the application of a
Loudon-type rule. Loudon does not prohibit the acquisition of knowledge; it merely
imposes procedural safeguards to prevent improper influence or disclosures.
Moreover, at the conclusion of its opinion, the Arizona court hypothesized some
limits on a corporate defendant's right to communicate ex parte with its employees,
which were not at issue in the case before it. These included court-imposed rules to
prevent the disclosure of irrelevant privileged information or to block
communications with "different employees or departments of a hospital .... " Grant,
228 Ariz. at 240. Such limits are among those that our modified Loudon rule
imposes on the defendants here.
CONCLUSION
Loudon survives the amendments to the patient privilege statute. It remains
good law, and it applies where the defendant employs the plaintiffs nonparty
treating physician. If Loudon conflicts with a defendant's corporate attorney-client
privilege, however, it must yield to that privilege. This means that an attorney hired
by a corporate defendant to investigate or litigate an alleged negligent event may
engage in privileged (ex parte) communications with the corporation's physician-
30
Youngs v. Peacehealth, et al./Glover v. State, et al.
No. 87811-1
employee where the physician-employee has firsthand knowledge of the alleged
negligent event and where the communications are limited to the facts of the alleged
negligent event. We emphasize that "the facts of the alleged negligent incident" do
not encompass health care that was provided before or after the event triggering the
litigation, such as care for preexisting conditions or postevent recovery. This is true
even where such care bears on the issue of damages.
We remand these cases to the trial courts for further proceedings consistent
with this opinion. Because the trial courts' orders differed from one another in key
respects, we address each order separately.
In Ms. Glover's case, the trial court issued a protective order stating that
"Defense Counsel and the defendant's risk manager are prohibited from ex parte
contact, directly or indirectly, with any of Plaintiff Aolani Glover's treating
physicians at University of Washington Medical Center." CP at 170. We affirm the
portion of the trial court's order prohibiting defense counsel from having ex parte
contact with Ms. Glover's treating UWMC physicians. Because these physicians
were not present when the alleged negligent incident occurred at Harborview, they
are covered by the Loudon rule. We reverse that portion of the trial court's order
barring the risk manager from having ex parte contact with UWMC physicians, and
31
Youngs v. Peacehealth, et al./Glover v. State, et al.
No. 87811-1
we remand the trial court to require that the risk manager be screened from the
defense in this case.
In Mr. Youngs' case, the trial court ruled that "counsel for PeaceHealth may
have ex parte contact with PeaceHealth employees who provided health care to
plaintiff Marc Youngs." CP at 9. We affirm the portion of the trial court's order
permitting defense counsel's ex parte communications with Mr. Youngs' nonparty
treating physicians, but only as to those physicians who have firsthand knowledge
of the alleged negligent incident and only as to communications about the facts of
that incident. We reverse the portion of that order permitting ex parte
communications with Mr. Youngs' other nonparty treating physicians (those lacking
firsthand knowledge of the alleged negligent incident) and with any of Mr. Youngs'
nonparty treating physicians on topics other than the facts of the alleged negligent
incident.
32
Youngs v. Peacehealth, et al./Glover v. State, et al.
No. 87811-1
WE CONCUR:
33
Youngs v. PeaceHealth, et al.; Glover v. State, et al.
No. 87811-1
STEPHENS, J. (concurring in part/dissenting in part)-The majority fashions
a new rule that allows "an attorney hired by a corporate defendant to investigate or
litigate an alleged negligent event [to] engage in privileged (ex parte)
communications with the corporation's physician-employee where the physician-
employee has firsthand knowledge of the alleged negligent event and where the
communications are limited to the facts of the alleged negligent event." Majority at
30-31. This rule is wholly unworkable. Moreover, it erodes the sound policy
decision made by this court in Loudon v. Mhyre, 110 Wash. 2d 675, 756 P.2d 138
(1988), without justification rooted in either the employer-employee relationship or
the attorney-client privilege.
