Snyder v. Virginia Mason Med. Ctr.

majority opinion

FILE

THIS OPINION WAS FILED

FOR RECORD AT 8 A.M. ON

OCTOBER 1, 2026

IN CLERK’S OFFICE

SUPREME COURT, STATE OF WASHINGTON SARAH R. PENDLETON

SUPREME COURT CLERK

OCTOBER 1, 2026

IN THE SUPREME COURT OF THE STATE OF WASHINGTON

)

MICHAEL K. SNYDER, ) No. 104136-5

individually, )

)

Petitioner/Cross-Respondent, )

)

v. ) En Banc

)

VIRGINIA MASON MEDICAL )

CENTER, )

)

Respondent/Cross-Petitioner, )

) Filed: October 1, 2026

JARED BRANDENBERGER, M.D. )

and JOHN and JANE DOE )

PHYSICIANS, UNKNOWN )

JOHN and JANE DOE NURSES, )

)

Defendants. )

_______________________________)

GONZÁLEZ, J.— Decades ago, in Loudon, this court established a mechanism

to protect two values our society holds dear: first, a doctor’s long-standing

obligation to protect their patients’ confidentiality, and second, a defendant’s right

to investigate claims against them. See Loudon v. Mhyre, 110 Wn.2d 675, 756 P.2d

138 (1988). Loudon establishes that defendants in personal injury cases must use Snyder v. Virginia Mason, No. 104136-5

formal discovery rules to communicate with a plaintiff’s nonparty doctors,

essentially meaning such communications must be done with the plaintiff’s

knowledge and, in some circumstances, consent.

We have recognized one exception to Loudon. When the defendant is a

corporation, corporate counsel may have privileged conversations with the

corporation’s current employees (and individuals who are the functional

equivalents of current employees), including the plaintiff’s nonparty doctors,

without going through the formal discovery process. Conversations regarding care

provided to the plaintiff are limited to the facts that gave rise to the claim.

In this case, Michael Snyder suffered a catastrophic injury during an

operation at Virgina Mason Medical Center (Virginia Mason). He sued Virginia

Mason and the lead surgeon. Virginia Mason’s investigation identified three

nonparty doctors who participated in the surgery and who may have contributed to

Snyder’s injuries. These three doctors no longer work at Virginia Mason, but

Virginia Mason is contractually obligated to defend and indemnify them in this

case.

Virginia Mason communicated with those doctors without going through the

formal discovery process and without Snyder’s knowledge or consent. In addition,

Virginia Mason’s chief medical officer (who was also a member of the hospital’s

Snyder v. Virginia Mason, No. 104136-5

quality improvement committee) traveled across the state to speak with one of the

doctors about this case.

Virginia Mason contends that its communications with those three doctors

was not improper because, in its view, it is allowed to have privileged, ex parte

communication with Snyder’s nonparty doctors without his knowledge or consent

under a variety of theories. We affirm the courts below that it is not.

Snyder contends that Virginia Mason’s failure to screen a member of its

quality improvement committee from this litigation precludes the hospital from

asserting the statutory privilege established by RCW 70.41.200. We conclude that

Virginia Mason at least partially waived the statutory privilege under these facts.

We vacate the trial court’s denial of Snyder’s motion to compel production of such

materials and remand for further proceedings, including in camera review where

necessary.

Snyder also contends that he is entitled to default judgment on liability as a

remedy because Virginia Mason’s secret communications with his three doctors

has so tainted critical evidence that he has been denied a fair trial. We conclude

that Snyder is not required to demonstrate litigation prejudice in order to receive

remedies for Virginia Mason’s Loudon violation, as the violation is not simply a

discovery violation. The violation itself is prejudicial, though a trial court

exercises discretion to determine an appropriate remedy based on the extent of

Snyder v. Virginia Mason, No. 104136-5

prejudice shown, which may include consideration of the Loudon violation’s

impact on the litigation. We vacate the trial court’s denial of Snyder’s motion for

default judgment and remand for reconsideration. The trial court’s determination

of an appropriate remedy should be based on a full review of records identified in

relation to the Loudon violation, including in camera review where necessary to

assess Virginia Mason’s claims of privilege. Accordingly, we affirm the courts

below in part and remand this case to the trial court for further proceedings

consistent with this opinion.

BACKGROUND

Snyder had major surgery at Virginia Mason in January 2018. Dr. Jared

Brandenberger was the lead surgeon. Two residents, Drs. Molly Downey and

Weslee Chew, were responsible for threading a needle and wire through Snyder’s

jugular vein as part of placing a catheter. At some point, it appears that the tip of

that line passed through an artery and into Snyder’s chest.

When Dr. Brandenberger realized that the tip of the line was not where it

was supposed to be, he called Dr. Nathan Aranson, a vascular surgeon, to assist.

Initially, Dr. Aranson suggested that the surgical team inject a contrast dye while

taking imaging to determine the exact location of the tip. When that failed, he

suggested the surgeons slowly withdraw the catheter line.

Snyder v. Virginia Mason, No. 104136-5

Almost immediately, Snyder began to bleed heavily. Snyder suffered a

massive hemorrhage in his chest and a prolonged cardiac arrest, among other

things. The medical team was able to save Snyder’s life, but Snyder was left with

permanent, disabling injuries.

Snyder sued Virginia Mason and Dr. Brandenberger, and John and Jane Doe

physicians and nurses, in March 2019. Snyder did not name Drs. Chew, Downey,

and Aranson as defendants, and at the time he filed this case, it appears Snyder had

no reason to believe any of them might have contributed to his injuries.

Not long after Snyder filed his lawsuit, Virginia Mason’s counsel determined

that Drs. Downey, Chew, and Aranson were involved in the care that gave rise to

this lawsuit. None of these doctors still worked at Virginia Mason, but Virginia

Mason is still responsible for providing them with a defense and covering any

liability they may have for Snyder’s injuries. Virginia Mason arranged for these

three doctors to be represented by separate counsel, Jennifer Oetter. Virginia

Mason’s legal defense team and its three former doctors also worked with the same

risk managers and third-party claims administrators at Western Litigation. 1

Western Litigation is not a party to this case but has worked closely with Virginia Mason and has been subject to court orders regarding its communications with the nonparty doctors and Virginia Mason. See, e.g., Clerk’s Papers at 1218 (Ord. Granting Pl.’s Mot. to Compel Compliance with Subpoena Duces Tecum and to Find W. Litig., a Div. of Gallagher Bassett, in Contempt).

Snyder v. Virginia Mason, No. 104136-5

Virginia Mason’s chief medical officer, Dr. Michael Glenn, traveled across

the state in December 2019 to talk with Dr. Chew and assure him that Virginia

Mason supported him with regard to Snyder’s surgery. Dr. Glenn also served on

Virginia Mason’s quality oversight committee and had learned about Snyder’s suit

through someone on Virginia Mason’s legal team. Virginia Mason’s defense team

worked with Dr. Glenn in coordinating the trip and provided him with talking

points for that conversation. Dr. Glenn later testified in a deposition that he had

not discussed the surgery or the litigation details with Dr. Chew at that meeting and

had not received talking points in writing.

The separate counsel Virginia Mason had retained to represent the three

nonparty doctors, Oetter, was present for the meeting and had discussed traveling

there with Dr. Glenn. After the two doctors spoke, Oetter met with Dr. Chew for

about an hour, followed by another discussion between the two doctors.

Snyder’s attorney learned that Drs. Chew and Downey placed the catheter

that may have caused Snyder’s injuries months later, in February 2020. Two

months later, Virginia Mason included Drs. Chew and Downey in a witness

disclosure of over 100 potential witnesses without explaining their roles in the

surgery.

In that witness disclosure, Virginia Mason stated that “[t]he identity of those

persons and the relevant knowledge they may possess is more readily available to

Snyder v. Virginia Mason, No. 104136-5

plaintiff’s counsel than defense counsel because plaintiff knows the involvement

those providers have had, and plaintiff’s counsel can contact those providers while

defense counsel cannot.” CP at 1669.

This statement was, at least, misleading.

By the time it made that statement in April 2020, Virginia Mason’s legal

team had been in active communication with the three doctors’ lawyer concerning

Snyder’s case, both directly and through Western Litigation. For example, shortly

before Virgina Mason told Snyder it could not contact his former doctors, Virginia

Mason’s risk manager had an hour conversation with Dr. Aranson and had

informed him that he was “essential in prepping the case.” CP at 1662-63.

Virginia Mason’s risk manager discussed her conversation with Dr. Aranson in an

e-mail string with Oetter. A privilege log listed more than 400 separate instances

of communication that potentially violated Snyder’s right to have his attorney

present during communications with his nonparty doctors.

Snyder did not know about these ongoing communications for the first few

years of litigation.

Then, in early 2021, two of Snyder’s experts, Drs. John Moriarty and Shawn

Tsuda, were deposed by the defense. Both experts suggested that the three

nonparty doctors might have been negligent. Dr. Tsuda stated that allowing

residents to participate in the surgery was unreasonable given its high risk. Dr.

Snyder v. Virginia Mason, No. 104136-5

Moriarty was critical of Dr. Chew’s placement of the catheter line. Dr. Tsuda also

suggested that Dr. Aranson’s advice might have been negligent, though Dr. Tsuda

was careful to say he was not a vascular specialist and was not offering a direct

opinion on that point. Dr. Moriarty was also critical of Dr. Aranson’s decision to

withdraw the line.

Not long afterward, Oetter asked Snyder’s counsel for transcripts of any

expert depositions where Dr. Aranson was discussed. When Snyder’s counsel

declined, Oetter obtained the transcripts from Western Litigation. Dr. Aranson

moved to intervene in the case and be represented by separate counsel. Dr.

Aranson’s motion referred to Dr. Tsuda’s deposition and attached transcripts of that

deposition.

Dr. Aranson contended that he should be allowed to intervene because he

might be found negligent, such a finding could affect him professionally, and his

interests, he believed, could not be adequately represented by the existing parties.

Virginia Mason supported his motion on several grounds, including that their

interests might conflict and, again, that it “did not have access” to Dr. Aranson,

despite the fact it appears its agents had been in close communication with his

Snyder v. Virginia Mason, No. 104136-5

attorney. CP at 4427. Over Snyder’s objection, Dr. Aranson was allowed to

intervene.2

Meanwhile, Snyder sought Virginia Mason’s communications with Dr.

Aranson, among other things related to Virginia Mason’s communications with

nonparty doctors. Virginia Mason responded by moving for a protective order.

Virginia Mason argued that its communications with the nonparty doctors was

privileged and not limited by Loudon.3

The trial court expressed surprise, observing that “it’s not clear to me how a

communication which is disallowed by law would be protected under the cloak of

privilege.” The court went on to say:

So to summarize, I don’t understand what the privilege is. I don’t

understand why it’s being raised now for the first time. And from my

vantage point, which, in a moment I’m going to stop talking so you can

correct me, there seems to be a pretty major ethical violation here—I

don’t say that lightly—that it would be wiser for everyone to just

acknowledge and address rather than creating smokescreens around it

that aren’t particularly compelling.

Later, the trial court dismissed Dr. Aranson as a defendant based on the statute of limitations, while allowing Snyder to argue that Virginia Mason was vicariously liable for any negligence on Dr. Aranson’s part. Dr. Brandenberger was also dismissed as a defendant on the plaintiff’s motion. Virginia Mason is the sole remaining defendant.

Virginia Mason also argued that Snyder had waived any objection to ex parte contact between the defendant hospital and Dr. Aranson by waiving any objection to Virginia Mason’s attorney representing Dr. Aranson after Dr. Aranson moved to intervene. These arguments are not before us.

