Lead Opinion
¶ 1 The question presented in this case is whether Loudon v. Mhyre, 110 Wn.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.
¶2 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 of law and administration of justice.’ ”
¶3 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 . . . involving] 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.’ ”
¶4 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 plaintiff’s nonparty treating physician, to investigate claims and
¶5 We reject the suggestion (of plaintiffs and amicus Washington State Association for Justice Foundation (WSAJF)) that the test announced in Wright v. Group Health Hospital, 103 Wn.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 plaintiff’s physician-patient privilege or the corporation’s attorney-client privilege. We also reject the suggestion (of defendants and amicus Washington Defense Trial Lawyers) 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 on 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 plaintiff’s 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.
¶7 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 Wn.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
¶8 Plaintiff Marc Youngs was admitted to defendant PeaceHealth’s Bellingham, Washington, facility, St. Joseph Hospital, for lung surgery in December 2008. 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
2. Glover v. State ofWashington d/b/a Harborview Medical Center
¶9 Aolani Glover went to the Harborview Medical Center 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 ele
¶10 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.
¶11 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
¶12 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
¶13 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.
¶14 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 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
¶15 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 plaintiff’s 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 must be screened from defense counsel in an action against the hospital for negligence or medical malpractice.
ANALYSIS
1. Loudon survives the 1986/1987 amendments to the physician-patient privilege statute
¶16 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 Wn.2d 439, 445 P.2d 624 (1968); Bond v. Indep. Order of Foresters, 69 Wn.2d 879, 421 P.2d 351 (1966); Randa v. Bear, 50 Wn.2d 415, 312 P.2d 640 (1957); McUne v. Fuqua, 42 Wn.2d 65, 253 P.2d 632, 257 P.2d 636 (1953).
¶18 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.
¶19 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:
*659 A patient may waive [the physician-patient] privilege by putting his or her physical condition in issue. See Randa v. Bear, 50 Wn.2d 415, 312 P.2d 640 (1957); Phipps v. Sasser, 74 Wn.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 plaintiff’s interest in avoiding such disclosure can best be protected by allowing plaintiff’s counsel an opportunity to participate in physician interviews and raise appropriate objections.
Loudon, 110 Wn.2d at 678 (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 plaintiff’s treating physicians.” Carson v. Fine, 123 Wn.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.
¶20 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 ... involving] every element of trust, confidence, and good faith.” Lockett v. Goodill, 71 Wn.2d 654, 656, 430 P.2d 589 (1967). . . . “[W]e find it difficult to believe*660 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 Wn.2d at 679 (alterations in original) (footnote omitted) (quoting 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
¶21 In sum, Loudon clearly establishes a patient-plaintiff’s 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 Wn.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.
¶22 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.
¶23 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. Id. 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. Id.
¶24 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 Wn.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 non-managerial employees. Upjohn, 449 U.S. at 389. The Court said the answer is yes, largely because “protection] against compelled disclosure” was “Consistent with the underlying purposes of the attorney-client privilege.” Id. at 395.
¶26 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 Wn.2d at 201-02; see also Sherman v. State, 128 Wn.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”).
¶27 In this case, however, Upjohn and Loudon conflict. Loudon and Upjohn do address different types of commu
¶28 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.
¶29 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 identi
¶30 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 Wn.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 limited, written communications and unlimited ex parte interviews. Smith v. Orthopedics Int'l, Ltd., 170 Wn.2d 659,665-70,224 P.3d 939 (2010). 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 is unrelated to any of the policy concerns articulated in Upjohn.
3. Hospital Regulatory Law
¶31 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.
¶32 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 Loadore-equivalent, the 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.’ ” Id. at 26 (quoting 210 Ill. Comp. Stat. 85/6.17(e)).
[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 plaintiff’s 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.
Id. at 58-59.
¶33 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. Id. at 26 (quoting 210 III. 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
¶34 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.
¶35 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(l)(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.
¶36 The defendants cite cases from Arizona and Florida, where courts have held that a hospital’s employer status trumps those states’ LoiicZorc-equivalents. Florida’s District Court of Appeal found that intrahospital communications were not “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
¶37 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.
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.
¶38 Loudon survives the amendments to the patient privilege statute. It remains good law, and it applies where the defendant employs the plaintiff’s 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-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.
¶39 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.
¶40 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 we remand the trial
¶41 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.
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)).
This court has cited Upjohn favorably on a number of occasions. See, e.g., Wright v. Grp. Health Hosp., 103 Wn.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 Wn.2d 164,190,905 P.2d 355 (1995) (citing Upjohn for the principle that corporate attorney-client privilege might shield certain correspondence from discovery).
Smith v. Orthopedics Int'l, Ltd., 170 Wn.2d 659, 667, 244 P.3d 939 (2010) (second and third alterations in original) (internal quotation marks omitted) (quoting Loudon, 110 Wn.2d at 679; Carson v. Fine, 123 Wn.2d 206,213, 867 P.2d 610 (1994)).
See generally Haines v. Liggett Grp., 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.”).
This court discussed the purpose of the amendments in Carson, 123 Wn.2d at 213-14, 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 Wn. App. 589, 591, 744 P.2d 646 (1987).... This conclusion is now expressly set forth in [the 1986 amendment].