I would hew to our decision in Loudon, recognizing that the risks we were
concerned with there exist equally in the context of a medical malpractice action
against a corporate defendant. The majority properly recognizes that the Loudon
Youngs v. PeaceHealth, eta!.; Glover v. State, eta!., 87811-1
(Stephens, J. Concurrence/Dissent)
rule is unaffected by changes in the statutory physician-patient privilege, RCW
5.60.060(4)(b), and coexists with Washington's Uniform Health Care Information
Act (UHCIA), chapter 70.02 RCW, and Washington's hospital quality improvement
statute (QI statute), RCW 70.41.200. 1 Majority at 13, 27-28. It goes astray,
however, by seizing on Upjohn Co. v. United States, 449 U.S. 383, 101 S. Ct. 677,
66 L. Ed. 2d 584 (1981 ), as requiring allowance for ex parte contact between
corporate defense counsel and the plaintiffs nonparty treating physicians employed
by the corporation. For the reasons explained below, I concur in part and dissent in
part from the majority's resolution of these cases.
DISCUSSION
This court in Loudon adopted a bright-line rule prohibiting defense counsel
from engaging in ex parte contact with the plaintiffs nonparty treating physicians.
110 Wash. 2d at 682; Smith v. Orthopedics Int'l, Ltd., 170 Wash. 2d 659, 670, 244 P.3d
939 (2010) (lead opinion). As the majority recognizes, this rule serves several
important goals: it safeguards the plaintiffs confidentiality interest in not having
irrelevant personal health care information disclosed; it protects the physician-
patient fiduciary relationship and serves the physician's interest in avoiding
inadvertent disclosures that might give rise to liability to the patient; and it serves
the administration of justice, avoiding the risk that defense counsel may become an
impeachment witness. Majority at 14-15. In the context of medical malpractice
1
I also agree with the majority that the federal Health Insurance Portability and
Accountability Act of 1996 has no bearing on this case. Majority at 23 n.9.
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Youngs v. PeaceHealth, et al.; Glover v. State, et al., 87811-1
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litigation, the Loudon rule is particularly important to avoid the risk that the
plaintiffs health care providers might be unduly "shaped and influenced by" ex parte
contact or "improperly assume a role akin to that of an expert witness for the
defense." Smith, 170 Wash. 2d at 668 (lead opinion). Discussing these risks, the lead
opinion in Smith quoted favorably from State ex rel. Woytus v. Ryan, 776 S.W.2d
389, 395 (Mo. 1989), "acknowledging that ex parte contact in medical malpractice
cases between defense counsel and a nonparty treating physician creates risks that
are not generally present in other types of personal injury litigation, including the
risk of discussing "'the impact of a jury's award upon a physician's professional
reputation, the rising cost of malpractice insurance premiums, [a~d] the notion that
the treating physician might be the next person to be sued,"' among others." 170
Wash. 2d at 669 n.2 (lead opinion) (alteration in original) (internal quotation marks
omitted).
Tracing the history of Washington's rule since Loudon, the majority correctly
rejects the argument that the prohibition on ex parte contact rests on the physician-
patient privilege and is thus no longer good law after statutory amendments to the
privilege created a blanket waiver. Majority at 12-14; see Smith, 170 Wash. 2d at 665
(lead opinion), 674 (Fairhurst, J., concurring). This was clear from the instant the
issue was stated in Loudon. 110 Wash. 2d at 675-76 ("The issue presented is whether
defense counsel in a personal injury action may communicate ex parte with the
plaintiffs treating physicians when the plaintiff has waived the physician-patient
privilege." (emphasis added)).
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Youngs v. PeaceHealth, et al.; Glover v. State, et al., 87811-1
(Stephens, J. Concurrence/Dissent)
The majority also correctly rejects the argument that the Loudon rule is
incompatible with statutes governing disclosure of personal health care information
and protecting information gathered during internal quality improvement reviews.
Neither the UHCIA nor the QI statute erodes the policy of Loudon. As the majority
observes, "the Loudon rule and the QI regime have coexisted, apparently
successfully, for over 25 years." Majority at 27. It is certainly possible to segregate
litigation activity and quality improvement activity. Indeed, our recent decision in
Lowy v. PeaceHealth, 174 Wash. 2d 769, 778, 280 P.3d 1078 (2012), underscores that
the quality improvement statutes are not to be used as a shield to alter the balance of
interests of either party in litigation.