Snyder v. Virginia Mason, No. 104136-5

That said, I will say to the defense, and I say this with a heavy

heart and I do not say it lightly, there is some pretty considerable trust

lost at this point between you collectively and me. The communications

here it seems to me were per se a violation of Washington state law

conducted by people who frankly know that law about 20 times better

than I do and who are statewide experts on that law.

So we have a pretty huge problem here, the extent of it is not yet

known to me. The way to fix it is not yet understood by me, but the

gravity of the situation I think cannot be understated.

CP at 2378, 2380.

The trial court directed the defense to produce communications between

Virginia Mason’s defense counsel and nonparty health care providers for review by

a special master.4 Virginia Mason produced hundreds of responsive documents and

thousands of pages for the special master’s review. The special master identified

30 documents that they believed should be disclosed, which, over Virginia Mason’s

strong objection, the trial court ordered.

Dissatisfied with the limited document disclosure, Snyder moved the court

to direct the special master to produce all of the documents for the trial court’s

review. Before ruling, the judge directed Virginia Mason to produce a privilege log

of all documents provided to the special master, as well as any correspondence

with that special master, for in camera review. That privilege log described 467

documents.

The trial court did not require Virginia Mason to disclose communications with Dr. Aranson after the time he moved to intervene.

Snyder v. Virginia Mason, No. 104136-5

Much earlier in the lawsuit, Snyder had asked Virginia Mason if it had

investigated the accident, for the names of anyone involved in such an

investigation, and to identify material related to any such investigation. Originally,

Virginia Mason acknowledged that its quality improvement program had

investigated the accident but declined to give details, invoking RCW 70.41.200.

This statute makes information and documents created for and collected and

maintained by quality improvement committees exempt from discovery. In

November 2021, Virginia Mason supplemented its answer to acknowledge that

among others, Dr. Glenn, who had traveled to Prosser to meet with Dr. Chew in

relation to the lawsuit, had been part of that quality improvement investigation.

Snyder moved for production of Virginia Mason’s relevant quality

improvement documents in February 2022. That motion was denied. A month

later, Virginia Mason’s risk manager submitted a declaration saying that “[o]utside

of the quality improvement process, [Virginia Mason] has never conducted an ex

parte interview with Drs. Chew, Downey, or Aranson regarding any care they

provided to Plaintiff.” CP at 3972 (italics omitted).

Meanwhile, in January 2022, Virginia Mason moved for leave to have ex

parte communication with the three doctors. It contended that Loudon should not

apply to situations where the nonparty doctor provided the allegedly negligent

care. Virginia Mason also argued that it should be able to share privileged ex parte

Snyder v. Virginia Mason, No. 104136-5

communications with its three former employees under the common interest

doctrine. The trial court denied the motion on the grounds that the issue had

already been extensively litigated, and Virginia Mason had offered no new law or

facts.

Virginia Mason sought discretionary review of the trial court’s ruling

directing it to produce documents, directing a CR 26(i) conference, and reserving

ruling on the plaintiff’s motion to direct the special master to produce documents. 5

Later, Virginia Mason moved for discretionary review of whether it was allowed to

have ex parte contact with former employees whose care may have given rise to

liability and whether counsel was permitted to invoke the common interest

privilege.

Virginia Mason argued that Loudon did not apply to doctors whose conduct

may give rise to the hospital’s liability. Virginia Mason also argued that review

was necessary because without it, it was “forced to defend this case through verdict

without access to those very providers whose care is alleged to form the basis of

vicarious liability against it.” Mot. for Discr. Rev. at 31. (Wash. Ct. App. No.

83526-2-I (2022)).

While that motion was pending, Snyder moved for production of the

documents provided to the special master and quality assurance documents. After

Virginia Mason did not seek this court’s review of these issues.

Snyder v. Virginia Mason, No. 104136-5

those motions were denied, Snyder moved for a default judgment on liability.

Snyder contended that Virginia Mason was “secretly educating, preparing and

coaching . . . critical fact witnesses, directly and through third parties,” as well as

willfully violating Loudon. CP at 3656. Snyder stressed that Virginia Mason

represented it was unable to contact his nonparty doctors while actively doing so.

He argued that Virginia Mason “secretly provided strategy, litigation information

and coaches to [Drs. Chew, Downey, and Aranson] for months, to shape and

influence their testimony for deposition and trial” and that their testimony was

irremediably spoiled. CP at 3657-59. “Because that evidence is ‘spoiled and lost

forever’ due to the improper actions of [Virginia Mason],” he contends, default

judgment is the only remedy. CP at 3659.

The trial court found Virginia Mason had violated Loudon. The court denied

the motion for default judgment on the grounds that the record lacked sufficient

information to determine whether Snyder had been substantially prejudiced. The

trial court indicated it would entertain a renewed motion.

Snyder filed a conditional motion for discretionary review, contending that a

defendant who violated Loudon has the burden of disproving prejudice, that

communications in violation of Loudon are not protected by privilege, and that

only communications that reflect the inner workings of a quality improvement

Snyder v. Virginia Mason, No. 104136-5

committee are protected from discovery when the committee includes a participant

who was not screened from the litigation at issue.

A Court of Appeals commissioner granted review of Virginia Mason’s

motion in full and of Snyder’s motion in part. She limited Snyder’s issues to

“whether a showing of prejudice is required for sanctions for Loudon violations

and whether and to what extent a quality improvement (QI) committee member’s

participation in the litigation precludes the hospital’s assertion of the QI privilege.”

Comm’r’s Ruling Granting Discr. Rev., Snyder v. Virginia Mason Med. Ctr., No.

85326-2-I, at 2 (Wash. Ct. App. May 9, 2022).

The Court of Appeals affirmed. Snyder v. Virginia Mason Med. Ctr., 34 Wn.

App. 2d 146, 566 P.3d 873, review granted, 5 Wn.3d 1001 (2025). The Court of

Appeals concluded that Virginia Mason had violated Loudon by communicating ex

parte without Snyder’s consent, that Snyder bore the burden of establishing

prejudice, that his ability to establish prejudice is a factor in the appropriate

sanction, and that the failure to screen Dr. Glenn from this litigation did not waive

the protections of the quality improvement statute. Id. at 152-53.

Both sides petitioned for review. We granted both petitions.6

The Washington Defense Trial Lawyers; the University of Washington and the University of Washington School of Medicine; the Washington State Healthcare Defense Law Firms; and the Washington State Medical Association, Washington State Hospital Association, and the American Medical Association have submitted amici briefs in support of Virginia Mason. The Washington Association for Justice Foundation has submitted an amicus brief in support of Snyder.

Snyder v. Virginia Mason, No. 104136-5

ANALYSIS

A trial court’s discovery rulings are generally reviewed for abuse of

discretion. Cedell v. Farmers Ins. Co. of Wash., 176 Wn.2d 686, 694, 295 P.3d 239

(2013) (citing T.S. v. Boy Scouts of Am., 157 Wn.2d 416, 423, 138 P.3d 1053

(2006)). We review the trial court’s interpretation of law de novo. Hermanson v.

MultiCare Health Sys., Inc., 196 Wn.2d 578, 585, 475 P.3d 484 (2020).

This case is part of a long line of cases concerning the scope of the doctorpatient privilege in personal injury and wrongful death actions, the scope of

corporate attorney-client privilege in such actions, and the scope of the corporate

attorney-client privilege once the employment relationship has ended. We begin

with a brief discussion of the leading cases.

Loudon was a wrongful death action brought by the father of a son who had

been seriously injured in a car accident in Washington. See 110 Wn.2d at 676.

After doctors in Washington had released the son from the hospital, he returned

home to Oregon and saw other doctors. Id. Not long afterward, the son died of

complications related to the accident. Id. His father brought a wrongful death

action against his son’s Washington doctors and hospital, alleging that their

medical negligence caused his son’s death. Id. He did not sue the Oregon doctors

and voluntarily provided their records to the defense. Id. Contending that doctor15

Snyder v. Virginia Mason, No. 104136-5

patient confidentiality had been waived, defense counsel also moved for ex parte

contact with the son’s Oregon doctors. Id.

Loudon surveyed cases from around the country, which were split on

whether defense counsel was allowed to have ex parte communications with the

plaintiff’s nonparty doctors. Id. at 677 (collecting cases). The Loudon court

concluded limiting such contact was appropriate for three reasons. First, allowing

defense counsel to communicate with the plaintiff’s nonparty doctors without the

plaintiff’s knowledge and consent could have a chilling effect on the doctor-patient

relationship because at least some patients would be less likely to seek medical aid.

Id. at 679. Second, doctors themselves have an interest in avoiding inadvertent

improper disclosure of patient confidence in such ex parte conversations,

especially as such disclosures could give rise to liability. Id. at 680. Third, such ex

parte conversations could lead to disputes when counsel’s recollection differs from

the doctor’s, which may require defense counsel to testify as an impeachment

witness. Id. To avoid these consequences, the court unanimously adopted the

Loudon rule, which requires the defense to use formal discovery rules.

Based on Loudon, this court concluded ex parte contact between defense

counsel and a nonparty doctor’s attorney is also improper. Smith v. Orthopedics

Int’l, Ltd., 170 Wn.2d 659, 668, 244 P.3d 939 (2010) (Alexander, J., lead opinion);

id. at 678 (C. Johnson, J., concurring/dissenting). Smith was a wrongful death

Snyder v. Virginia Mason, No. 104136-5

action brought by the surviving husband of a woman who contracted a deadly

infection after a spinal surgery. The defense called one of the plaintiff’s doctors,

Dr. Johansen, as a fact witness. Id. at 663. During trial, it became clear that

defense counsel had sent Dr. Johansen’s lawyer the plaintiff’s trial brief and a copy

of the deposition of the plaintiff’s expert, among other documents relevant to the

case, and that the doctor had reviewed some of that material before testifying. Id.

Defense counsel had also left a voicemail for the doctor’s attorney telling her that

the plaintiff’s expert had been critical of the care Dr. Johansen had provided. Id. at

679 (C. Johnson, J, concurring/dissenting).

Seven justices agreed that the communications violated Loudon. Id. at 661

(Alexander, J., lead opinion); id. at 678 (concurring & dissenting opinion of C.

Johnson, J., concurring/dissenting). The lead opinion, signed by three justices,

emphasized that Loudon and subsequent cases prohibited not just ex parte

interviews, but ex parte contact and communications. Id. at 666 (citing Holbrook v.

Weyerhaeuser Co., 118 Wn.2d 306, 309, 822 P.2d 271 (1992); Carson v. Fine, 123

Wn.2d 206, 227, 867 P.2d 610 (1994)). “[T]he prohibition on ex parte contact,

which we set forth in Loudon, is broad and not confined to merely limiting

interviews by defense counsel with a plaintiff’s treating physician.” Id.

The lead opinion also emphasized two reasons to apply the Loudon rule

broadly: first, to protect the sanctity of the doctor-patient relationship, and second,

Snyder v. Virginia Mason, No. 104136-5

to protect the treating doctor’s role as a fact witness by guarding them from

becoming a witness for the defense. Id. at 667-68.

Four justices joined the lead opinion in concluding that the defendant

hospital’s contacts with the plaintiff’s doctor violated Loudon. Id. at 678 (C.

Johnson, J., concurring/dissenting). Two justices would have limited Loudon to

prohibiting defense counsel from directly seeking or soliciting information from

the plaintiff’s nonparty doctors ex parte. Id. at 675 (Fairhurst, J., concurring).

