¶26 (concurring) — I concur in the lead opinion’s result affirming the Court of Appeals’ decision affirming the trial court’s denial of Jerry D. Smith’s motion for a new trial. I write separately because, unlike the lead opinion, I do not believe a Loudon v. Mhyre, 110 Wn.2d 675, 676, 756 P.2d 138 (1988), violation occurred when defense counsel for Orthopedics International Limited sent documents to a nonparty treating physician through that physician’s own attorney.
¶27 I share the lead opinion’s concern for protecting the physician-patient privilege. However, Loudon established that defense counsel may not engage in ex parte contact with plaintiff’s physicians within the context of ex parte interviews. Id. Since Loudon, we have never addressed the meaning of “contact” outside the context of interviews. The lead opinion, by interpreting Loudon as a complete bar on ex parte contact, goes beyond the physician-patient privilege created in RCW 5.60.060(4) and our policy concerns expressed in Loudon.
¶28 Expanding Loudon to include all ex parte contacts is contrary to the very statute that created the privilege. The physician-patient privilege was created by RCW 5.60-.060(4), which states that “a physician ... shall not, without the consent of his or her patient, be examined in a civil action as to any information acquired in attending such patient.” (Emphasis added.) Under RCW 5.60.060(4)(b), the physician-patient privilege is waived 90 days after the filing of a personal injury or wrongful death action. Despite this waiver, the Loudon rule reflects our concern of a nonparty treating physician inadvertently disclosing irrelevant confidential information to the defense.
¶29 Although in Loudon we held ex parte contact is prohibited, we discussed “contact” only in the context of *675interviews. First, we were concerned that “an ex parte interview . . . may result in disclosure of irrelevant, privileged medical information.” 110 Wn.2d at 678 (emphasis added). Next, we stated that “[t]he mere threat that a physician might engage in private interviews with defense counsel would . . . have a chilling effect on the physician-patient relationship and hinder further treatment.” Id. at 679 (emphasis added). Lastly, we stated that “a physician has an interest in avoiding inadvertent wrongful disclosures during ex parte interviews.” Id. at 680 (emphasis added).
¶30 Relying on Loudon, our subsequent cases discuss ex parte contacts only within the context of ex parte interviews. In Carson v. Fine, 123 Wn.2d 206, 227, 867 P.2d 610 (1994), although we explained that “this court held in Loudon that defense counsel may not communicate ex parte with a plaintiff’s treating physicians,” we went on to state that “[t]he [Loudon] court feared that ex parte interviews might result in disclosure of irrelevant, privileged information, and decided that the plaintiff’s interest in avoiding such disclosure could best be protected by allowing plaintiff’s counsel to participate in physician interviews” (Emphasis added.) In Holbrook v. Weyerhaeuser Co., 118 Wn.2d 306, 309-10, 822 P.2d 271 (1992), in determining that the Loudon rule should not be extended to appeals before the Department of Labor and Industries, we discussed the policy concerns of ex parte interviews as explained in Loudon.
¶31 Loudon prohibits the defense from seeking or soliciting information directly from a nonparty treating physician. The defense has a duty to refrain from engaging in conversation directly with the physician outside the presence of the plaintiff’s counsel. This duty stems from the concern that if the defense contacts the physician directly, the physician, who is untrained in the law, may unknowingly respond.
*676¶32 None of that happened in this case. The defense sent documents to the plaintiff’s nonparty treating physician through that physician’s attorney. The defense did not seek and the physician did not provide any information about Brenda L. Smith. Although defense counsel may have attempted to prepare the physician for trial, the type of contact that took place could not have resulted in inadvertent disclosures by the physician and, thus, Loudon was not violated.
¶33 The lead opinion is concerned that Mr. Smith had no way to monitor or review the exchange of the information, but it fails to recognize that contact occurred through the physician’s attorney. Because the defense sent the documents to the physician’s attorney, the attorney was involved to determine whether the defense was seeking disclosure of information and, if necessary, to prevent disclosure. This is consistent with our third concern in Loudon that a physician has an interest in avoiding inadvertent disclosures to avoid a suit for unauthorized disclosure of privileged information. The physician’s attorney, whose primary duty is to act in the physician’s best interest, monitored and reviewed the exchange, ensuring no Loudon violation would occur.
¶34 The lead opinion is also concerned that if a nonparty treating physician received information from defense counsel prior to testifying as a fact witness, there is an inherent risk that the nonparty treating physician’s testimony will be shaped and influenced by that information. Lead opinion at 668. There is no indication that occurred in this case but, even if it did, that concern falls outside the danger of inadvertent disclosures that Loudon addressed. Plaintiff’s counsel had the option of asking on cross-examination whether the defense provided copies of documents. Plaintiff’s counsel argued this was not a remedy because he did not know what was included in the documents. However, cross-examination still could have undermined the physician’s credibility and weight of his testimony if the jury believed he was influenced by the defense.
*677¶35 Finally, as amici curiae Washington State Hospital Association, MultiCare Health System, Group Health Cooperative, and Physicians Insurance A Mutual Company argue, a bright line rule prohibiting ex parte contact is contrary to state law that allows disclosure in some circumstances of health care information without the plaintiff’s authorization. In RCW 70.02.050(l)(b), the legislature permits disclosure of health care information without a patient’s authorization “[t]o any other person who requires health care information ... to provide ... legal... services to, or other health care operations for or on behalf of the health care provider or health care facility.”6 The lead opinion’s creation of a bright line rule prohibiting all ex parte contact results in requiring authorization for disclosures made to health care providers or facilities.
¶36 Loudon should be applied consistently with our concerns that ex parte interviews, or the threat of ex parte interviews, would lead to inadvertent disclosures of irrelevant information. Expanding Loudon to prohibit all ex parte contact would be contrary to statute and our concerns expressed in Loudon.
Madsen, C.J., concurs with Fairhurst, J.RCW 70.02.050(1) provides in relevant part:
A health care provider or health care facility may disclose health care information about a patient without the patient’s authorization to the extent a recipient needs to know the information, if the disclosure is:
(a) To a person who the provider or facility reasonably believes is providing health care to the patient;
(b) To any other person who requires health care information for health care education, or to provide planning, quality assurance, peer review, or administrative, legal, financial, actuarial services to, or other health care operations for or on behalf of the health care provider or health care facility; or for assisting the health care provider or health care facility in the delivery of health care and the health care provider or health care facility reasonably believes that the person:
(i) Will not use or disclose the health care information for any other purpose; and
(ii) Will take appropriate steps to protect the health care information.