While the majority recognizes the wisdom and continued vitality of the
Loudon rule as against these arguments, it loses its way, in my view, when it posits
a clash between the Loudon rule and the attorney-client privilege. The majority
maintains that a "modified version of the Upjohn test" is needed in the context of
corporate medicine to balance the values underlying the physician-patient privilege
and the attorney-client privilege. Majority at 5. Thus, it crafts a rule that turns a
case about a corporate defendant's right to shield from disclosure internal employee
questionnaires (Upjohn) into an entitlement to interview, ex parte, an opposing
party's treating physician. Ironically, it allows ex parte contact only as to facts
concerning "the alleged negligent event," id. at 31, which are equally available to
both parties. How this rule will play out in practice is hard to describe. Apparently,
both defense counsel and plaintiffs counsel can interview the employee physician
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Youngs v. PeaceHealth, et al.; Glover v. State, et al., 87811-1
(Stephens, J. Concurrence/Dissent)
ex parte, since the majority would recognize that Wright v. Group Health Hospital,
103 Wash. 2d 192, 691 P.2d 564 (1984), governs plaintiffs counsel's contact with the
physician. Majority at 6. But, the corporate defendant can claim attorney-client
privilege as to what the plaintiffs physician tells defense counsel, so the physician
cannot relate to the patient what has been disclosed to a litigation adversary about
the patient's health care. Moreover, the employer's right to interview the employee
seems to be unaffected by whether the employee physician shares the attorney-client
relationship between the employer and its counsel.
This last point is critical. Though the majority acknowledges that a corporate
employee is not necessarily a party or even corporate counsel's client, see id. at 17,
it ultimately concludes Loudon must yield to Upjohn because the protection of
privileged communications implies a "corresponding privilege" to conduct ex parte
communications. Id. at 19. For support, the majority cites only a criminal case
involving a traditional attorney-client relationship, which is quite different from
Upjohn, involving after-the-fact treatment of privileged documents created in a
corporate setting. Jd. at 19-20 (citing Geders v. United States, 425 U.S. 80, 88-91,
96 S. Ct. 1330, 47 L. Ed. 2d 592 (1976)). The lack of supporting authority
underscores that the implication the majority derives from Upjohn is not supportable.
While the attorney-client privilege encompasses past communications between
corporate defense counsel and corporate employees, this does not translate into a
right of defense counsel to engage in ex parte communications with all employees
once litigation commences. Corporate defense counsel represents the defendant
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Youngs v. PeaceHealth, et al.; Glover v. State, et al., 87811-1
(Stephens, J. Concurrence/Dissent)
corporation, not its employees. Indeed, counsel cannot corepresent an employer and
employee if the duty to one client would be materially limited by the duty to the
other. RPC 1.13(g) (referencing RPC 1.7). Potentially conflicting obligations are
unavoidable in a medical malpractice action where a nonparty treating physician is
both an employee of the defendant and a fiduciary of the plaintiff. If nothing else,
the physician needs guidance on what questions she can answer consistent with her
fiduciary duty to her patient and whether she can discuss her answers with her patient
or the patient's counsel. The situation is so rife with potential conflicts that courts
have recognized the need for corporate counsel to give so-called" Upjohn warnings,"
also known as "corporate Miranda 2 warnings," before questioning employees, to
advise them that the corporation is the client and controls waiver of any attorney-
client privilege and that the employee may need to obtain independent counsel. See
United States v. Ruehle, 583 F.3d 600, 604 n.3 (9th Cir. 2009); RPC 1.13(f) & cmt.
10. Of course, if the employee retains independent counsel, RPC 4.2 prohibits ex
parte contact by corporate defense counsel regardless of the employer-employee
relationship.
