Background
Michael Snyder suffered permanent, disabling injuries after a catheter placed during major surgery at Virginia Mason Medical Center entered an artery, causing a massive hemorrhage and prolonged cardiac arrest. Snyder sued Virginia Mason and the lead surgeon but did not sue three other physicians involved in the procedure—Drs. Molly Downey, Weslee Chew, and Nathan Aranson—who no longer worked for the hospital.
Virginia Mason nevertheless had contractual defense and indemnity obligations to those physicians. Its lawyers, risk managers, claims administrator, and retained counsel communicated extensively with them without Snyder’s knowledge or consent. The hospital’s chief medical officer, who also served on its quality improvement committee, traveled to meet with Dr. Chew with litigation-related talking points. After learning of the communications, Snyder sought related records, quality-improvement materials, and default judgment on liability. The trial court found a violation of Washington’s Loudon rule but denied default for lack of sufficient evidence of litigation prejudice; the Court of Appeals affirmed.
The Court’s Holding
The Washington Supreme Court held that Virginia Mason violated Loudon by engaging in ex parte communications with Snyder’s nonparty treating physicians. Neither the hospital’s continuing contractual duties to defend and indemnify its former employees nor the common-interest doctrine brought the communications within the limited exception permitting corporate counsel to speak privately with current employees or their functional equivalents. The physicians remained Snyder’s nonparty doctors, and Virginia Mason was required to use formal discovery procedures.
The court also held that Virginia Mason at least partially waived the statutory privilege for hospital quality-improvement materials because a committee member participated in litigation-related activity without an adequate screen. It vacated the denial of Snyder’s motion to compel and directed the trial court to determine the waiver’s scope, using in camera review where necessary. Finally, the court held that a Loudon violation is itself prejudicial and that Snyder need not independently establish litigation prejudice to qualify for a remedy. Because the extent and litigation impact of the prejudice remain relevant to selecting an appropriate remedy, the court vacated the denial of default judgment and remanded for reconsideration after fuller review of the relevant records.
Key Takeaways
- A hospital may not conduct undisclosed, ex parte communications with a plaintiff’s former treating physicians merely because it must defend or indemnify them or shares litigation interests with them.
- A Loudon violation is inherently prejudicial, although the degree of prejudice—including its effect on evidence and the litigation—guides the trial court’s choice of remedy.
- Allowing an unscreened quality-improvement committee member to participate in litigation-related contacts can partially waive Washington’s statutory quality-improvement privilege.
Why It Matters
The decision reinforces strict limits on defense access to nonparty treating physicians in Washington medical-malpractice litigation. Corporate attorney-client and common-interest principles do not provide a workaround when the physicians are former employees rather than current employees or their functional equivalents.
The ruling also gives trial courts broader authority to remedy undisclosed physician contacts without first requiring plaintiffs to prove separate litigation prejudice. Hospitals must carefully separate privileged quality-improvement work from litigation activity and screen committee participants when necessary to preserve statutory protections.