The statutory physician-patient privilege protects physicians from being compelled, without the consent of their patient, to be examined in a civil action as to any information acquired in attending such patient, which was necessary to enable him or her to prescribe or act for the patient. A patient waives the privilege by filing a personal injury suit. RCW 5.60.060(4)(b). Such waiver of the privilege is not absolute, however, but is limited to medical information relevant to the litigation. The danger of an ex parte interview is that it may result in disclosure of irrelevant, privileged medical information. The plaintiff’s interest in avoiding such disclosure can best be protected by allowing plaintiff’s counsel an opportunity to participate in physician interviews and raise appropriate objections. Thus, Loudon v. Mhyre, 110 Wn.2d 675, 756 P.2d 138 (1998), prohibits defense counsel in a personal injury case from ex parte contact with plaintiff’s non-party treating physicians.
In a medical malpractice case the Washington State Court of Appeals decided on February 5, 2024, Michael Snyder filed suit against Virginia Mason Medical Center (VMMC) for medical negligence based on injuries incurred after his aorta was punctured during surgical placement of a dialysis catheter. Three of the physicians involved in his care are no longer employed by VMMC, but are insured by VMMC for actions arising out of the care they provided during their employment. During discovery, it came to light that VMMC counsel had engaged in ex parte contact with the nonparty physicians.
The Washington State Court of Appeals stated that this case raises the issues of whether a showing of prejudice is required for sanctions for Loudon violations and whether a failure to screen a hospital quality improvement committee member from litigation precludes the protection of information from discovery under Washington’s hospital quality improvement (QI) statute, RCW 70.41.200.
The Washington State Court of Appeals held: “We hold that the trial court correctly determined that the Loudon rule applies and prohibits ex parte contact between VMMC counsel and the former employee nonparty physicians. We also conclude that the party seeking sanctions for a Loudon violation must establish prejudice. Finally, while screening QI committee members from defense counsel in a malpractice action allows hospitals to engage in their statutory QI obligations while still preserving Loudon protections, failure to screen does not operate as a waiver of the QI protection. We therefore affirm the trial court’s rulings regarding the applicability of Loudon and remand for further proceedings.”
Source Snyder v. Virginia Mason Medical Center, No. 83526-2-I.
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