The rule set forth in Loudon and Smith has been limited in the context of a

hospital’s current employees in light of the corporate attorney-client privilege. See

Youngs v. PeaceHealth, 179 Wn.2d 645, 664, 316 P.3d 1035 (2014). The plaintiffs

in Youngs had brought medical malpractice actions against hospitals that had

provided them care. Id. at 651, 653-54. They objected to the defendant having ex

parte contact with nonparty doctors who still worked at the defendant hospital. Id.

at 654. The court allowed such contacts but with significant limitations. When a

doctor-patient relationship exists between the plaintiff and an employee of the

defendant hospital, Youngs limits such ex parte contact communications to the facts

of the alleged negligent event. Id. at 664, 671.

Youngs is grounded in the statutory attorney-client privilege and Upjohn Co.

v. United States, 449 U.S. 383, 386, 390, 101 S. Ct. 677, 66 L. Ed. 2d 584 (1981).

Youngs, 179 Wn.2d at 651; see also RCW 5.60.060(2)(a). The court rejected the

Snyder v. Virginia Mason, No. 104136-5

hospital’s argument “that Upjohn completely trumps Loudon.” Youngs, 179 Wn.2d

at 652. Instead, it harmonized the attorney-client and doctor-patient privileges into

a new rule:

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 communications with

a plaintiff’s nonparty treating physician only where the communication

meets the general prerequisites to application of the attorney-client

privilege, 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.

Id. at 179 Wn.2d at 653 (footnote omitted) (citing Haines v. Liggett Grp., Inc., 975

F.2d 81, 90 (3d Cir. 1992)).

We have declined to extend Youngs to former employees. Newman v.

Highland Sch. Dist. No. 203, 186 Wn.2d 769, 777, 782, 381 P.3d 1188 (2016). In

Newman, a high school student sustained a head injury during a football practice,

was allowed to play the game even though he showed signs of a concussion, and

consequently suffered a permanent brain injury. Id. at 774-75. Before trial, the

school’s counsel interviewed several former football coaches and appeared on their

behalf at depositions. The school argued that these former employees should be

treated the same as current employees for the purposes of the corporate attorneyclient privilege. Id. at 783.

Snyder v. Virginia Mason, No. 104136-5

While recognizing that some courts had accepted the argument that former

employees should be treated the same as current employees for purposes of

corporate attorney-client privilege, this court rejected that argument. Id. at 782

(citing In re Allen, 106 F.3d 582, 605-06 (4th Cir. 1997) (collecting cases)).

Newman reasoned:

Highland’s argument for extending the attorney-client privilege

to its communications with the former coaches emphasizes that these

former employees may possess vital information about matters in

litigation, and that their conduct while employed may expose the

corporation to vicarious liability. These concerns are not unimportant,

but they do not justify expanding the attorney-client privilege beyond

its purpose. The underlying purpose of the corporate attorney-client

privilege is to foster full and frank communications between counsel

and the client (i.e., the corporation), not its former employees. State v.

Chervenell, 99 Wn.2d 309, 316, 662 P.2d 836 (1983). This purpose is

preserved by limiting the scope of the privilege to the duration of the

employer-employee relationship. See RESTATEMENT (THIRD) OF THE

LAW GOVERNING LAWYERS § 73(2). Upon termination of the

employment relationship, the interests of employer and former

employee may diverge. But the attorney-client privilege belongs solely

to the corporation, and it may be waived or asserted solely by the

corporation, even to the detriment of the employee.

Id. at 781 (footnote omitted).

Most recently, in Hermanson, the court extended Youngs to a hospital’s

nurses and social workers, and to independent contractors working at a hospital

who are deemed the functional equivalent of employees. Hermanson, 196 Wn.2d

at 581. The court held that a defendant hospital’s legal team could have privileged

Snyder v. Virginia Mason, No. 104136-5

ex parte communications with nurses, social workers, and Dr. Patterson, an

independent contractor, subject to the limitations imposed in Youngs. Id.

Hermanson analogized Dr. Patterson to an employee covered by corporate

attorney-client privilege for several reasons. First, it recognized that Dr. Patterson

himself had a principal-agent relationship with the hospital because the hospital

had the right to control the details of his work. Id. at 587-88. These facts

distinguished Dr. Patterson from the former employees in Newman, who did not

have a principal-agent relationship with their former employer, “‘c[ould] no longer

bind the corporation and no longer owe[d] duties of loyalty, obedience, and

confidentiality.’” Id. at 588 (alterations in original) (quoting Newman, 186 Wn.2d

at 780). Second, the court concluded Dr. Patterson was the functional equivalent

of an employee due to the nature of his work and his contract with his direct

employer and the hospital. Id. at 589-90. Thus, the court concluded the hospital

was entitled to have privileged ex parte contact with Dr. Patterson. Id.

MultiCare, the defendant in Hermanson, had argued that since the plaintiff

was attempting to hold it vicariously liable for Dr. Patterson’s conduct, it was

entitled to have privileged ex parte contact with Dr. Patterson. Id. at 590 (citing

court document). The court rejected that approach. Id. Instead, it concluded that

whether the hospital could have limited, privileged ex parte communications with

Dr. Patterson was a separate question from whether the hospital was vicariously

Snyder v. Virginia Mason, No. 104136-5

liable for Dr. Patterson’s conduct. Id. The court also rejected MultiCare’s

argument that it should be allowed to have ex parte communications with a treating

physician when it had entered into a representation agreement with that physician.

Id. at 590 n.1. The court observed that “MultiCare’s argument would allow any

corporation to circumvent a plaintiff’s physician-patient privilege by entering into

a representation agreement with a treating physician, rendering the physicianpatient privilege moot whenever the corporation chooses.” Id.

In a separate line of cases, Washington courts have recognized a “common

interest doctrine.” Under this doctrine, “when multiple parties share confidential

communications pertaining to their common claim or defense, the communications

remain privileged as to those outside their group.” Sanders v. State, 169 Wn.2d

827, 853, 240 P.3d 120 (2010) (citing Broyles v. Thurston County, 147 Wn. App.

409, 442, 195 P.3d 985 (2008)). The doctrine is an exception to the general rule

that sharing attorney-client privileged communications or documents waives the

attorney-client privilege. Id. at 853-54.

With this history in mind, we turn to the issues before us.

1. Did Virginia Mason violate Loudon?

The trial court concluded Virginia Mason violated Loudon through its ex

parte communications with Drs. Chew, Downey, and Aranson. We agree.

Snyder v. Virginia Mason, No. 104136-5

Virginia Mason does not deny that these communications occurred. Instead,

it offers several different arguments for why Loudon should not apply. In essence,

it, strongly supported by amici, argues that Loudon should be limited to cases

where the nonparty doctor was not potentially implicated in the plaintiff’s injury.

First, Virginia Mason attempts to distinguish Loudon and its progeny on the

theory that in those cases, the nonparty doctors were not implicated in the care that

gave rise to the cause of action.

But we note that in Smith, the improper ex parte communications began with

a phone call from the hospital’s counsel to the nonparty doctor’s counsel informing

him that the plaintiff’s expert was critical of the doctor’s work. 170 Wn.2d at 679

(C. Johnson, J., concurring/dissenting). That fact was not enough to defeat

application of Loudon in the minds of a majority of the court. Virginia Mason also

suggests the plaintiff in Youngs conceded that defense counsel could have ex parte

contact with doctors whose conduct was at issue, regardless of whether those

doctors were parties to the case. Virgina Mason’s Suppl. Br. at 3 n.2 (citing

Youngs’ response to an amicus brief). We find no clear concession in that brief.

But even if the party made such a concession—which is far from clear—the rule

articulated in Youngs did not turn on whether the corporate employees’ conduct

was at issue. Put plainly, this court has never made application of the Loudon rule

turn on whether the nonparty doctor was potentially at fault, and to allow the

Snyder v. Virginia Mason, No. 104136-5

protection afforded by Loudon to be evaded by the defense counsel without leave

of the court would gut our holding in that case.

More importantly, nothing in Loudon or subsequent cases suggests that the

doctor-patient privilege has less force when the doctor may have been negligent or

otherwise at fault. Loudon gave three reasons for its holding—to prevent chilling

the doctor-patient relationship, to avoid inadvertent improper disclosure of patient

confidences, and to avoid a situation where defense counsel might be called upon

to be an impeachment witness. 110 Wn.2d at 678-80. None of these three reasons

have any different force when the doctor might have been at fault.

Second, Virginia Mason argues that once a doctor is allegedly at fault, there

should no longer be any concern about the defense shaping their testimony through

ex parte contact. Regardless of whether that is true in the abstract, Snyder himself

has not alleged that these doctors are at fault or named them as parties. Adopting

Virginia Mason’s approach would also gut Loudon by effectively allowing the

defense to decide which doctors might be at fault and thus outside of Loudon’s

scope.

Third, Virginia Mason contends, prior to Newman, it was generally

understood that “corporate attorney-client privilege extends to communications

between corporate counsel and former employees with respect to relevant

knowledge gained during their relationship with the company.” Virginia Mason’s

Snyder v. Virginia Mason, No. 104136-5

Suppl. Br. at 4 & n.3 (citing In re Coordinated Pretrial Procs. in Petrol. Prod.

Antitrust Litig., 658 F.2d 1355, 1361 (9th Cir. 1981); In re Allen, 106 F.3d 582,

605-07 (4th Cir. 1997); Exp.-Imp. Bank of the U.S. v. Asia Pulp & Paper Co., 232

F.R.D. 103, 112 (S.D.N.Y. 2005)). But none of the three cases it cites attempted to

harmonize a corporate attorney-client privilege with a doctor-patient privilege.

Instead, these cases concerned antitrust, a civil rights suit between a government

watchdog group and a state attorney general, and a debtor-creditor dispute,

respectively. Whatever the general understanding in the industry might have been,

such communications are inconsistent with the clear mandates of Loudon and

Newman.

Fourth, Virginia Mason argues that it is entitled to privileged ex parte contact

with the plaintiff’s nonparty doctors because these doctors have a contractual duty

under their employment agreements to cooperate with Virginia Mason and the

defense counsel Virginia Mason provides to them to defend against claims accruing

from their work at the hospital. Contra Newman, 186 Wn.2d at 782. In support,

Virginia Mason cites a federal district court case concerning an interlocutory

discovery matter in a dispute between a business and former employees. See

Infosystems, Inc. v. Ceridian Corp., 197 F.R.D. 303 (E.D. Mich. 2000). Virginia

Mason calls our attention to this passage:

The Court . . . concludes that counsel’s communications with a

former employee of the client corporation generally should be treated

Snyder v. Virginia Mason, No. 104136-5

no differently from communications with any other third-party fact

witness. Admittedly, there are exceptions to this general rule. As noted

earlier, privileged communications which occur during the period of

employment do not lose their protection when the employee leaves the

client corporation. Moreover, there may be situations where the former

employee retains a present connection or agency relationship with the

client corporation, or where the present-day communication concerns a

confidential matter that was uniquely within the knowledge of the

former employee when he worked for the client corporation, such that

counsel’s communications with this former employee must be cloaked

with the privilege in order for meaningful fact-gathering to occur.

Id. at 306 (citations omitted) (citing Valassis v. Samelson, 143 F.R.D. 118, 124

(E.D. Mich. 1992)); see also Virginia Mason’s Suppl. Br. at 23. From this,

Virginia Mason reasons, it should be allowed privileged ex parte contact with its

former employees it has a duty to defend and indemnify, even though they have a

doctor-patient relationship with Snyder.

But Infosystems did not involve a doctor-patient privilege, and this court was

aware when it decided Newman that some other courts had extended corporate

attorney-client privilege to former employees. Newman, 186 Wn.2d at 782. We

find no reason to distinguish Newman here. Limiting privileged ex parte contact

with nonparty doctors, as required by our precedent, does not prevent cooperation

with Virginia Mason and the defense counsel Virginia Mason provides them to

defend against claims accruing from their work at the hospital. Youngs, 179 Wn.2d

at 670.

