Supreme Court Parses Intersection of Doctor-Patient and Attorney-Client Privileges in Medical Malpractice
On Oct. 1, the Washington Supreme Court issued an opinion parsing the difficult intersection of the doctor-patient and attorney-client privileges in medical malpractice cases.
In Snyder v. Virginia Mason Medical Center, __ Wn.3d __, 2026 WL 2945771 (Wn. Oct. 1, 2026), the plaintiff alleged medical negligence during surgery at Virginia Mason Medical Center. Virginia Mason and the lead surgeon were the only defendants. Three other doctors were involved in the surgery but had since left Virginia Mason. Virginia Mason provided the latter three with separate counsel, but they were not parties to the case.
During discovery, a dispute arose over the extent, if any, Virginia Mason or its attorneys could contact the three nonparty doctors outside the presence of Snyder’s lawyers. Under Loudon v. Mhyre, 110 Wn.2d 675, 756 P.2d 138 (1988), defense counsel in medical malpractice cases are generally prohibited from contacting a claimant’s nonparty physicians ex parte to protect the physician-patient privilege. Rather, defense counsel generally either need to take their depositions as fact witnesses or conduct informal interviews withthe consent of plaintiff’s counsel. Youngs v. PeaceHealth, 179 Wn.2d 645, 316 P.3d 1035 (2014), tempered Loudon in the corporate context by holding that defense counsel for a corporate entity like a hospital could contact its employee-physicians directly about the treatment at issue and those conversations would fall within the corporate employer’s attorney-client privilege. Hermanson v. MultiCare Health Sys., Inc., 196 Wn.2d 578, 475 P.3d 484 (2020), extended Youngs to independent contractor physicians who, while not direct employees of a hospital, are the functional equivalent.
In Snyder, however, the doctors were former employees by the time they were contacted. In Newman v. Highland School District No. 203, 186 Wn.2d 769, 381 P.3d 1188 (2016), the Supreme Court found that the contacts between corporate counsel and former employees are not generally protected by the attorney-client privilege. Snyder argued, therefore, that Virginia Mason’s contacts with the former employee-doctors did not fall within Youngs and instead were prohibited by Loudon. The question went up on interlocutory review—first to the Court of Appeals and then on further review by the Supreme Court.
The Supreme Court concluded that because the nonparty doctors were former employees, they could not be contacted ex parte under Loudon. Moreover, because the prohibited contacts had already taken place, the Supreme Court remanded the case to the trial court for consideration of potential sanctions.
Snyder merits close review by counsel on both sides of the aisle in medical malpractice litigation as it succinctly summarizes and reinforces the key decisions at the complicated interface between the doctor-patient and attorney-client privileges. For litigators beyond medical malpractice, Snyder also includes discussions of the common interest doctrine and the sanctions for asserted improper invasion of a privilege that potentially have wider application.
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