Hermanson v. Multicare Health Sys., Inc.
| Decision Date | 12 November 2020 |
| Docket Number | No. 97783-6,97783-6 |
| Parties | Doug HERMANSON, an individual, Respondent/Cross-Appellant, v. MULTICARE HEALTH SYSTEM, INC., a Washington Corporation d/b/a Tacoma General Hospital, Jane and John Does 1-10 and their marital communities comprised thereof, Petitioners/Cross-Respondents. |
| Court | Washington Supreme Court |
Mary H. Spillane, Fain Anderson, et al., 701 5th Ave. Ste. 4750, Seattle, WA, 98104-7089, Daniel F. Mullin, Tracy A. Duany, Bryan Terry, Mullin, Allen & Steiner PLLC, 101 Yesler Way Ste. 400, Seattle, WA, 98104-3425, for Petitioners.
Dan'L Wayne Bridges, McGaughey Bridges Dunlap PLLC, 3131 Western Ave. Ste. 410, Seattle, WA, 98121-1036, for Respondent.
Michael F. Madden, David M. Norman, Bennett Bigelow & Leedom PS, 601 Union St. Ste. 1500, Seattle, WA, 98101-1363, for Amici Curiae Washington State Hospital Association, Washington State Medical Association, and American Medical Association.
Daniel Edward Huntington, Richter-Wimberley PS, 422 W. Riverside Ave. Ste. 1300, Spokane, WA, 99201-0305, Valerie Davis McOmie, Attorney at Law, 4549 Nw Aspen St., Camas, WA, 98607-8302, for Amicus Curiae Washington State Association for Justice Foundation.
Owens, J. ¶ 1 This case considers the boundaries of the corporate attorney-client privilege and how it operates when in conflict with a plaintiff's physician-patient privilege. First, we are asked to determine whether the corporate attorney-client privilege allows a defendant hospital to have ex parte communications with a plaintiff's nonparty treating physician who is the hospital's independent contractor, but not its employee. We held in Youngs v. PeaceHealth that a defendant hospital may have ex parte communications with a plaintiff's nonparty treating physician—who is the hospital's employee—provided those communications are limited to the facts surrounding the alleged negligent event. 179 Wash.2d 645, 671, 316 P.3d 1035 (2014). We now hold that the nonparty physician in this case, while technically an independent contractor of MultiCare, still maintains a principal-agent relationship with MultiCare and serves as the "functional equivalent" of a MultiCare employee such that Youngs would apply in this case; therefore, MultiCare may have ex parte communications with the physician under the same limitations we set forth in Youngs .
¶ 2 Second, we are asked to determine whether the corporate attorney-client privilege extends to communications between MultiCare and its nonphysician employees who treated the plaintiff—specifically, two nurses and a social worker. Because the nurse-patient privilege and the social worker-client privilege are essentially identical in purpose to the physician-patient privilege, and because we already held in Youngs that the corporate attorney-client privilege trumps the physician-patient privilege when the hospital needs to gather information about the alleged negligent event, we hold that MultiCare may have ex parte communications with these nonphysician employees under the limitations we set forth in Youngs .
¶ 3 Accordingly, we reverse the Court of Appeals’ judgment as to MultiCare's ex parte communications with the physician, affirm the Court of Appeals’ judgment as to MultiCare's ex parte communications with the nurses and the social worker, and remand to the trial court for further proceedings consistent with this opinion.
FACTS AND PROCEDURAL HISTORY
¶ 4 On September 11, 2015, Doug Hermanson sideswiped an unoccupied vehicle and crashed into a utility pole. Hermanson was transported to Tacoma General Hospital, which is owned by MultiCare Health System Inc. Hermanson was treated by several MultiCare employees, including two nurses and a crisis intervention social worker. However, the physician who treated Hermanson, Dr. Patterson, is an independent contractor of MultiCare pursuant to a signed agreement between MultiCare and Trauma Trust, his employer. Trauma Trust was created by MultiCare; Dr. Patterson has his own office at Tacoma General Hospital and is expected to abide by MultiCare's policies and procedures.
