Youngs v. PeaceHealth
179 Wash. 2d 645
| Wash. | 2014Background
- Two consolidated medical-malpractice cases raised whether Loudon v. Mhyre’s ban on ex parte defense contact with a plaintiff’s nonparty treating physician applies when that physician is employed by the defendant hospital/corporation.
- Youngs: patient suffered catastrophic postoperative injuries at PeaceHealth; defense sought ex parte contact with PeaceHealth-employed treating physicians; plaintiff objected except as to two named doctors.
- Glover: plaintiff alleged delayed ER treatment at Harborview (UW system); plaintiff originally sought to bar ex parte contact with UWMC treating physicians; trial court entered a protective order barring defense ex parte contact with UWMC treating physicians.
- Defendants argued that (1) post-1986/1987 statutory amendments to the physician-patient privilege (automatic 90-day waiver) superseded Loudon, and (2) corporate attorney-client privilege (Upjohn) and hospital regulatory statutes (UHCIA, QI statute) permit ex parte communications with employee physicians.
- The Supreme Court of Washington granted review to resolve the conflict between Loudon (protecting physician-patient confidentiality and requiring counsel presence) and Upjohn (extending attorney-client privilege to corporate employees).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Do the 1986/1987 waiver amendments to the physician-patient privilege abolish Loudon’s ban on defense ex parte contact? | Loudon still needed to protect confidentiality despite statutory waiver; plaintiffs argued Loudon survives. | PeaceHealth argued statutory automatic waiver supersedes Loudon. | Held: Loudon survives; statutory waiver codified prior judge-made waiver but does not eliminate Loudon’s prophylactic protections. |
| Does the corporate attorney-client privilege allow defense counsel to have privileged ex parte communications with a plaintiff’s treating physician who is an employee? | Plaintiffs argued Loudon should bar ex parte contact even if the physician is employed by defendant. | Defendants relied on Upjohn to claim a right to confidential communications with employee physicians. | Held: Upjohn privilege can apply, but limited — defense counsel may have privileged ex parte contacts only when (a) attorney-client prerequisites are met, (b) physician has firsthand knowledge of the event triggering litigation, and (c) communications concern only facts of the alleged negligent incident. Loudon otherwise bars ex parte contact on other topics. |
| Do hospital regulatory statutes (UHCIA, QI statute) permit unrestricted ex parte communications that override Loudon? | Plaintiffs: statutes can coexist with Loudon; hospitals can be screened from litigation. | Defendants: statutes authorize disclosures to obtain legal services and QI activities, which would make Loudon unworkable. | Held: Statutes do not displace Loudon. QI committee members cannot be restricted from QI work but must be screened from defense counsel in litigation; UHCIA does not justify overriding Loudon. |
| How should trial courts apply these rules to the two cases (remedy)? | Plaintiffs sought broad protective orders barring ex parte contact. | Defendants sought allowance for ex parte contacts under Upjohn-limited scope. | Held: Glover — affirmed prohibition on ex parte contact with UWMC treating physicians (they lacked firsthand knowledge of Harborview event); reversed order barring risk manager if screened. Youngs — affirmed limited allowance for ex parte contact only with employee physicians having firsthand knowledge and only about facts of the alleged negligent incident; reversed allowance as to other physicians/topics. |
Key Cases Cited
- Upjohn Co. v. United States, 449 U.S. 383 (1981) (corporate attorney-client privilege may extend to communications with nonmanagerial employees to enable counsel to ascertain facts necessary for legal advice)
- Loudon v. Mhyre, 110 Wn.2d 675 (1988) (bars ex parte defense contact with a plaintiff’s nonparty treating physician to protect physician-patient confidentiality and fiduciary relationship)
- Wright v. Group Health Hosp., 103 Wn.2d 192 (1984) (distinguishes corporate “control group” and discusses ex parte contacts with corporate employees)
- Smith v. Orthopedics Int’l, Ltd., 170 Wn.2d 659 (2010) (reaffirmed Loudon’s ban on ex parte contacts and extended its scope to any ex parte "contacts")
- Carson v. Fine, 123 Wn.2d 206 (1994) (post-amendment acknowledgment that Loudon bars ex parte communications despite statutory waiver)
- Geders v. United States, 425 U.S. 80 (1976) (communication restrictions can implicate the right to counsel — cited to show deprivation of confidential counsel contact undermines privilege)