Snyder v. Virginia Mason, No. 104136-5

Fifth, Virginia Mason argues that its communications with the three nonparty

doctors should be deemed privileged under the common interest doctrine as

recognized in Sanders, 169 Wn.2d 827. Under this doctrine, parties who share

common interests are allowed to share communications and documents with each

other without waiving attorney-client privilege. Id. at 853. The Court of Appeals

did not resolve this issue because it concluded the record did not establish that

Virginia Mason had a common interest or joint representation agreement. Snyder,

34 Wn. App. 2d at 166. Virginia Mason argues, correctly, that the doctrine may

apply even in the absence of a joint representation agreement. See, e.g., Kittitas

County v. Allphin, 195 Wn. App. 355, 368, 381 P.3d 1202 (2016).

Sanders concerned (among other things) the scope of the Public Records Act

exception for attorney-client privileged documents. 169 Wn.2d 827. The court

concluded that the attorney-client privilege exception could apply to documents

shared between government agencies so long as the common interest doctrine

applied. Id. at 840, 853. Nothing in Sanders considered the doctor-patient

privilege or anything analogous.

Virginia Mason and its supporting amici urge this court to graft this

“common interest” doctrine into the Loudon/Newman line of cases and create an

exception for cases where the defendant hospital and the plaintiff’s nonparty

doctors’ interests align. In essence, Virginia Mason asks the court to use the

Snyder v. Virginia Mason, No. 104136-5

common interest doctrine to do in this case what it declined to do with the

corporate attorney-client privilege doctrine in Youngs—hold that the defendant’s

interest in privileged ex parte communications with the plaintiffs’ doctors

completely trumps Loudon.

But Snyder has not named the three doctors as defendants or identified them

in his complaint or his default judgment motion as at fault. And while no formal

joint representation agreement is required, Virginia Mason must make a sufficient

factual showing of a common legal interest and shared expectation of

confidentiality between itself and the ex-employee doctors before this doctrine

might apply. See Kittitas County v. Allphin, 190 Wn.2d 691, 713-15, 416 P.3d

1232 (2018). The trial court found that Virginia Mason had made no such

showing. CP at 1243. We therefore reject Virginia Mason’s argument as factually

unsupported and because extending this doctrine to any doctor the defendant

hospital decides might be implicated in a plaintiff’s injury, at least without leave of

the court, would undermine Loudon.

Sixth, Virginia Mason argues that it should be allowed to have privileged ex

parte contact with Snyder’s nonparty doctors under the corporate attorney-client

privilege recognized in Youngs. But the privilege recognized in Youngs was

limited to the functional equivalent of current employees. 179 Wn.2d at 653; see

Snyder v. Virginia Mason, No. 104136-5

also Newman, 186 Wn.2d at 774-75; Hermanson, 196 Wn.2d at 581.7 We have

explicitly declined to extend it in Newman, and Virginia Mason does not show that

case is distinguishable or should be overruled.

We stress that under the Loudon line of cases, defense counsel is permitted

to speak with any or all of the plaintiff’s nonparty doctors. These cases merely

require the defense to have those communications either with the plaintiff’s

knowledge and consent or through the formal discovery rules.8

We conclude that Loudon governs this case and none of the reasons Virginia

Mason gives to depart from Loudon are persuasive. We affirm the courts below

that Loudon applies and that Virginia Mason’s ex parte contact with Snyder’s

nonparty doctors violated the principles that case set forth.9

Even if Youngs applied, the case limited privileged communications to the facts of the alleged incident. See 179 Wn.2d at 653. The record suggests much more than that happened here. 8

We respectfully disagree with our dissenting colleagues that Loudon and its progeny do not apply to former employees whose conduct is at issue. These cases set forth general rules and, in several cases, were applied in situations where the former employees’ conduct was at issue. See Newman, 186 Wn.2d 769; Smith, 170 Wn.2d at 679 (C. Johnson, J., concurring/dissenting); Loudon, 110 Wn.2d at 677-78. We also disagree that Youngs can be extended to these facts given our clear holding to the contrary in Newman. 186 Wn.2d at 781. By their plain terms, these cases apply and, as Virginia Mason has not shown either that they are incorrect and harmful or that their basis has been eroded, they remain good law.

We also respectfully disagree with our dissenting colleagues that the limitations imposed by Loudon and its progeny prevent defendants from fully investigating their own potential liability, or from fulfilling their indemnification responsibilities. Nothing in our case law prevents defendants from communicating with their former employees. They merely require the defense to do so either with the consent of the plaintiff or through formal discovery rules. We leave for another day whether a trial court could grant the defendant leave for privileged ex parte communications with former employees as Virginia Mason did not first seek such leave. 9

For the first time on review, Virginia Mason argues that limiting communications between the nonparty doctors and the defendant hospital violates the nonparty doctors’ equal protection and

Snyder v. Virginia Mason, No. 104136-5

2. Is default judgment on liability warranted?

We review a trial judge’s decisions on discovery sanctions for abuse of

discretion. Magaña v. Hyundai Motor Am., 167 Wn.2d 570, 582, 220 P.3d 191

(2009) (citing Wash. State Physicians Ins. Exch. & Ass’n v. Fisons Corp., 122

Wn.2d 299, 338, 858 P.2d 1054 (1993)). “A trial court abuses its discretion when

its order is manifestly unreasonable or based on untenable grounds,” such as an

application of the incorrect legal standard. Wash. State Physicians Ins. Exch., 122

Wn.2d at 339. Discovery sanctions should be calculated to deter, punish,

compensate, and educate. Id. at 356. Generally, the sanction should be

proportional to the violation and should be the least severe sanction that is

adequate. Magaña, 167 Wn.2d at 590.

In this case, the trial judge denied Snyder’s motion for a default judgment as

a sanction for violating Loudon without prejudice, remarking that the record was

not sufficiently developed to determine the appropriate sanction. The Court of

Appeals granted review limited to whether the plaintiff bears the burden of

establishing prejudice. It concluded that the moving party bore the burden of

establishing prejudice. Snyder, 34 Wn. App. 2d. at 171. However, “[t]he extent to

due process rights. We decline to reach this issue under RAP 2.5(a) because it was not presented to the trial court and Virginia Mason does not establish that it falls within an exception to the general rule that courts will not consider issues raised for the first time on appeal.

Snyder v. Virginia Mason, No. 104136-5

which the patient can show prejudice remains a factor bearing on the appropriate

sanction.” Id.

Snyder argues that he has been deprived of the ability to try his case without

the hospital influencing witnesses through ex parte contacts. Snyder argues that he

should not bear the burden of showing he was prejudiced by improper ex parte

contact in order to be entitled to relief. Instead, he contends, he should be entitled

to relief unless Virginia Mason can show he was not prejudiced.

We faced a somewhat similar situation in Smith. There, the hospital’s

defense counsel violated Loudon through ex parte contacts with one of the

plaintiff’s nonparty doctors, Dr. Johansen, who the defense had called as a fact

witness at trial. Smith, 170 Wn.2d at 661 (Alexander, J., lead opinion); id. at 678

(C. Johnson, J. concurring/dissenting). This came to light at trial. Plaintiff’s

counsel learned of this improper ex parte contact during trial while crossexamining Dr. Johansen. Id. at 663-64. Smith unsuccessfully moved for a

mistrial. Id.

After the jury returned a defense verdict, the plaintiff unsuccessfully moved

for a new trial where Dr. Johansen would be excluded, arguing “‘there’s no way to

unring the bell.’” Id. at 664. The trial court denied the motion. Id. The Court of

Appeals affirmed on several grounds, including its own conclusion that the

plaintiff had not established prejudice. Id.

Snyder v. Virginia Mason, No. 104136-5

On review, the plaintiff argued she was entitled to a new trial regardless of

whether she could demonstrate prejudice. The lead opinion rejected that approach,

arguing that the moving party must show harm in order to be entitled to relief. Id.

at 672 (citing Ferry County v. Concerned Friends, 155 Wn.2d 824, 831, 123 P.3d

102 (2005)). It also rejected the plaintiff’s argument that in such cases,

automatically excluding Dr. Johansen’s testimony on a retrial was necessarily

appropriate. “To require a new trial and exclusion of the nonparty treating

physician’s testimony as an automatic response to all Loudon violations, in our

judgment, would be an unnecessarily harsh result and would not take into

consideration the nuances of particular cases.” Id.

The two justices who joined the lead opinion concluded that to warrant a

new trial, the plaintiff had to show harm and had the burden of making that

showing. Id. The four-justice concurrence/dissent would have ordered a new trial

whenever Loudon was violated. Id. at 679 (C. Johnson, J., concurring/dissenting)

It concluded that to do otherwise would be to put an insurmountable burden on an

innocent party. Id. at 678-79. As the remaining justices did not reach the issue,

there was no controlling majority on the question.

Snyder argues that it is inequitable to put the burden on him to show he was

prejudiced under these facts instead of on Virginia Mason to show he was not. He

contends that putting the burden on the plaintiff incentivizes violations of Loudon.

Snyder v. Virginia Mason, No. 104136-5

He notes that the privilege log produced in relation to the Loudon violations lists

over 400 items that have not been disclosed, which, he says, indicates extensive

efforts to shape the testimony of his nonparty doctors.

The trial court denied Snyder’s motion for default judgment because it

“lacks the information to determine if the violation substantially prejudiced

plaintiff.” CP at 4214. The Court of Appeals affirmed, finding that “[a]s a Loudon

violation is a type of discovery violation, we see no basis for crafting a different

standard that shifts the burden to the party that violated the rule to prove the

absence of some degree of prejudice for every Loudon violation.” Snyder, 34 Wn.

App. 2d at 171.

Treating a Loudon violation as merely a discovery violation is insufficient to

safeguard the policies underlying Loudon that go beyond the discovery context.

The Loudon rule serves to “protect[] the doctor-patient fiduciary relationship” and

to “protect[] the physician’s ‘interest in avoiding inadvertent wrongful

disclosures,’” in addition to “aid[ing] in proper trial administration, preventing the

occasion from arising where defense counsel might be called to testify as an

impeachment witness.” Youngs, 179 Wn.2d at 659-60 (quoting Loudon, 110 Wn.2d

at 680). Loudon rests on the premise that ex parte contact with a plaintiff/patient’s

health care providers is harmful to the fiduciary relationship, to the trust it is built

on, and ultimately to health care outcomes. For this reason, it is appropriate to

Snyder v. Virginia Mason, No. 104136-5

recognize a baseline of prejudice that flows from any Loudon violation, regardless

of whether it negatively impacts a plaintiff’s litigation interests. The Magaña test

for discovery sanctions, which the Court of Appeals applied here, requires that “the

opposing party was substantially prejudiced in its ability to prepare for trial,” 167

Wn.2d at 584 (emphasis added)—but that inquiry is simply insufficient to account

for the significant interests protected by the Loudon rule.

Four justices in Smith recognized that harm to the physician-patient

fiduciary relationship inheres in every Loudon violation, and we now adopt a

presumed prejudice standard to capture the inherent harm of Loudon. We hold that

upon finding a Loudon violation, prejudice is presumed and plaintiffs need not

prove an actual impact on the litigation in order to obtain relief. Imposing such a

burden would “mudd[y] [Loudon’s policy] choice by condemning what occurred in

this case but then concluding no remedy should be available to the ‘innocent’

party” and “plac[ing] an almost insurmountable burden on the party that has done

nothing wrong.” Smith, 170 Wn.2d at 678 (C. Johnson, J., concurring/dissenting).