To underscore why the attorney-client privilege at issue in Upjohn does not
"trump[] the Loudon rule" as the majority maintains, majority at 21, consider another
situation in which the employee is not a client or a defendant party, but is the plaintiff
bringing suit. Even in a medical malpractice context, a plaintiff may also be an
employee of the defendant corporation. This was the situation in Lowy, and is
2
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
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Youngs v. PeaceHealth, et al.; Glover v. State, et al., 87811-1
(Stephens, J. Concurrence/Dissent)
increasingly common in this era of large health care organizations that require
employees to receive services inside their system. See 174 Wash. 2d at 772 (plaintiff
Dr. Leasa Lowy was the staff physician at the hospital where she was admitted as
patient). The same arguments supporting the corporation's ability to assert attorney-
client privilege over communications between defense counsel and employees
would apply in this context to communications between defense counsel and the
plaintiff-employee. But, no one would suggest that the existence of the attorney-
client privilege somehow implies defense counsel's right to interview the plaintiff
ex parte. This is because the rules limiting ex parte contact do not tum on the
existence or nonexistence of any evidentiary privilege.
Instead, these rules reflect practical distinctions and policy considerations.
Not Upjohn, but Loudon and Wright provide the proper point of reference. These
cases, specific to the litigation context, recognize the distinction between parties and
nonparties and the competing interests oflitigation opponents with respect to certain
nonparty witnesses. Loudon teaches that a nonparty witness who is the plaintiffs
physician cannot be treated the same as any other nonparty witness, whom either
party may freely contact. 110 Wash. 2d at 681 ("The unique nature of the physician-
patient relationship and the dangers which ex parte interviews pose justify the direct
involvement of counsel in any contact between defense counsel and a plaintiffs
physician."). Similarly, Wright recognizes that corporate employees authorized to
speak for or otherwise bind the corporation are considered "parties" with whom
opposing counsel cannot have ex parte contact. 103 Wash. 2d at 195-202. Other
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Youngs v. PeaceHealth, et al.; Glover v. State, et al., 87811-1
(Stephens, J. Concurrence/Dissent)
employees outside this "control group" are nonparty witnesses who may be
interviewed by opposing counsel. Id. Importantly, the court in Wright rejected an
argument based on Upjohn that the attorney-client privilege requires restricting the
ability of opposing counsel to speak with all employees, emphasizing that the
policies defining the scope of the privilege differ from those defining when ex parte
contact should be allowed. !d. at 201-02. Subsequently, the court in Loudon
distinguished Wright, emphasizing that policy concerns specific to the physician-
patient relationship required limiting Wright's rule allowing ex parte contact with
nonparty witnesses. 110 Wash. 2d at 681.
The question in this case, then, is whether the lines that this court has drawn
must be erased simply because the nonparty treating physician is employed by the
defendant health care entity. It is difficult to see how the physician in this corporate
setting is less connected with her patient's interest as to require a different rule. To
the contrary, just as the lead opinion in Smith recognized the heightened risks of ex
parte contact in the medical malpractice context, 170 Wash. 2d at 669 & n.2 (lead
opinion), we should be especially concerned that a physician's duty to a patient may
be compromised when the contact is initiated by the physician's employer's counsel.
The risk that the physician's testimony may be "shaped and influenced," id. at 668
(lead opinion), is perhaps at its highest in this context.
The majority's self-imposed limitation on the ex parte contact it authorizes
offers faint protection against this risk. Under the majority's rule, a plaintiff can do
nothing but blindly trust that opposing counsel and her physician will discuss only
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Youngs v. PeaceHealth, et al.; Glover v. State, et al., 87811-1
(Stephens, J. Concurrence/Dissent)
"the facts of the alleged negligent event." Majority at 31. The court in Loudon was
skeptical, recognizing the inherent danger that ex parte contact would result in
irreparable harm from the improper disclosure of irrelevant, privileged information.
See 110 Wash. 2d at 678 (admitting '" [w ]e are concerned ... with the difficulty of
determining whether a particular piece of information is relevant'" (quoting
Roosevelt .Hotel Ltd. P'ship v. Sweeney, 394 N.W.2d 353, 357 (Iowa 1986))).