¶ 5 During Hermanson's treatment, an unidentified person at Tacoma General Hospital conducted a blood test on Hermanson that showed a high blood alcohol level. As a result, someone reported this information to the police, and the police charged Hermanson with first degree negligent driving and hit and run of an unattended vehicle.
¶ 7 The trial court reasoned that based on Youngs , 179 Wash.2d at 671, 316 P.3d 1035, Dr. Patterson is not a MultiCare employee and thus does not fall under the corporate attorney-client privilege, and the social worker does not fall under any type of medical privilege. However, the trial court held Hermanson's nurses qualified under the corporate attorney-client privilege because they are MultiCare employees.
¶ 8 The trial court further ordered MultiCare to seek leave of court before it spoke with any other MultiCare employees. Both parties filed a motion for reconsideration, which the trial court denied.
Id. The Court of Appeals agreed that MultiCare was not authorized to have ex parte communications with Dr. Patterson because he is not a MultiCare employee. Id. But using the same reasoning, the Court of Appeals held that MultiCare may have ex parte communications with the nurses and the social worker who cared for Hermanson because they are MultiCare employees. Id. at 363-64, 448 P.3d 153. Judge Glasgow concurred with the majority regarding the nonphysician employees, but dissented as to Dr. Patterson; Judge Glasgow reasoned that the corporate attorney-client privilege does not hinge on whether the physician is an employee or an agent, and that MultiCare should be allowed to communicate with Dr. Patterson regarding Hermanson's injuries at issue because Dr. Patterson admitted he is MultiCare's agent and Dr. Patterson is the "functional equivalent" of a MultiCare employee. Id. at 369, 371, 448 P.3d 153 (Glasgow, J., concurring in part, dissenting in part).
¶ 10 Both parties filed petitions for review, which were granted. Hermanson v. MultiCare Health Sys., Inc. , 194 Wash.2d 1023, 456 P.3d 399 (2020). The Washington State Association for Justice Foundation, the Washington State Hospital Association, the Washington State Medical Association, and the American Medical Association all filed amicus briefs.
ANALYSIS
¶ 11 Though we ordinarily review a trial court's discovery rulings for an abuse of discretion, a trial court's interpretations of statutes and judicial decisions constitute issues of law, which we review de novo. Fellows v. Moynihan , 175 Wash.2d 641, 649, 285 P.3d 864 (2012). The attorney-client privilege protects clients from disclosure of confidential communications made between the client and their attorney within the course of the attorney's professional employment. RCW 5.60.060(2). This privilege exists "to encourage full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and administration of justice." Upjohn Co. v. United States , 449 U.S. 383, 389, 101 S. Ct. 677, 66 L. Ed. 2d 584 (1981). This privilege extends to corporations and their hired counsel and will sometimes apply to midlevel and lower level corporate employees. Id. at 390, 394, 395, 101 S. Ct. 677 ; Newman v. Highland Sch. Dist. No. 203 , 186 Wash.2d 769, 777-78, 381 P.3d 1188 (2016).
¶ 12 However, defense counsel may not engage in ex parte communications with a plaintiff's treating physicians. Loudon v. Mhyre , 110 Wash.2d 675, 676, 756 P.2d 138 (1988) (hereinafter the " Loudon rule"). We promulgated this rule because "[t]he mere threat that a physician might engage in private interviews with defense counsel would, for some, have a chilling effect on the physician-patient relationship and hinder further treatment." Id. at 679, 756 P.2d 138. The Loudon rule further ensures that physicians may maintain their own ethical duties under the Hippocratic Oath and under the American Medical Association's guidelines. Id.
¶ 13 In a medical malpractice lawsuit, a hospital defendant's corporate attorney-client privilege often conflicts...
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