In determining the appropriate remedy, the trial court has discretion to weigh

the extent of prejudice, which can certainly include litigation impact. Depending

on the degree of prejudice shown, an appropriate remedy might range from a

monetary sanction on the low end to a default judgment of liability on the high

end.

Snyder v. Virginia Mason, No. 104136-5

In this case, related to the question of determining prejudice and assessing an

appropriate remedy is the need to examine the records Virginia Mason withheld on

grounds of privilege in relation to the Loudon violation. Snyder contends that

under the principles embraced in Cedell, he is entitled to at least in camera review

of the documents disclosed in Virginia Mason’s privilege log, and not merely the

handful the trial court reviewed on the special master’s recommendation. We

agree.

Cedell concerned an insurance bad faith claim where the plaintiff sought

production of the insurance company’s claim file. 176 Wn.2d at 690. Bruce

Cedell’s home had been severely damaged in a fire. He contended his insurance

company delayed processing his claim for months and, once it did act, made an

offer well below that which its own investigation estimated the covered damages to

be. The court concluded, relevantly, that once the insured made a showing that the

insurer acted in bad faith, the court would review the materials that that the insurer

claimed to be privileged. Id. at 700. If the court concluded that there was a

foundation to permit a bad faith claim to proceed, the attorney-client privilege

would be deemed waived. Id.

Cedell turned on the insurance company’s quasi-fiduciary obligation to its

insured. Id. at 698. The quasi-fiduciary obligation of an insurer to its insured is

analogous to the obligation a doctor has to their patient not to disclose privileged

Snyder v. Virginia Mason, No. 104136-5

information. Indeed, the risk of such disclosure is part of the harm that Loudon

seeks to protect against. Requiring proof of prejudice flowing from a Loudon

violation while at the same time denying access to relevant facts imposes an

“insurmountable burden” on the plaintiff. Smith, 170 Wn.2d at 678 (C. Johnson, J.,

concurring/dissenting). While the trial court has discretion to determine remedies,

this discretion cannot be properly exercised without a reasonable assessment of all

relevant records that could establish prejudice. We vacate the trial court’s denial of

Snyder’s motion for default judgment and remand for reconsideration with a

presumption of prejudice from Virginia Mason’s Loudon violations. The trial

court’s reconsideration of remedy should be based on a full review of records in

relation to the Loudon violation, including in camera review where necessary.

3. Did Virginia Mason waive the protection of the quality improvement

statute?

Virginia Mason asserts the quality improvement committee privilege in this

case. Washington’s quality improvement statute directs hospitals to “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.” RCW 70.41.200(1). The purpose of the quality

improvement statute is to improve health care by creating a system where health

care professionals can candidly review their own work and the work of their

Snyder v. Virginia Mason, No. 104136-5

colleagues. Lowy v. PeaceHealth, 174 Wn.2d 769, 774, 280 P.3d 1078 (2012)

(citing Coburn v. Seda, 101 Wn.2d 270, 275, 279, 677 P.2d 173 (1984)).

This statute “requires that hospitals collect information concerning their

patients’ ‘negative health care outcomes’ and protects this information from civil

discovery.” Youngs, 179 Wn.2d at 666 (quoting and citing RCW 70.41.200(1)(e),

(3)). The legislature was concerned that making this information subject to

discovery would create a disincentive for effective reporting and candid discussion.

Lowy, 174 Wn.2d at 774. To attempt to guard against that

[i]nformation 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.

RCW 70.41.200(3).

While the information specifically prepared for and collected by a quality

improvement committee is privileged and not subject to disclosure, that privilege

is limited. Lowy, 174 Wn.2d at 787. It does not extend to information that “is

completely external to the hospital’s ‘careful self-assessment.’” Id. (quoting

Coburn, 101 Wn.2d at 274). The privilege also does not apply to documents that

simply went in or out of the quality improvement committee. Id. “But documents

Snyder v. Virginia Mason, No. 104136-5

created as part of the inner workings of the committee are privileged and disclosure

of those documents may not be compelled.” Id.

To prevent the quality improvement committee from becoming a way for

hospitals to avoid their discovery obligations, “members of the committee must be

screened from defense counsel in an action against the hospital for negligence or

medical malpractice.” Youngs, 179 Wn.2d at 657. “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 [quality improvement] process, allowing the [quality improvement]

committee to meet its statutory requirement to collect and maintain information

‘specifically for’ [quality improvement] purposes.” Id. at 669.

Dr. Glenn serves on Virginia Mason’s quality improvement committee. The

quality improvement committee investigated Snyder’s surgery. Snyder contends

that Dr. Glenn was not screened from the litigation. There is evidence in the record

that suggests this is true. Dr. Glenn received talking points from defense counsel

before meeting with one of Snyder’s nonparty doctors after Snyder filed this case,

and Dr. Glenn is on Virginia Mason’s witness list.

“Waiver occurs because the purpose of the privilege no longer exists.”

Carson, 123 Wn.2d at 214. As we noted in Lowy, “[t]he legislature was concerned

that if the data and other information generated by quality improvement

Snyder v. Virginia Mason, No. 104136-5

committees could be used against a hospital, it would create a disincentive for

hospitals to report effectively and evaluate candidly information concerning the

hospital’s experience.” 174 Wn.2d at 775. But that purpose—to avoid

disincentives for candor—no longer takes precedence where the quality

improvement committee’s inner workings have been tainted by the involvement of

personnel or the receipt of information that by law clearly should not have been

there in the first place. Here, the involvement of Dr. Glenn tainted the quality

improvement committee’s work, as it is clear he cannot act as both a member of

the quality improvement committee and a participant in the litigation. The record

demonstrates that he consulted with litigation counsel in the course of talking with

former Virginia Mason employees, and the trial court found a Loudon violation. At

this juncture, neither the trial court nor a special master has reviewed the records

relating to this violation. Information relating to Dr. Glenn’s involvement as a

litigation witness and any records arising from his conversations with former

employees whose treatment of Snyder is at issue in the litigation cannot be

shielded under the quality improvement committee statutory privilege.

We vacate the trial court’s denial of Snyder’s motion to compel production

of quality improvement materials and remand for further proceedings including in

camera review where necessary.

Snyder v. Virginia Mason, No. 104136-5

CONCLUSION

Under Loudon, Virginia Mason was required to either use the formal

discovery procedures or obtain Snyder’s consent before communicating with his

nonparty doctors. Snyder, as the party seeking relief, does not bear the burden of

establishing prejudice; rather, prejudice is presumed. A hospital waives the quality

improvement statute privilege by failing to screen a doctor who sits on the quality

improvement committee from being involved in litigation. We affirm the courts

below in part and remand to the trial court for further proceedings consistent with

this opinion.

Snyder v. Virginia Mason, No. 104136-5

WE CONCUR:

Melody, J.

Snyder v. Virginia Mason Med. Ctr.

No. 104136-5

GORDON McCLOUD, J. (dissenting)—In Loudon v. Mhyre, this court held

that defense counsel may not communicate privately with a personal injury

plaintiff’s nonparty doctors who treated the plaintiff after the alleged negligence

occurred.1 Instead, the defendant must use formal discovery rules to communicate

with those doctors. To reach this result, we weighed competing and important values:

a patient’s interest in the privacy of their medical information and a defendant’s right

to investigate claims against them, communicate with counsel, and prepare a

defense. We held that the risks to patients’ privacy interests outweighed the burden

on the defendant of using formal discovery to communicate with a plaintiff’s

nonparty doctors who treated the plaintiff after the allegedly negligent incident.

In this case, we are faced with very different facts than those in Loudon. In

Loudon, the defendants sought ex parte (private) contact with doctors who treated

the plaintiff after the allegedly negligent incident. The plaintiff had not alleged that

those subsequent doctors were negligent, and those subsequent doctors had no

relationship to the defendants.

110 Wn.2d 675, 756 P.2d 138 (1988).

Snyder v. Virginia Mason Med. Ctr., No. 104136-5

(Gordon McCloud, J., dissenting)

By contrast, in this case, plaintiff Michael Snyder sued Virginia Mason

Medical Center (VMMC) for injuries resulting from surgery performed by doctors

employed by VMMC. The basis of Snyder’s claim is that the doctors involved in the

surgery were negligent, and he seeks to hold VMMC vicariously liable for those

doctors’ conduct. Snyder argues that VMMC’s ex parte contacts with these allegedly

negligent nonparty doctors violated Loudon.

But unlike Loudon, this case involves a defendant’s ability to communicate

with the very doctors whose care the plaintiff challenges in the lawsuit. And unlike

Loudon, this case involves a claim of vicarious liability based on that allegedly

negligent care. Thus, in this case, the nonparty doctors are both former employees

of the defendant and also essential witnesses for the defendant because their acts put

the defendant at risk of liability. Applying Loudon to bar free communication

between the defendant employer and its nonparty former employee doctors in this

context prevents the defendant from investigating or defending itself. It also prevents

the nonparty doctor accused of negligence from fully protecting their own interests.

The Loudon rule protects important interests. But the rule’s reach is not

unlimited. I would hold that Loudon does not bar ex parte contact between a

defendant and nonparty treating doctors who are employees or former employees of

the defendant and whose care gave rise to the plaintiff’s claim against the defendant.

Snyder v. Virginia Mason Med. Ctr., No. 104136-5

(Gordon McCloud, J., dissenting)

Additionally, even if Loudon did apply to such contact, I would hold that defense

counsel may engage in privileged, ex parte communication with such doctors under

our decision in Youngs, 2 even if the doctors are former employees of the defendant.

I therefore respectfully dissent.

FACTS AND PROCEDURAL HISTORY

In 2018, Snyder underwent surgery at VMMC. Clerk’s Papers (CP) at 2. As

alleged in the complaint, a catheter was misplaced during surgery; when it was

removed, Snyder experienced serious complications and ultimately suffered

permanent, disabling injuries. Id. at 2-3. Snyder later filed a medical malpractice

lawsuit against VMMC, alleging vicarious liability and corporate negligence, among

other claims. Id. at 3. 3 Both claims are based on the acts of VMMC’s then-employee

doctors.

It is now undisputed that first-year medical resident Dr. Molly Downey, fifthyear resident Dr. Weslee Chew, and vascular surgeon Dr. Nathan Aranson were

involved in the procedure. Id. at 2210, 2217 (deposition of Dr. Brandenberger). By

the time Snyder filed the lawsuit, all three doctors had left VMMC for other jobs.

Youngs v. PeaceHealth, 179 Wn.2d 645, 316 P.3d 1035 (2014).

The complaint originally named lead surgeon Dr. Jared Brandenberger as a codefendant. Snyder later successfully moved to dismiss Dr. Brandenberger as a named defendant. VMMC is the sole remaining named defendant.

Snyder v. Virginia Mason Med. Ctr., No. 104136-5

(Gordon McCloud, J., dissenting)

VMMC is a self-insured teaching hospital that provides professional liability

insurance to its employee doctors. VMMC has a contractual duty to indemnify the

employee doctor for any claims resulting from medical services the doctor renders

on behalf of VMMC, even if the claim is filed after termination of employment. See,

e.g., id. at 1532 (Dr. Aranson’s employment contract). The doctor has a contractual

duty to cooperate with VMMC in its investigation and defense of such claims, even

after termination of employment. Id.

After Snyder filed the lawsuit, VMMC’s defense counsel determined that Drs.

Aranson, Downey, and Chew had direct knowledge of the facts giving rise to the

complaint and would likely be deposed. Id. at 3972 (declaration of Karen Markwith).

VMMC contacted the doctors to notify them of the lawsuit and, pursuant to its

contractual obligation, arranged for separate counsel Jennifer Oetter to represent

each of them. Id.