Additionally, we recognized that "[t]he harm from disclosure of this confidential
information cannot ... be fully remedied by subsequent court sanctions." !d. The
majority seems to brush aside these concerns in formulating a rule that requires
physicians and defense attorneys to determine what constitutes "facts of the alleged
negligent incident." Majority at 32.
The majority's rule not only subjects the physician-plaintiff relationship to the
inherent dangers of inadvertent disclosure but prevents the plaintiff from inquiring
about any such disclosures under the cloak of attorney-client privilege. See RCW
5.60.060(2)(a) (prohibiting examination of attorney regarding attorney-client
communication); State v. Ingels, 4 Wn.2d 676,712, 104 P.2d 944 (1940) (extending
statutory prohibition against examination to client). This is clearly not what we
intended in Loudon when we sought to "protect[] the sanctity" of the physician-
patient relationship, to recognize that '"[t]he relationship between physician and
patient is "a fiduciary one of the highest degree ... involv[ing] every element of
trust, confidence and good faith,"' "to 'surround patient-physician communications
with a "cloak of confidentiality" to promote proper treatment by facilitating full
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Youngs v. PeaceHealth, et al.; Glover v. State, et al., 87811-1
(Stephens, J. Concurrence/Dissent)
disclosure of information,'" and "'to protect the patient from embarrassment or
scandal which may result from revelation of intimate details of medical treatment."'
Smith, 170 Wash. 2d at 667 (quoting Loudon, 110 Wash. 2d at 679 (alterations in original)
(quoting Lockett v. Goodwill, 71 Wash. 2d 654, 656, 430 P.2d 589 (1967))), and
(quoting Carson v. Fine, 123 Wash. 2d 206, 213, 867 P.2d 610 (1994) (lead opinion)
(quoting Dep 't of Soc. & Health Servs. v. Latta, 92 Wash. 2d 812, 819, 601 P .2d 520
(1979))). The majority's new rule undermines these goals.
Even worse, many plaintiff-patients have no realistic opportunity to arrange
for their health care outside the corporate setting in a manner that avoids the risks of
the majority's rule. In an age of large health maintenance organizations (HMOs),
the physician-patient relationship is increasingly intertwined with the employer-
employee relationship, and thus vulnerable to employer encroachment. HMOs
generally require their members to use their doctors and facilities; going elsewhere
and paying out-of-pocket is not an option for most. It is no longer a rare instance
that a defendant health care provider is the employer of a plaintiffs physicians, past
or present. As illustrated by Lowy, even the plaintiff may be an employee. The need
to protect the integrity of the physician-patient relationship should be of even greater
concern now than 25 years ago.
While the majority's rule imposes new burdens on plaintiff-patients, applying
the Loudon rule in the corporate medicine context does not unduly limit the ability
of the defendant corporations to protect their interests. Loudon does not restrict the
sort of internal, prelitigation investigations that produced the attorney-client
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Youngs v. PeaceHealth, et al.; Glover v. State, et al., 87811-1
(Stephens, J. Concurrence/Dissent)
privileged documents at issue in Upjohn. Quality improvement committees are still
able to collect confidential patient information in order to assess legal risks and areas
of improvement, in compliance with RCW 70.41.200(l)(e), so long as QI team
members are later screened from litigation and that information is protected from
civil discovery. Moreover, a corporate defendant remains free to engage in
privileged communications with its employees other than the plaintiff or the
plaintiffs nonparty treating physicians, before and throughout litigation. Loudon
does not prevent hospitals from obtaining legal services in compliance with RCW
70.02.050(l)(b). Even as to the plaintiffs nonparty treating physicians, the
information defense counsel seeks can be obtained through medical records,
depositions by examination or written questions, and informal interviews with both
counsel present. Loudon, 110 Wash. 2d at 680. As the majority recognizes, "Loudon
does not prohibit the acquisition of knowledge; it merely imposes procedural
safeguards to prevent improper influence or disclosures." Majority at 30. For good
reason, the court in Loudon was "unconvinced that any hardship caused the
defendants by having to use formal discovery procedures outweighs the potential
risks involved with ex parte interviews." 110 Wash. 2d at 680.
