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Communications When Defendant Employs Plaintiff's Nonparty Physician


A man was admitted to the hospital where he underwent lung surgery. While there he developed sepsis resulting in the loss of both of his legs below the knee and both of his hands above the wrist. The man sued the hospital for negligent postoperative care. The complaint identified two doctors as physicians whose conduct gave rise to the lawsuit, but he did not name those doctors as defendants.

 

During discovery the man did not object to ex parte contacts between the hospital’s attorney and the two identified doctors. However, the man did object to ex parte contacts between the hospital’s attorney and other doctors who treated him while he was at the hospital. The man argued that the hospital’s attorney was subject to Washington’s Loudon rule, under which defense counsel is prohibited in a personal injury case from communicating ex parte with the plaintiff's nonparty treating physician. The trial court eventually allowed the hospital’s attorney to have ex parte contact with the hospital employees who provided health care to the man.

 

In a separate incident, a woman presented to a different hospital’s emergency room with chest pain. She waited five hours before her vital signs were taken. The woman’s blood work revealed elevated troponin levels, which indicated myocardial infarction (heart attack). A physician’s assistant (PA) reviewed the wrong blood work and mistakenly discharged the woman explaining she was not suffering a heart attack. The PA discovered the mistake, tracked down the woman at the hospital pharmacy, and she was eventually admitted. Upon further examination in the cardiac catheterization room, doctors discovered that she had suffered a right coronary artery dissection. She then suffered several cardiac arrests. The woman underwent numerous procedures. Eventually she was transferred to another facility run by the same organization and underwent a heart transplant.

 

The woman sued alleging that the hospital’s emergency staff was too slow to recognize that she was suffering a cardiac event and that they therefore negligently delayed her transfer to the catheterization room. She made no allegations of negligence concerning the care she received after the PA tracked her down to return to the emergency department for readmission. The woman argued that the hospital’s attorney was subject to Washington’s Loudon rule. The trial judge issued a protective order stating that the hospital’s attorney was prohibited from ex parte contact, directly or indirectly, with any of the woman's treating physicians at the facility she was transferred to after her initial cardiac procedure.

 

In both cases, the trial court certified its order on ex parte contacts for discretionary review. The Court of Appeals consolidated the cases and transferred them to the Washington State Supreme Court.

 

The Supreme Court of Washington affirmed in part, reversed in part, and remanded. The court held that Loudon's bar on ex parte contacts survived the 1986 and 1987 amendments to Washington's physician-patient privilege statute, and that Loudon's protections apply to nonparty treating physicians employed by a defendant hospital, but that where the plaintiff's treating physician is employed by the defendant, the Loudon rule is limited by the defendant organization's corporate attorney-client privilege. The court also held that a trial court may not restrict communications between a hospital's employees and a quality improvement committee but that members of the committee must be screened from defense counsel in an action against the hospital for negligence or medical malpractice.

 

First, the court held that Loudon’s bar on ex parte contacts survived the 1986 and 1987 amendments to Washington’s physician-patient privilege statute. The court reasoned that the amendments codified a common law rule in existence at the time Loudon was decided: a patient may waive the physician-patient privilege by putting his or her physical condition in issue. Waiver was not absolute, however, but was limited to medical information relevant to the litigation. The danger of an ex parte interview that Loudon specifically addressed was that it may result in disclosure of irrelevant, privileged medical information. Loudon protected the plaintiff's interest in avoiding such disclosure can by allowing plaintiff's counsel an opportunity to participate in physician interviews and raise appropriate objections.

 

Second, the court held that if Loudon conflicts with a defendant's corporate attorney-client privilege, however, it must yield to that privilege. The court reasoned that corporations, like individuals, enjoy the protections of the attorney-client privilege. However, this privilege does not extend to every employee of the corporation. In the context of corporate liability, low- and mid-level employees, who may be the only source of information relevant to legal advice, may be subject to the privilege to allow corporate counsel to determine what happened to trigger potential corporate liability. An attorney hired by a corporate defendant to investigate or litigate an alleged negligent event may engage in privileged (ex parte) communications with the corporation's physician-employee where the physician-employee has firsthand knowledge of the alleged negligent event and where the communications are limited to the facts of the alleged negligent event. The court emphasized that the facts of the alleged negligent incident do not encompass health care that was provided before or after the event triggering the litigation, such as care for preexisting conditions or postevent recovery, even where the care bears on the issue of damages.

 

Third, the court held that a trial court may not restrict communications between a hospital's employees and quality improvement committee but that members of the committee must be screened from defense counsel in an action against the hospital for negligence or medical malpractice. Washington's hospital quality improvement (QI) statute, RCW 70.41.200, requires that hospitals collect information concerning their patients' negative health care outcomes and protects this information from civil discovery. The QI statute precludes restrictions on communications between a hospital's QI committee and its physicians, but the committee members can be screened from defense counsel in a malpractice action.

 

The court found no conflict between the UHCIA and Loudon, because a hospital can obtain legal services without violating the physician-patient privilege. Washington's Uniform Health Care Information Act (UHCIA), chapter 70.02 RCW, authorizes the disclosure of confidential patient information to the extent a recipient needs to know the information, if the disclosure is to a person who requires the information to provide quality assurance or legal services to the health care provider or health care facility. The court reasoned that Loudon does not prohibit the acquisition of knowledge; it merely imposes procedural safeguards to prevent improper influence or disclosures. There are limits on a corporate defendant's right to communicate ex parte with its employees, such as court-imposed rules to prevent the disclosure of irrelevant privileged information or to block communications with different employees or departments of a hospital.

 

The Supreme Court of Washington affirmed in part, reversed in part, the trial courts’ orders allowing varied levels of ex parte contact between hospitals’ attorneys and hospitals’ employees, plaintiffs’ nonparty treating physicians.

 

See: Youngs v. Peacehealth, 2014 WL 265568 (Wash., January 23, 2014) (not designated for publication).

 

See also Medical Law Perspectives, December 2012 Report: When Urgency Leads to Errors: Liability for Emergency Care

 

See also Medical Law Perspectives, November 2013 Report: Diagnosis and Treatment of Heart Attacks: Liability Issues

 

See also Medical Law Perspectives, January 2012 Report: Hospital-Acquired Infections: Who Is Liable and Why?

 

 

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