During discovery, Snyder learned that ex parte communications had occurred

between VMMC (through its defense counsel, risk managers, and/or third-party

claims manager) and the nonparty doctors or their attorney Oetter. See id. at 1549-1607 (VMMC’s privilege log listing 460 items). Snyder also learned that a member

of VMMC’s quality improvement committee had personally visited Dr. Chew to

reassure him that VMMC supported him.

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(Gordon McCloud, J., dissenting)

Snyder argued that these communications violated Loudon. He sought

disclosure of the communications. VMMC moved for a protective order, arguing

that Loudon does not bar a defendant’s ex parte contact with nonparty doctors whose

care is at issue in the lawsuit and that the communications at issue were protected

from disclosure by the attorney-client privilege, the work product doctrine, and/or

the common interest privilege. Id. at 494-99.

The trial court rejected VMMC’s argument that Loudon does not apply to

former employee nonparty treating doctors whose care is at issue in the litigation.

Id. at 2089. It ruled that VMMC had violated Loudon and its progeny to the extent

that it engaged in ex parte communication with the former employee nonparty

doctors and/or those doctors’ counsel. Id. at 2090-91.

The trial court also denied VMMC’s motion for an order allowing it to have

ex parte, privileged communications with the nonparty doctors. Id. at 2187, 2557.

Snyder moved for default judgment as a sanction for the alleged Loudon

violations. Id. at 3656. The trial court denied the motion without prejudice, ruling

that at that time, the record lacked evidence to support a finding that any Loudon

violations substantially prejudiced Snyder. Id. at 4159. The trial court also denied

Snyder’s motion to compel production of certain documents that VMMC had

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(Gordon McCloud, J., dissenting)

identified as protected by the statutory quality improvement committee privilege. Id.

at 2905, 3964.

Both parties sought discretionary review. The Court of Appeals affirmed the

trial court’s determination “that the Loudon rule applies and prohibits ex parte

contact between VMMC counsel and the former employee nonparty physicians.”

Snyder v. Virginia Mason Med. Ctr., 34 Wn. App. 2d 146, 152, 566 P.3d 873 (2025)

(published in part).4 That court also held that VMMC’s failure to screen a quality

improvement committee member from defense counsel did not automatically waive

the statutory privilege against the compelled disclosure of quality improvement

documents. Id. at 153. Both parties sought review in this court, which we granted. 5

Wn.3d 1001 (2025).

The appellate court also held that the extent to which the plaintiff can show prejudice is a factor bearing on the appropriate sanction for a Loudon violation. The majority takes a different approach; it adopts a new rule that presumes prejudice from a Loudon violation. Because I conclude that VMMC’s contacts with the nonparty treating doctors in this case did not violate Loudon, I do not address the majority’s decision to change the law on this issue.

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(Gordon McCloud, J., dissenting)

ANALYSIS

I. Loudon, Smith,5 and Youngs do not bar a defendant from having ex parte

contact with an employee or former employee nonparty treating doctor

whose care gives rise to the plaintiff’s claim against the defendant

Today, the majority extends Loudon way beyond its facts to bar a defendant

from having any ex parte contact with a plaintiff’s nonparty treating doctor, even

when the plaintiff seeks to hold a defendant vicariously liable for allegedly negligent

care that the doctor provided while employed by the defendant. The majority’s

holding ignores important distinctions between this case and Loudon, including the

fact that this case implicates the statutory attorney-client privilege and an insurer’s

fiduciary relationship with its insured. The majority stretches Loudon’s rationale far

beyond its facts. And even if Loudon did apply in this context, I would extend the

rule in Youngs—which never considered this situation—to allow corporate counsel

to have confidential, privileged communications with former employee nonparty

doctors who have direct knowledge of the facts giving rise to the litigation.

A. Loudon and Smith involved a defendant’s contact with subsequent

treating doctors whose care was not implicated in the lawsuit

Our legislature has enacted a physician-patient privilege statute, which

“prohibits examining a physician in a civil action as to any information acquired in

Smith v. Orthopedics Int’l, Ltd., 170 Wn.2d 659, 244 P.3d 939 (2010) (plurality

opinion).

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attending a patient without his or her consent.” Carson v. Fine, 123 Wn.2d 206, 212,

867 P.2d 610 (1994) (citing RCW 5.60.060(4)). This statutory privilege serves

important purposes. It “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.’” Youngs, 179 Wn.2d

at 651 (alterations in original) (internal quotation marks omitted) (quoting Smith,

170 Wn.2d at 667).

But the privilege is not absolute. “Once a patient decides to file a medical

malpractice action and disclose that which had been confidential, he or she cannot

insist on continued confidentiality from her physicians regarding the condition at

issue based on the fiduciary nature of their relationship.” Carson, 123 Wn.2d at 219.

Thus, when a patient voluntarily places their physical or medical condition in issue

in litigation, the patient waives the privilege as to that condition and as to all doctors

who treated the patient for that condition, subject to limitations imposed by court

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rule. Youngs, 179 Wn.2d at 658 (quoting LAWS OF 1986, ch. 305, § 101(4)(b)); RCW

5.60.060(4)(b). 6

In Loudon, we added a gloss to the privilege statute and the waiver rule. We

considered “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.” Loudon, 110 Wn.2d at 675-76. In that case, the plaintiff

sued two doctors, alleging malpractice. The defendant doctors sought ex parte

contact with the plaintiff’s subsequent treating doctors. These subsequent treating

doctors had no relationship to the defendant doctors, and the plaintiff did not allege

that their care was negligent. This court concluded that as a matter of public policy,

defense counsel could not have ex parte contact with these nonparty doctors and

must use formal discovery procedures to contact them.

To reach this conclusion, we weighed the potential risks to the patient-plaintiff

in allowing ex parte defense contact with the plaintiff’s treating doctors against the

burden on the defendant of communicating with those doctors only through formal

discovery. We described the risks as follows: the risk that the doctor would

This waiver rule was originally a judge-made rule that courts applied on a caseby-case basis. Youngs, 179 Wn.2d at 657. However, the legislature codified the waiver rule in 1986. The statute now expressly provides that a plaintiff waives the privilege 90 days after filing an action for personal injuries or wrongful death. RCW 5.60.060(4)(b).

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inadvertently disclose irrelevant, privileged medical information to defense counsel

(i.e., medical information outside the scope of the plaintiff’s waiver of physicianpatient privilege); the related risk that such an inadvertent disclosure could expose

the doctor to personal liability; and the risk of chilling the physician-patient

relationship if a patient knows their doctor may communicate in litigation with the

patient’s opponent.7 We concluded that these “potential risks” outweighed “any

hardship caused the defendants by having to use formal discovery procedures.” Id.

at 680. Thus, we held that “defense counsel may not engage in ex parte contacts with

a plaintiff’s physicians.” Id. at 682.

To be sure, the language we used in Loudon was broad. But, like in any case,

the facts are critical to understanding the limits of our holding. The Loudon

defendants sought ex parte contact with doctors whose care was not at issue in the

lawsuit and with whom the defendants had no relationship that would give rise to

vicarious liability. Further, the defendants in Loudon had no basis to assert that their

communications with the subsequent treating doctors were protected by the attorneyclient privilege. Under those facts, we concluded that the hardship to the defendants

In passing, we also noted the risk that ex parte contact with treating doctors may result in defense counsel becoming an impeachment witness if the doctor’s ex parte statements conflict with his or her later testimony. Loudon, 110 Wn.2d at 680. In a later case, we appropriately observed it was not clear “why this is a greater concern with medical witnesses than with any other witness.” Holbrook v. Weyerhaeuser Co., 118 Wn.2d 306, 313, 822 P.2d 271 (1992).

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of having to use formal discovery procedures was outweighed by the risks to the

plaintiff.

The facts in this case are very different. Here, the defendant is a corporate

hospital. The doctors whose care is challenged were employees of that corporation,

so the defendant’s contacts with those employees over litigation-related issues may

be protected by the corporate attorney-client privilege. The plaintiff has sued the

hospital, alleging that it is vicariously liable for the negligence of its former

employee doctors who treated the plaintiff. The conduct of those doctors forms the

entire basis of the lawsuit against the defendant; the doctors are critical witnesses for

the defense. And the hospital defendant has a fiduciary relationship with those

doctors as their insurer, see Tank v. State Farm Fire & Cas. Co., 105 Wn.2d 381,

385, 715 P.2d 1133 (1986), along with mutual contractual obligations with the

doctors that endure beyond the termination of the employment relationship—

obligations that require ongoing communication.

In these distinct circumstances, the balance of interests changes. A defendant

has the “right to fully investigate its potential liability” and to defend itself. Youngs,

179 Wn.2d at 665. Here, barring ex parte contact with the doctors prevents the

defendant from effectively exercising those rights. Barring ex parte contact with the

doctors also interferes with the defendant’s contractual obligations and its fiduciary

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duties as the doctors’ insurer. In this context, the hardship to the defendant of being

denied free and privileged communication with the doctors outweighs the potential

risks to the plaintiff. Further, unlike in Loudon, the nonparty doctors here have a

strong interest in the outcome of litigation in which their conduct may be deemed

negligent, and thus they may have their own interests in communicating with the

defendant. The rationales behind the Loudon rule do not apply here.

In a later case, Smith, we articulated another rationale supporting the Loudon

rule: a concern that defense counsel’s ex parte contact with nonparty doctors poses

the risk that defense counsel will improperly influence the nonparty doctor’s

testimony. 170 Wn.2d at 688. But Smith, like Loudon, dealt with a subsequent

treating physician whose care was not at issue, and Smith contained no discussion of

the attorney-client privilege. 8 The court in Smith had no reason to consider the

special hardships posed by applying the Loudon rule to the context presented in this

case. Smith’s additional rationale does not outweigh the defendant’s interest in fully

In Smith, plaintiff sued Dr. Schwagler and Orthopedics International, contending that Dr. Schwagler was negligent in performing a spine surgery. 170 Wn.2d at 662. Prior to trial, defense counsel sent the transcript of the deposition of one of plaintiff’s experts to the attorney for Dr. Johansen, a nonparty doctor who treated Smith after Dr. Schwagler performed spine surgery. Id. at 663. The majority appears to state that Dr. Johansen’s care was implicated in the lawsuit against Dr. Schwagler and Orthopedics International. Majority at 23. I find nothing in Smith to suggest that.

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investigating and preparing a defense to a claim of vicarious liability under these

circumstances.

B. Youngs did not address the distinction between nonparty treating

doctors alleged to be at fault and those not alleged to be at fault

because the distinction was not presented in that case. But because our

decision failed to note that distinction, some courts—and the majority

here—apply its rule barring ex parte communication between

corporate counsel and treating doctors to both groups. Youngs does not

support such an application

In the two consolidated cases in Youngs, plaintiffs sued the hospitals

where they alleged they received negligent treatment from the hospitals’ employee

doctors. The plaintiffs argued that Loudon barred defense counsel from ex parte

contact with certain nonparty treating doctors. The hospitals countered that the

Upjohn corporate attorney-client privilege9 permitted and protected ex parte

conversations between hospital defense counsel and the hospitals’ employee

doctors. Thus, Youngs again required this court to balance important, conflicting

interests.

Notably, neither of the plaintiffs in Youngs asserted that Loudon barred

defense counsel from ex parte contact with their allegedly negligent doctors. In fact,

Upjohn Co. v. United States, 449 U.S. 383, 101 S. Ct. 677, 66 L. Ed. 2d 584 (1981).

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contrary to the majority’s assertion, both plaintiffs acknowledged that they did not

seek to bar such contact.10 Contra majority at 23.