A quarter century ago, this court, in Loudon, was presented with the question
of "whether defense counsel in a personal injury action may communicate ex parte
with the plaintiffs treating physicians when the plaintiff has waived the physician-
patient privilege." !d. at 675-76. We resolutely answered "no" and emphasized that
ex parte communications with a patient's physicians are inherently dangerous and
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Youngs v. PeaceHealth, et al.; Glover v. State, et al., 87811-1
(Stephens, J. Concurrence/Dissent)
against public policy. !d. at 676-78, 681. The potential for inadvertent disclosure
of irrelevant, confidential information and its concomitant erosion of the physician-
patient fiduciary relationship concerned us then and is of even greater concern in the
corporate medicine context. The majority's attempt to find a way to allow ex parte
contact while respecting the policy underlying Loudon is understandable, but
unworkable. It exposes not only the patient-plaintiff, but also the nonparty physician
and defense counsel to the very risks that the court in Loudon considered when it
drew a bright line prohibiting ex parte contact. We should underscore, not blur, that
line.
CONCLUSION
While I appreciate the majority's attempt to balance the competing interests
at stake, the solution it offers is no solution at all. No one's interests are served by
a rule that allows defense counsel to engage in ex parte communications with the
plaintiffs nonparty treating physicians who are employed by the defendant, but only
as to facts based on their "firsthand knowledge of the alleged negligent event."
Majority at 31; see also id. at 22. This gives very little ground to the defense, as
most physician employees with such knowledge will meet the definition of "party"
in the corporate medicine context. It gives even less solace to the medical
malpractice plaintiff or a court seeking assurance that ex parte communications with
nonparty treating physicians do not exceed this limited scope because the majority
anticipates the communications with defense counsel will be privileged. Id. at 31
(noting defense counsel "may engage in privileged (ex parte) communications").
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Youngs v. PeaceHealth, et al.; Glover v. State, et al., 87811-1
(Stephens, J. Concurrence/Dissent)
And it creates a precarious situation for the nonparty treating physician, who must
guess right about where to draw the line between providing confidential information
to the employer and breaching a fiduciary duty to the plaintiff.
The better course is to recognize that the Loudon rule applies fully to medical
malpractice cases in which the plaintiffs nonparty treating physicians happen to be
employed by the defendant. The risks sought to be minimized by the Loudon rule
exist equally in this context, and the employer-employee relationship provides
insufficient justification for a different rule. Nor does the attorney-client privilege
necessitate allowing ex parte communications with nonparty treating physicians in
the corporate medicine setting. Any attorney-client relationship exists between the
defendant corporation and its counsel, not its employee physicians whose interests
may materially differ from the corporation's, particularly where the physician owes
a fiduciary duty to the plaintiff. Defense counsel's need '"to determine what
happened,"' id. at 21-22 (quoting Upjohn, 449 U.S. at 392), is not defeated by
respecting the Loudon rule in this context, as the facts remain fully available to both
parties, albeit through normal discovery channels.
Upholding the Loudon rule, I concur in the majority's decision to affirm the
trial court order in Glover prohibiting ex parte contact between defense counsel and
Aolani Glover's treating physicians at the University of Washington Medical Center
(UWMC). 3 I dissent from the majority's decision affirming the trial court order in
3
I agree with the majority's reversal of that portion of the order barring UWMC's
risk manager from ex parte contact with Glover's physicians, understanding that litigation
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Youngs v. PeaceHealth, et al.; Glover v. State, et al., 87811-1
(Stephens, J. Concurrence/Dissent)
Youngs to allow limited ex parte communications with nonparty treating physicians
"who have firsthand knowledge of the alleged negligent incident." !d. at 32. I would
reverse the trial court and remand with instructions to reinstate the prior order
prohibiting ex parte contact with any of Youngs' treating physicians other than Dr.
Richard Leone and Dr. Donald Berry.
defense counsel must be screened from access to such information collected as part of
quality improvement efforts.
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Youngs v. PeaceHealth, et al.; Glover v. State, et al., 87811-1
(Stephens, J. Concurrence/Dissent)
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