Id. at 214.
The 1987 amendment is a codification of existing Washington case law which holds that waiver occurs even without plaintiff’s 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.
Three years ago, in Smith, 170 Wn.2d at 666-67, 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, while in medical malpractice cases they might draw the nonparty physician into discussions about the overall merit of malpractice suits. Id. at 669 n.2 (citing Law v. Zuckerman, 307 F. Supp. 2d 705, 711 (D. Md. 2004); Manion v. N.P.W. Med. Ctr. of N.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. Id. at 670.
In 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 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.
See supra note 4.
The defendants also cite the federal Health Insurance Portability and Accountability Act of 1996 (HIPAA), Pub. L. No. 104-191, 110 Stat. 1936, which allows disclosure of confidential health care information under certain circumstances. In general, HIPAA supersedes contrary state law, but it does not do so where “the provision of State law . . . relates to the privacy of individually
The full text of RCW 70.02.050(l)(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 or health care facility 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.
The text of RCW 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:
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
The 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
“(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).
Concurrence in Part
¶42 (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 671. This rule is wholly unworkable. Moreover, it erodes the sound policy decision made by this court in Loudon v. Mhyre, 110 Wn.2d 675, 756 P.2d 138 (1988), without justification rooted in either the employer-employee relationship or the attorney-client privilege.
¶43 I would hew to our decision in Loudon, recognizing that the risks we were concerned with there exist equally in
DISCUSSION
¶44 This court in Loudon adopted a bright-line rule prohibiting defense counsel from engaging in ex parte contact with the plaintiff’s nonparty treating physicians. 110 Wn.2d at 682; Smith v. Orthopedics Int’l, Ltd., 170 Wn.2d 659, 670, 244 P.3d 939 (2010) (lead opinion). As the majority recognizes, this rule serves several important goals: it safeguards the plaintiff’s 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 659-60. In the context of medical malpractice litigation, the Loudon rule is particularly important to avoid the risk that the plaintiff’s health care providers might be unduly “shaped and influenced by” ex parte contact or “improperly assume a role akin to that of
¶45 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 658-69; see Smith, 170 Wn.2d at 665 (lead opinion), 674 (Fairhurst, J., concurring). This was clear from the instant the issue was stated in Loudon. 110 Wn.2d at 675-76 (“The issue presented is whether defense counsel in a personal injury action may communicate ex parte with the plaintiff’s treating physicians when the plaintiff has waived the physician-patient privilege.” (emphasis added)).
¶46 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 QI reviews. Neither the UHCIA nor the QI statute erodes the policy of Loudon. As the majority observes, “[T]he Lou-don rule and the QI regime have coexisted, apparently successfully, for over 25 years.” Majority at 669. It is certainly possible to segregate litigation activity and QI activity.
¶47 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 653. 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 671, which are equally available to both parties. How this rule will play out in practice is hard to describe. Apparently, both defense counsel and plaintiff’s counsel can interview the employee physician ex parte, since the majority would recognize that Wright v. Group Health Hospital, 103 Wn.2d 192, 691 P.2d 564 (1984), governs plaintiff’s counsel’s contact with the physician. Majority at 653. But, the corporate defendant can claim attorney-client privilege as to what the plaintiff’s 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.
¶48 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 661, it
¶49 To underscore why the attorney-client privilege at issue in Upjohn does not “trump [ ] the Loudon rule” as the majority maintains, majority at 664, 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 increasingly common in this era of large health care organizations that require employees to receive services inside their system. See 174 Wn.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 turn on the existence or nonexistence of any evidentiary privilege.
¶50 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 of litigation opponents with respect to certain nonparty witnesses. Loudon teaches that a nonparty witness who is the plaintiff’s physician cannot be treated the same as any other nonparty witness, whom either party may freely contact. 110 Wn.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
¶51 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 Wn.2d at 669 & n.2, 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.
¶52 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 “the facts of the alleged negli
¶53 The majority’s rule not only subjects the physician-plaintiff relationship to the inherent dangers of inadvertent disclosure but also 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 . . . involving] 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.’ ” Smith, 170 Wn.2d at 667 (most alterations in original) (quoting Loudon, 110 Wn.2d at 679 (quoting Lockett v. Goodill, 71 Wn.2d 654, 656, 430 P.2d 589 (1967)), and quoting Carson v. Fine, 123 Wn.2d 206, 213,
¶54 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 plaintiff’s 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.
¶55 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 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 plaintiff’s 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 plaintiff’s nonparty treating physicians, the information defense counsel seeks can be
¶56 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 plaintiff’s treating physicians when the plaintiff has waived the physician-patient privilege.” Id. at 675-76. We resolutely answered no and emphasized that ex parte communications with a patient’s physicians are inherently dangerous and against public policy. Id. 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
¶57 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 plaintiff’s nonparty treating physicians who
¶58 The better course is to recognize that the Loudon rule applies fully to medical malpractice cases in which the plaintiff’s 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 664 (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.
¶59 Upholding the Loudon rule, I concur in the majority’s decision to affirm the trial court order in Glover
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 665 n.9 (citing Pub. L. No. 104-191, 110 Stat. 1936).
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
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 defense counsel must be screened from access to such information collected as part of quality improvement efforts.