However, the Youngs opinion announced a rule that fails to distinguish

between doctors whose care is at issue in the lawsuit and doctors whose care is not

at issue. We considered the purposes of the attorney-client privilege and the

physician-patient privilege—without considering the distinction between those two

sets of doctors—and concluded that “corporate defense counsel may have privileged

ex parte communications with a plaintiff’s nonparty treating physician only where

Plaintiff Aolani Glover limited her allegations of negligence to the care she received in the Harborview Medical Center emergency room and objected only to ex parte contact with providers who treated her after that allegedly negligent ER care. Resp’t’s Br., State v. Glover, No. 67350-5-I, at 5-6 (Wash. Ct. App. 2011). Plaintiff Marc Youngs explained that he did not seek to bar employers from contact with employee doctors whose conduct was at issue in the lawsuit. Pet’r Youngs’ Resp. to Br. of Amicus Curiae Wash. Def. Trial Laws., Youngs v. PeaceHealth, No. 87811-1, at 7 (Wash. 2013) (“Nothing in the rule Plaintiff is urging prevents an attorney’s investigation of a case. . . . The attorney will be in no different position than the defense attorney in Smith . . ., who could talk ex parte to the physicians whose conduct was at issue, but who could not communicate ex parte with a subsequent treating physician.” (emphasis added)), 11 (heading in brief titled “The Defense of a Medical Malpractice Claim does not Require Ex Parte Communications with Treating Physicians whose Conduct is not at Issue.” (emphasis added) (boldface and underlining omitted)); Appellant’s Opening Br., Youngs v. PeaceHealth, No. 67013-1-I, at 4 (Wash. Ct. App. 2011) (Youngs contended that Loudon “prohibited defense counsel from engaging in ex parte contact with Mr. Youngs’ treating physicians, other than [two] treating physicians whose conduct is at issue.” (emphasis added)). WSAJF, amicus for the plaintiffs, agreed with this characterization: “Youngs and Glover also appear to concede that ex parte contact is permitted with physicians whose conduct may subject the corporate defendant to vicarious liability.” Br. of Amicus Curiae Wash. State Ass’n for Justice Found., Youngs v. PeaceHealth, No. 87811-1, at 5 (Wash. 2013)). I disagree with the majority’s contrary presentation of the facts and concessions in Youngs.

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the communication meets the general prerequisites to application of the attorneyclient privilege, 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.” Youngs, 179 Wn.2d at 664 (first emphasis

added) (footnote omitted). Read literally, Youngs states a broad rule that is based on

the presumption which Loudon would otherwise apply—even when the nonparty

treating doctor’s care is at issue in the litigation.

Once again, while our rule was expressed broadly, it must be understood in

context. Defendant-hospital’s communications with allegedly negligent doctors

were not at issue in Youngs; hence, the court did not have a reason to consider

whether the Loudon rationale applies equally to that category of doctors. I would

hold that the Youngs rule is properly understood more narrowly as applying only to

doctors whose care is not implicated in the lawsuit.11

In Hermanson v. MultiCare Health System, Inc., this court appropriately applied the Youngs rule to permit a hospital defendant to communicate ex parte with an independent contractor who is the agent of the defendant and the “functional equivalent” of an employee. 196 Wn.2d 578, 581, 637 P.2d 956 (2020) (citing Youngs, 179 Wn.2d at 671). The independent contractor at issue in Hermanson was a doctor whose care was at issue in the lawsuit. Thus, this case also presented an opportunity for the court to consider whether the Loudon rule applies at all to nonparty doctors whose conduct forms the basis of the plaintiff’s vicarious liability claim against the hospital. However, the Hermanson court stated that it was unnecessary to decide that issue. Id. at 590. By declining to consider the hospital’s argument that Loudon should not apply to an allegedly at-fault doctor, Hermanson compounded the error made in Youngs.

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Now, considering that issue directly, I would course correct and hold that the

rationale underpinning the Loudon rule applies to the Loudon context—and does not

apply to nonparty treating doctors whose conduct forms the basis of the claim

against the defendant.12

The majority disagrees. It dismisses the important distinctions between the

facts in Loudon and Youngs and the facts in this case. It states that “nothing in

Loudon or subsequent cases suggests that the doctor-patient privilege has less

force when the doctor may have been negligent or otherwise at fault.” Majority at

24. As discussed above, that is not accurate.

But even if that were accurate, the plaintiff’s interests are only half of the

equation—Loudon balanced both the risks to the plaintiff and the hardship to the

Loudon’s rationale is especially inapplicable where, as here, the defendant is also the doctors’ insurer. Applying Loudon to such contacts strays far from the facts of that case and implicates additional legal issues that Loudon had no reason to consider. I agree with VMMC that Loudon does not apply to communications made with the doctors or their attorney in VMMC’s capacity as the doctors’ insurer and that such communications may be protected by the attorney-client and common interest privileges, if the other prerequisites to application of those privileges are met. See Barry v. USAA, 98 Wn. App. 199, 204-05, 989 P.2d 1172 (1999) (communications between insured, insurer, and defense counsel are privileged); Sanders v. State, 169 Wn.2d 827, 853, 240 P.3d 120 (2010) (common interest doctrine “provides that when multiple parties share confidential communications pertaining to their common claim or defense, the communications remain privileged as to those outside their group” (citing Broyles v. Thurston County, 147 Wn. App. 409, 442, 195 P.3d 985 (2008))). I would remand to the trial court to consider VMMC’s attorney-client privilege and common interest privilege arguments in light of the fact that Loudon does not apply to VMMC’s communications with the doctors.

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defendant. In the context presented in this case, the balance of interests favors the

defendant’s right to freely investigate and effectively defend itself against a claim of

vicarious liability. To hold otherwise creates an unfair result that bears little rational

relationship to Loudon’s purpose.

Consider the ways that the majority’s application of Loudon and Youngs in

this distinct context create the opportunity for unfair gamesmanship. A plaintiff can

limit the hospital defendant’s ability to freely communicate with key witnesses by

deciding not to name a doctor as a defendant, while still seeking to hold the hospital

liable for that doctor’s care. Or, a plaintiff can strategically dismiss a doctor as a

named defendant at any point, thereby abruptly cutting off the hospital defendant’s

ability to communicate freely with that doctor—even when the hospital and the

doctor are jointly represented by the same counsel.13

VMMC argues that is what happened in this case, where the plaintiff dismissed Dr. Brandenberg as a named defendant close to the original scheduled trial date. Under the majority’s rule, plaintiff’s decision would cut off VMMC’s ability to communicate freely with Dr. Brandenberg, even though he and VMMC were jointly represented by the same counsel.

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(Gordon McCloud, J., dissenting)

II. Even if Youngs applied to allegedly at-fault nonparty doctors, I would

extend Youngs’ application of the attorney-client privilege to

communications between plaintiff’s nonparty doctors who are former

employees of the defendant and shared an attorney-client privilege with

the defendant. Newman14 is distinguishable

Alternatively, even accepting Youngs as the majority understands it (as

applying to all of plaintiff’s nonparty doctors, regardless of whether the doctor’s care

is at issue), I would clarify that Youngs’ application of the attorney-client privilege

extends to former employee doctors, not just current ones. Youngs’ rationale

regarding the corporate attorney-client privilege applies with equal force to those

doctors, since they possess critical information that defense counsel needs to provide

sound legal advice to the corporate client. Newman, a later case that held that the

corporate attorney-client privilege did not extend to former nonmedical employees

of a school district, is distinguishable. 186 Wn.2d 769.

A. Youngs focused on corporate counsel’s duty to gather information

about incidents that expose the corporate client to liability to provide

sound legal advice to the client; this rationale applies with equal force

whether the nonparty doctor is a current or former employee

As mentioned above, Youngs presented a situation where the Upjohn

corporate attorney-client privilege would protect certain ex parte communications

between a hospital’s corporate defense counsel and hospital employees, but Loudon

Newman v. Highland Sch. Dist. No. 203, 186 Wn.2d 769, 381 P.3d 1188 (2016).

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(Gordon McCloud, J., dissenting)

would bar those same communications. 179 Wn.2d at 663. To resolve this conflict,

we had to “balance the values underlying the attorney-client privilege against those

underlying the physician-patient privilege” (even though the physician-patient

privilege had been waived). Id. at 650.

We acknowledged the important privacy values supporting the physicianpatient privilege and the risks of ex parte contact described in Loudon, as discussed

above. We then considered the purposes of the attorney-client privilege, codified at

RCW 5.60.060(2)(a), and focused on the seminal United States Supreme Court

decision in Upjohn. In Upjohn, the Court had to determine whether the attorneyclient privilege could apply to nonmanagerial employees of a corporation. The

Upjohn Court unanimously rejected the narrow “control group” test adopted by

some lower courts, which limited corporate attorney-client privilege to

communications between corporate counsel and the corporation’s officers and top

management. Instead, it adopted a flexible, functional approach to determining when

communications between corporate counsel and nonmanagerial employees enjoy the

protection of attorney-client privilege. That approach requires courts to consider

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whether “the underlying purposes of the attorney-client privilege” would be served

by protecting the communications. 449 U.S. at 395.15

The Upjohn Court described some of those purposes. It “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.” Youngs, 179 Wn.2d at 664 (alteration in original) (quoting

Upjohn, 449 U.S. at 390). It recognized that the attorney-client 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.” Upjohn, 449 U.S. at 390. In the corporate setting, nonmanagerial or lowerlevel 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.’” Youngs, 179 Wn.2d at 662 (quoting

Upjohn, 449 U.S. at 391). Without talking to those employees, corporate counsel

“‘may find it extremely difficult, if not impossible, to determine what happened’ to

trigger potential corporate liability.” Id. (quoting Upjohn, 449 U.S. at 392).

In Upjohn, the Court considered several factors and concluded that the purposes underlying the attorney-client privilege would be served by protecting the communications at issue. 449 U.S. at 394. The Court left open the question whether posttermination communications with former employees about matters occurring during employment would retain the privilege. Id. at 394 n.3.

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In Youngs, we expressly adopted Upjohn’s reasoning and its “‘flexible’” test.

Id. (quoting Wright v. Grp. Health Hosp., 103 Wn.2d 192, 201-02, 691 P.2d 564

(1984)). And we expressly relied on this reasoning to resolve the conflict in Youngs.

Id. at 665. We held that “the corporate attorney-client privilege trumps the Loudon

rule where an ex parte interview enables corporate counsel ‘to determine what

happened’ to trigger the litigation.” Id. at 664 (internal quotation marks omitted)

(quoting Upjohn, 449 U.S. at 392). Such communications must be limited to the

facts of the alleged negligent event. Id. at 665. 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.” Id.

Youngs’ reasoning on the attorney-client privilege applies with equal force to

the plaintiff’s nonparty treating doctors who are former employees of the defendant.

In fact, it applies with even greater force where, as here, the alleged conduct of those

nonparty doctors forms the basis of the lawsuit against the corporate defendant. After

all, Upjohn extended the attorney-client privilege beyond the control group precisely

because lower-level employees, while acting in their capacity as agents of the

employer (even if they were not “speaking agents”), may expose the employer to

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liability. 449 U.S. at 391.16 Obviously, corporate counsel’s need to determine what

happened when an employee is accused of negligence does not disappear simply

because that employee moves on to another job. For this reason, “[v]irtually all

courts hold that communications between company counsel and former company

employees are privileged if they concern information obtained during the course of

employment.” Exp.-Imp. Bank of the U.S. v. Asia Pulp & Paper Co., 232 F.R.D. 103,

112 (S.D.N.Y. 2005). 17

Limiting corporate counsel’s ability to fully investigate and defend against

alleged negligence based merely on employment status does not serve the policy

goals of Youngs or Loudon. Instead, it creates an unwarranted burden on the statutory

attorney-client privilege and on a corporate defendant’s “right to fully investigate its

potential liability.” Youngs, 179 Wn.2d at 665. If Youngs covers allegedly negligent

A “speaking agent” is a person who “‘can speak and act for the entity and can settle controversies on its behalf.’” Wright, 103 Wn.2d at 202 (quoting Note, DR 7-104 of the Code of Professional Responsibility Applied to the Government “Party”, 61 MINN. L. REV. 1007, 1017 (1977)). By rejecting the “control group” test, Upjohn makes clear the attorney-client privilege can extend even to agents of a corporation who are not speaking agents.

