A five-Justice majority of the Washington Supreme Court ruled in Youngs v. PeaceHealth (No. 87811-1) that a corporate healthcare provider’s defense counsel may communicate ex parte with the plaintiff’s treating physician if – and only if – the communication is for the purpose of providing legal advice, the physician has direct knowledge of the events triggering the litigation, and the communications concern the facts of the alleged negligent incident. Four dissenting Justices would not permit such communication.

Background: Youngs involved two consolidated actions. In each action, the plaintiff asserted claims against a corporate healthcare provider based on the alleged negligent actions of its physician employees. In both cases, the trial court entered an order on ex parte contacts and certified that order for discretionary review. The Court of Appeals consolidated the cases and transferred them to the Supreme Court, which granted review after concluding that the cases presented issues of broad public import requiring prompt determination.

Analysis: The Supreme Court grappled with two competing legal principles. The first, referred to as the Loudon rule (referring to Loudon v. Mhyre, 110 Wn.2d 675 (1988)) prohibits defense counsel in a personal injury case from communicating ex parte with the plaintiff’s nonparty treating physician. The purpose of that rule is evident: to protect the sanctity of the physician-patient relationship and the physician-patient privilege. As a result of that relationship and privilege, patient-physician communications are cloaked with confidentiality to promote proper treatment by facilitate full disclosure of information and protect patients from embarrassment or scandal.

The second rule, competing with the first, is the attorney-client privilege, which encourages full and frank communications between attorneys and their clients and thereby promotes broader public interests in the observance of law and administration of justice. In Upjohn Co. v. United States, 449 U.S. 383 (1981), the U.S. Supreme Court extended this privilege to corporate defendants. This rule, applied to medical malpractice cases, would not only permit but would encourage an employee of a corporate healthcare provider to communicate fully and frankly with the corporate defendant’s counsel so as to determine the best strategy (litigate or settle?) given the underlying facts.

The issue in Youngs is that these rules arguably conflict where the plaintiff’s treating physician is also employed by the corporate defendant. Under Loudon, the corporate defendant’s counsel cannot communicate ex parte with the treating physician. Under Upjohn, the corporate defendant’s counsel can and should communicate ex parte with the treating physician.

To protect the values underlying both the physician-patient and the attorney-client privileges, the Supreme Court in Youngs adopted a modified version of the Upjohn test. Specifically, it held that 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 is for the purpose of providing legal advice, the physician has direct knowledge of the events triggering the litigation, and the communications concern the facts of the alleged incident.

Dissent: The four dissenting Justices rejected the majority’s new rule because it not only subjects the physician-patient relationship to the inherent dangers of inadvertent disclosure but prevents the plaintiff from inquiring about any such disclosures under the cloak of the attorney-client privilege. Balancing the competing interests, the dissent would uphold the Loudon rule, in part, because, even applying Loudon, the relevant facts remain fully available to both parties – through normal discovery channels rather than through ex parte communications.

Commentary: It is not surprising that this case garnered both a strong majority and a strong dissent. The interests underlying the physician-patient privilege and the attorney-client privilege are important, and how those interests should properly be balanced is a difficult inquiry. Nonetheless, the dissent persuasively argues that the physician-patient privilege is paramount – we expect our treating physicians to protect our confidences – and that a corporate healthcare provider’s counsel can obtain the information necessary to formulate a legal strategy through normal discovery channels rather than through ex parte communications.