Youngs v. Peacehealth, Corp.

• Decision Date: 23 January 2014
• Docket Number: No. 87811–1.,87811–1.
• Citation: 179 Wash.2d 645,316 P.3d 1035
• Court: Washington Supreme Court
• Parties: Marc YOUNGS, Petitioner, v. PEACEHEALTH, a Washington corporation d/b/a Peacehealth St. Joseph Medical Center and d/b/a Peacehealth Medical Group, and Unknown John Does, Respondents. Aolani E. Glover, a single individual, Respondent, v. The State of Washington d/b/a Harborview Medical Center; and Lulu M. Gizaw, PA–C, Petitioners.

179 Wash.2d 645

316 P.3d 1035

Marc YOUNGS, Petitioner,

v.PEACEHEALTH, a Washington corporation d/b/a Peacehealth St. Joseph Medical Center and d/b/a Peacehealth Medical Group, and Unknown John Does, Respondents.

Aolani E. Glover, a single individual, Respondent,

v.The State of Washington d/b/a Harborview Medical Center; and Lulu M. Gizaw, PA–C, Petitioners.

No. 87811–1.

Supreme Court of Washington, En Banc.

Jan. 23, 2014.

Joel Dean Cunningham, Luvera Law Firm, J. Andrew Hoyal II, Luvera Barnett Brindley Beninger et al., Michael F. Madden, Carol Sue Janes, Bennett Bigelow & Leedom PS, Seattle, WA, James L. Holman, Attorney at Law, Tacoma, WA, for Petitioners.

John Coleman Graffe Jr., Johnson Graffe Keay Moniz, Heath Sharpless Fox, Johnson Graffe Keay Moniz & Wick LLP, Mary H. Spillane, Williams Kastner & Gibbs, Daniel W. Ferm, Williams Kastner & Gibbs PLLC, Seattle, WA, Thomas Richard Golden, Otorowski Johnston Morrow & Golden PLLC, Bainbridge Island, WA, for Respondents.

Stewart Amdrew Estes. Leetomg. Bucklin & McCormack, Inc., P.S., Seattle, WA, Shilpa Bhatia, Attorney at Law, Seattle, WA, Erin Healy Hammond, Attorney at Law, Federal Way, WA, Amicus Curiae on behalf of Washington Defense Trial Lawyers.

George M. Ahrend, Ahrend Albrecht PLLC, Ephrata, WA, Bryan Patrick Harnetiaux, Attorney at Law, David P. Gardner, Winston & Cashatt, Spokane, WA, Amicus Curiae on behalf of Washington State Association for Justice Foundation.

Gregory Mann Miller, Carney Badley Spellman PS, Seattle, WA, Amicus Curiae on

behalf of Washington State Medical Association.

GORDON McCLOUD, J.

¶ 1 The question presented in this case is whether Loudon v. Mhyre, 110 Wash.2d 675, 677, 756 P.2d 138 (1988), which prohibits defense counsel in a personal injury case from communicating ex parte with the plaintiff's nonparty treating physician, applies to such physicians when they are employed by a defendant. Specifically, we are asked whether Loudon bars ex parte communications between a physician and his or her employer's attorney where the employer is a corporation and named defendant whose corporate attorney-client privilege likely extends to the physician, at least as to certain subjects. To answer this question, we must balance the values underlying the attorney-client privilege against those underlying the physician-patient privilege.

¶ 2 The legislature codified the attorney-client privilege in RCW 5.60.060(2)(a). “The attorney-client privilege ‘is the oldest of the privileges for confidential communications known to the common law.’ Its aim is ‘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.’ ” ¹ The United States Supreme Court's decision in Upjohn Co. v. United States, 449 U.S. 383, 386, 390, 101 S.Ct. 677, 66 L.Ed.2d 584 (1981) holds that the attorney-client privilege extends to corporate clients. This remains the law today.²

¶ 3 The legislature has also enacted a physician-patient privilege statute, RCW 5.60.060(4). That privilege aims to “protect[ ] the sanctity” of the doctor-patient relationship; to recognize that the “ ‘relationship between physician and patient is “a fiduciary one of the highest degree ... involv[ing] every element of trust, confidence and good faith’ ” [;] to surround patient-physician communications with a cloak of confidentiality to promote proper treatment by facilitating full disclosure of information”; and “to protect the patient from embarrassment or scandal which may result from revelation of intimate details of medical treatment.” ³Loudon, barring ex parte contacts, is designed in part to safeguard that privilege. As discussed below, it survives the 1986 and 1987 amendments to the physician-patient privilege statute. The physician-patient privilege and the bar on defense counsel's ex parte contacts with a plaintiff-patient's nonparty treating physician thus also remain the law of our state.