See also Hanover Ins. Co. v. Plaquemines Parish Gov’t, 304 F.R.D. 494, 498-500 (E.D. La. 2015) (noting that “every federal court to address the issue, with the exception of a single district court decision in 1985, has held that the privilege extends to former employees in certain contexts”).

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nonparty employee doctors, it should cover those doctors even when they are no

longer current employees.

B. Newman is distinguishable

The majority opines that this court already decided, in Newman, that the

corporate attorney-client privilege can never apply to former employees under any

circumstances. But Newman is distinguishable.

In Newman, decided a few years after Youngs, a student sued a school district

for negligence after suffering a serious injury playing football. The plaintiff sought

disclosure of certain communications between the school district’s counsel and

former employee football coaches—not medical providers. The school district

asserted that those communications were protected by attorney-client privilege.

In a 5-4 decision, the Newman majority held that those communications were

not privileged because “former employees categorically differ from current

employees with respect to the concerns identified in Upjohn and Youngs.” 186

Wn.2d at 780. Newman focused on the fact that a former employee “generally” no

longer has an agency relationship with the employer, “can no longer bind the

corporation and no longer owes duties of loyalty, obedience, and confidentiality to

the corporation.” Id. It held—in the context of that case, which did not involve

doctors, hospitals, ongoing insurance obligations or ongoing contractual cooperation

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and indemnification promises—that extending the attorney-client privilege to such

former employees would not serve the purposes of the privilege.

In my view, Newman’s narrow focus on an individual’s current employment

status as the determinative factor in justifying application of the attorney-client

privilege conflicts with Youngs and Upjohn. First, neither of those decisions based

the corporate attorney-client privilege on the employee’s duties of loyalty or

obedience to the employer. Instead, those decisions emphasized corporate counsel’s

investigatory duty and justified the corporate attorney-client privilege because it

would promote the free and frank exchange of information that would allow

corporate counsel to provide sound legal advice to the client. Second, both Youngs

and Upjohn emphasized that the corporation’s “need to know” certain information

supported extending the privilege to nonmanagerial employees. Newman unduly

minimizes the importance of these considerations.

But even accepting the Newman majority’s holding, Newman itself recognized

that in some cases, an employer and former employee continue to owe each other

duties and that some courts have therefore extended the privilege to communications

with such former employees. Id. at 780 n.2 (citing Peralta v. Cendant Corp., 190

F.R.D. 38, 41 n.1 (D. Conn. 1999); Infosystems, Inc. v. Ceridian Corp., 197 F.R.D.

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303, 306 (E.D. Mich. 2000)), 781 n.3 (quoting RESTATEMENT (THIRD) OF THE LAW

GOVERNING LAWYERS § 73 cmt. e (A.L.I. 2000)).

This case presents that precise situation. VMMC has a continuing

contractual duty to defend its former employee doctors, regardless of their current

employment status, against claims arising from their acts during their employment.

And the former employee doctors have a continuing contractual duty to cooperate

with the hospital’s investigation and defense of such claims. Given this fact,

Newman’s rationale does not logically apply to this case. Instead, this fact supports

extending the attorney-client privilege to corporate counsel’s communications with

its former employees, if the other requirements for attorney-client privilege are

met. See Youngs, 179 Wn.2d at 653 n.4 (citing Haines v. Liggett Grp., Inc., 975

F.2d 81, 90 (3d Cir. 1992) (attorney-client 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”)). 18

The majority rejects the above analysis in passing by stating that this court has already applied “Loudon and its progeny” “to former employees whose conduct is at issue.” Majority at 29 n.8. But the cases the majority cites do not support that assertion. First, the majority cites Newman, but as discussed, that case had nothing to do with medical providers or with the Loudon rule; it certainly cannot be read as an instance of this court applying the Loudon rule to a former employee doctor whose conduct is at issue in a lawsuit. Next, the majority cites Justice Johnson’s partial concurrence in Smith, but, again, there is no suggestion that the nonparty doctor at issue in that case was a former employee of the defendant. Finally, the majority cites Loudon itself, but as established, the doctors at

Snyder v. Virginia Mason Med. Ctr., No. 104136-5

(Gordon McCloud, J., dissenting)

III. VMMC did not waive the statutory quality improvement privilege by

failing to screen a quality improvement committee member from this

litigation

RCW 70.41.200(1) requires hospitals to maintain “a coordinated quality

improvement program” aimed at improving the quality of health care services

rendered and preventing medical malpractice. Among other requirements, quality

improvement programs must collect and maintain “information concerning the

hospital’s experience with negative health care outcomes and incidents injurious to

patients.” RCW 70.41.200(1)(e). Materials “created specifically for, and collected

and maintained by, a quality improvement committee” are protected from civil

discovery. RCW 70.41.200(3).

The statutory quality improvement privilege is narrow. “The privilege does

not protect what goes into or comes out of the quality improvement committees. But

documents created as part of the inner workings of the committee are privileged and

disclosure of those documents may not be compelled.” Lowy v. PeaceHealth, 174

Wn.2d 769, 787, 280 P.3d 1078 (2012).

issue in Loudon were not former employees of the defendant and their conduct was not at issue in the lawsuit.

Snyder v. Virginia Mason Med. Ctr., No. 104136-5

(Gordon McCloud, J., dissenting)

In this case, VMMC argues that the quality improvement privilege protects

some of the documents on its privilege log. The trial court denied Snyder’s motion

to compel disclosure of these documents.

In Youngs, we explained that a hospital employer could comply with the

quality improvement statutes and avoid violating Loudon by screening quality

improvement committee members from malpractice litigation. Snyder argues that

VMMC has waived any claim to quality improvement privilege because it failed to

screen a member of the quality improvement committee, Dr. Michael Glenn, from

the litigation in this case.

The Court of Appeals correctly rejected this argument. It explained, “Youngs

proposes screening as a possible preventative for ex parte communications, but does

not require it under threat of waiver of the privilege. If this screening is not done,

and the result is a Loudon violation, then the trial court must determine the proper

remedy based on the nature of the prejudice and the particular circumstances.”

Snyder, No. 83526-2-I, slip op. (unpublished portion) at 29,

https://www.courts.wa.gov/opinions/pdf/835262%20Order%20and%20Opinion.pdf.

Here, the record suggests that VMMC did not screen Dr. Glenn from the

litigation. But, as discussed above, this did not result in a Loudon violation because

Loudon does not bar a hospital employer’s ex parte communications with former

Snyder v. Virginia Mason Med. Ctr., No. 104136-5

(Gordon McCloud, J., dissenting)

employee doctors whose care is at issue in litigation. Thus, I find no basis to

conclude that VMMC has waived the quality improvement privilege. I would affirm

the trial court’s denial of Snyder’s motion to compel disclosure of materials covered

by the quality improvement privilege.19

CONCLUSION

I would affirm in part and reverse in part.

First, I would hold that Loudon does not bar a defendant’s ex parte contact

with plaintiff’s nonparty doctors whose allegedly negligent conduct gives rise to the

plaintiff’s claim against the defendant. Thus, I would reverse the Court of Appeals

ruling that those contacts violated Loudon.

Second, I would remand to the trial court to address certain other issues that

depend on the resolution of the Loudon issue. Specifically, I would hold that the

corporate attorney-client privilege may extend to defense counsel’s communications

with the former employee doctors. Here, neither the trial court nor the Court of

Appeals assessed whether the privilege applies to those communications because it

The majority concludes that VMMC “at least partially waived the statutory privilege” by failing to shield Dr. Glenn from litigation. Majority at 3. In doing so, the majority creates a brand-new waiver rule that conflicts with the plain language of the quality improvement statute. The legislature’s intent is clear in that statute: materials created specifically for, and collected or maintained by, a hospital’s quality improvement committee are not subject to compelled disclosure. RCW 70.41.200(3); Lowy, 174 Wn.2d at 787 (noting that RCW 70.41.200(3) does not “list any exception to the protection from discovery”).

Snyder v. Virginia Mason Med. Ctr., No. 104136-5

(Gordon McCloud, J., dissenting)

first concluded that any such communications violated Loudon. I would therefore

remand to the trial court to determine in the first instance whether VMMC has met

the other prerequisites to application of the attorney-client privilege to its

communications with the former employee doctors or their counsel (e.g.,

confidentiality, communication for the purpose of obtaining legal advice). I would

further instruct the trial court to consider VMMC’s arguments about the common

interest privilege in light of its conclusion about whether the prerequisites to

application of the attorney-client privilege were met, given that Loudon does not bar

VMMC’s communications with the nonparty doctors.

Third, I would reverse the Court of Appeals holding that VMMC’s violation

of Loudon led to a violation of the quality improvement privilege—because I don’t

think that VMMC violated Loudon. Given the majority’s holding on that point,

though, I would affirm the Court of Appeals holding that the extent to which the

plaintiff can show prejudice is a factor bearing on the appropriate sanction for a

Loudon violation and that failure to screen a quality improvement committee

member from defense counsel in a malpractice action does not automatically waive

statutory quality improvement protections.

Snyder v. Virginia Mason Med. Ctr., No. 104136-5

(Gordon McCloud, J., dissenting)

Finally, given this resolution, I would not reach VMMC’s additional

constitutional arguments. 20

The majority’s decision today expands the Loudon rule far beyond its original

context. It creates an unwarranted burden on a corporate defendant’s “right to fully

investigate its potential liability” and to defend itself. Youngs, 179 Wn.2d at 665. It

erodes the statutory attorney-client privilege. And it fails to fully address how its

broad rule will apply to the specific facts of this case. I therefore respectfully dissent.

VMMC argues that applying Loudon in this context violates the equal protection and due process rights of both VMMC and the doctors. Because I would hold that Loudon does not apply to VMMC’s communications with the allegedly negligent, former employee nonparty doctors, I would not reach these additional arguments. But I note some disagreements with the majority’s approach to these arguments.

The majority declines to consider VMMC’s argument that the application of Loudon in this context violates the nonparty doctors’ due process and equal protection rights because it says VMMC made those arguments for the first time on appellate review. Majority at 29 n.9. I agree that VMMC does not appear to have made the equal protection arguments (regarding either VMMC or the doctors) in the trial court. But VMMC did make the argument about doctors’ due process rights in the trial court, so it is preserved for review. E.g., CP at 1773 (VMMC’s Opp’n to Pl.’s Mot. to Direct Special Master), 2196 n.41 (VMMC’s Mot. Allowing for Ex Parte & Privileged Commc’ns).

Likewise, VMMC’s separate argument that applying Loudon in this context violates VMMC’s own due process right to prepare a defense is preserved because VMMC made this argument in the trial court. CP at 2196 n.41 (VMMC’s Mot. Allowing for Ex Parte & Privileged Commc’ns). The majority does not mention or address this argument.

Snyder v. Virginia Mason Med. Ctr., No. 104136-5

(Gordon McCloud, J., dissenting)

Madsen, J.P.T.

Snyder v. Virginia Mason Med. Ctr.

Authorities cited

Opinion · public domain