244 P.3d 939
Wash.2010Background
- Brenda Smith died 2005 from MRSA after spine and vascular surgeries; multiple physicians involved including Dr. Schwaegler and Dr. Johansen.
- Smith, as personal representative, sued Orthopedics International and Dr. Schwaegler for negligence proximate to Brenda's death.
- The plaintiff-waiver of physician-patient privilege allowed a court-driven mechanism; defense contact with treating physicians was restricted per Loudon v. Mhyre.
- Before trial, Orthopedics planned to call Dr. Johansen; Smith’s counsel deposed him; defense sent documents and a direct-examination outline to Dr. Johansen’s counsel.
- The trial court denied motions for new trial after discovering ex parte communications; Court of Appeals upheld; this court granted review.
- The core issue is whether the ex parte transmission violated Loudon and, if so, the proper remedy.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Loudon rule barred ex parte contact via counsel | Smith argues the transmission violated Loudon | Orthopedics contends it was lawful as lawyer-to-lawyer communication | Loudon violated; but no prejudice shown |
| Whether the remedy should be a new trial | Smith seeks automatic new trial and exclusion of Johansen’s testimony | Orthopedics argues remedy should depend on prejudice | No automatic new trial; remedy depends on prejudice; no prejudice found |
| Whether there was actual prejudice from the ex parte contact | Smith asserts the contact influenced Johansen's testimony | Orthopedics contends testimony paralleled deposition and was not influenced | No prejudicial effect found; testimony not shown to be influenced by contact |
Key Cases Cited
- Loudon v. Mhyre, 110 Wash.2d 675 (1988) (prohibits defense ex parte contact with plaintiff's physicians to protect physician-patient privilege)
- Holbrook v. Weyerhaeuser Co., 118 Wash.2d 306 (1992) (expands Loudon principles and discusses ex parte contact generally)
- Carson v. Fine, 123 Wash.2d 206 (1994) (discusses Loudon in terms of allowing counsel to participate in physician interviews to protect privacy)
- Ford v. Chaplin, 61 Wash.App. 896 (1991) (Loudon context; holds on remedial measures when ex parte contact occurs in absence of deposition)
- Smith v. Orthopedics Int'l, Ltd., 149 Wash.App. 337, 203 P.3d 1066 (2009) (intermediate appellate decision affirming trial court’s denial of new trial; Loudon not extended to reach different remedy)