¶ 4 In these consolidated medical malpractice cases, the Upjohn case, which defines the scope of the corporate attorney-client privilege, and the Loudon rule, which creates procedures to protect the physician-patient privilege, conflict. On the one hand, Upjohn would allow corporate counsel to have privileged (confidential and private) discussions with corporate employees, including a plaintiff's nonparty treating physician, to investigate claims and prepare for litigation. On the other hand, Loudon would bar confidential discussions between defense counsel and the plaintiff's nonparty treating physicians about the subject of the litigation—Loudon would require that such preparation take place in the presence of opposing counsel. This court must resolve that conflict.

¶ 5 We reject the suggestion (of plaintiffs and amicus Washington State Association for Justice Foundation (WSAJF)) that the test announced in Wright v. Group Health Hospital, 103 Wash.2d 192, 691 P.2d 564 (1984), resolves the conflict. That test was designed to “prevent situations in which a represented party may be taken advantage of by adverse counsel,” id. at 197, 691 P.2d 564, not to protect the plaintiff's physician-patient privilege or the corporation's attorney-client privilege. We also reject the suggestion (of defendants and amicus Washington Defense Trial Lawyers) that Upjohn completely trumps Loudon. It does not. Upjohn decides which corporate employees' communications with corporate counsel are protected by the attorney-client privilege; it bases this decision on policy determinations about how much confidentiality is needed to further the values upon which the attorney-client privilege is based. Those values are certainly at play in this case—the corporate defendant has a right to advice, counsel, and litigation expertise. Loudon decides something different: the manner in which defense counsel may communicate with a plaintiff's nonparty treating physicians, consistent with the physician-patient privilege. Loudon bases this decision primarily on the policy concerns underlying that privilege, that is, the need to protect patient confidentiality and foster the fiduciary relationship between such physicians and their patients. Those concerns are also at play in these cases—the plaintiff-patients who may have suffered injury due the defendants' negligence should not be forced to suffer the additional injury of a privacy invasion implicating the most intimate details about their bodies and health.

¶ 6 To protect the values underlying both the physician-patient and the attorney-client privileges, we adopt a modified version of the Upjohn test in this context. Under this test, 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 meets the general prerequisites to application of the attorney-client privilege,⁴ the communication is with a physician who has direct knowledge of the event or events triggering the litigation, and the communications concern the facts of the alleged negligent incident.

¶ 7 As always, the attorney-client privilege protects the privileged communications only—not the facts transmitted in those communications. Facts are proper subjects of investigation and discovery, even if they are also the subject of privileged communications. Wright, 103 Wash.2d at 195, 691 P.2d 564 (citing Upjohn, 449 U.S. at 395–96, 101 S.Ct. 677). Hence, Wright still governs ex parte contacts between plaintiff's counsel and the corporate-defendant's employees—even if they are the same physician-employees who might have privileged conversations with corporate counsel.

FACTS

1. Youngs v. PeaceHealth

¶ 8 Plaintiff Marc Youngs was admitted to defendant PeaceHealth's Bellingham, Washington, facility, St. Joseph Hospital, for lung surgery in December 2008. There, he developed sepsis resulting in the loss of both his legs below the knee and both his hands above the wrist. He brought an action against PeaceHealth for negligent postoperative care under the “Doctrine of Corporate Negligence,” the “Doctrine of Respondeat Superior,” and the “Doctrine of Res Ipsa Loquitur”; and “for failure to obtain an informed consent.” Clerk's Papers (CP) at 214. In his complaint, he identified Drs. Richard Leone and Donald Berry as physicians whose conduct gave rise to his lawsuit, but he did not name those doctors as defendants. Mr. Youngs did not object to ex parte contacts between PeaceHealth's defense counsel and Drs. Leone or Berry. But he did object to defense counsel's ex parte contacts with any other physician who treated him at St. Joseph, even though he had responded to interrogatories in a manner that suggested he might bring claims implicating several additional, unidentified physicians. Citing Loudon, Mr. Youngs moved to prohibit “defense counsel from ex parte contact, directly or indirectly, with any of plaintiff Marc Youngs' treating health care providers, with the exception of Dr. Richard Leone, and Dr. Donald Berry.” CP at 251. The trial court granted the motion, and PeaceHealth moved to reconsider. The trial court then reversed, stating that “counsel for PeaceHealth may have ex parte contact with PeaceHealth employees who provided health care to plaintiff Marc Youngs.” CP at 9.

2. Glover v. State of Washington d/b/a Harborview Medical Center

¶ 9 Aolani Glover went to the Harborview Medical Center (Harborview) emergency room on April 2, 2008, after developing chest pain that she said she had never before experienced. Harborview is owned by defendant Washington State and managed by the University of Washington (UW) medical system. Ms. Glover was 28 years old when she visited the Harborview emergency room on April 2 and was apparently otherwise in good health. According to Ms. Glover, she was made to wait about four hours for treatment. Once she...