Virginia Mason Medical Center, V. Michael K. Snyder

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

MICHAEL K. SNYDER, individually,
No. 83526-2-I
Respondent,
DIVISION ONE
v.
UNPUBLISHED OPINION
VIRGINIA MASON MEDICAL
CENTER,

Petitioner,

JARED BRANDENBERGER, MD., and
JOHN and JANE DOE PHYSICIANS,
UNKNOWN JOHN and JANE DOE
NURSES,

Defendants.

CHUNG, J. — Michael Snyder filed suit against Virginia Mason Medical

Center (VMMC) for medical negligence based on injuries incurred after his aorta

was punctured during surgical placement of a dialysis catheter. Three of the

physicians involved in his care are no longer employed by VMMC, but are

insured by VMMC for actions arising out of the care they provided during their

employment. During discovery, it came to light that VMMC counsel had engaged

in ex parte contact with the nonparty physicians.

This case, which comes to this court on discretionary review, concerns the

application of Loudon v. Mhyre, 110 Wn.2d 675, 756 P.2d 138 (1998), which

prohibits defense counsel in a personal injury case from ex parte contact with
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plaintiff’s non-party treating physicians. This case also raises the issues of

whether a showing of prejudice is required for sanctions for Loudon violations

and whether a failure to screen a hospital quality improvement committee

member from litigation precludes the protection of information from discovery

under Washington’s hospital quality improvement (QI) statute, RCW 70.41.200.

We hold that the trial court correctly determined that the Loudon rule

applies and prohibits ex parte contact between VMMC counsel and the former

employee nonparty physicians. We also conclude that the party seeking

sanctions for a Loudon violation must establish prejudice. Finally, while screening

QI committee members from defense counsel in a malpractice action allows

hospitals to engage in their statutory QI obligations while still preserving Loudon

protections, failure to screen does not operate as a waiver of the QI protection.

We therefore affirm the trial court’s rulings regarding the applicability of Loudon

and remand for further proceedings.

BACKGROUND

The allegations in the underlying complaint 1 are as follows: On

January 16, 2018, Snyder underwent a multi-faceted surgical procedure including

placement of a subclavian dialysis catheter at VMMC. Dr. Jared Brandenberger

was the lead surgeon. During placement, the catheter migrated into Snyder’s

chest. Due to this complication, a vascular surgeon was called to the operating

1 As this case is before us on discretionary review of pretrial orders relating to discovery,

the background information herein regarding the incident that gave rise to the lawsuit draws from
the allegations in Snyder’s complaint.

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room to assist. When the catheter was removed, Snyder’s blood pressure

dropped and he became unstable. He suffered a massive hemorrhage

necessitating significant surgical repair, as well as a prolonged cardiac arrest

requiring 20 to 30 minutes of resuscitation. Snyder incurred permanent and

disabling injuries, including a “watershed brain injury.”

Snyder filed suit against VMMC, Dr. Brandenberger, and unknown

physicians and nurses, alleging liability under common law and statutory

negligence, corporate negligence, respondeat superior, and res ipsa loquitur. In

April 2020, VMMC disclosed a list of approximately 100 treating health care

providers who might testify in the case, but did not identify the physicians’ roles in

the surgery. The list was accompanied by the statement: “The identity of those

persons and the relevant knowledge they may possess is more readily available

to plaintiff’s counsel than defense counsel because plaintiff knows the

involvement those providers have had and plaintiff’s counsel can contact those

providers while defense counsel cannot.”

During discovery, Snyder learned that Dr. Aranson was the vascular

surgeon who had been called in to assist, and medical residents Drs. Weslee

Chew and Molly Downey had been involved in placement of the catheter. All

three physicians subsequently left VMMC for employment elsewhere. VMMC

listed all three among the witnesses identified as treating physicians its counsel

“cannot” contact.

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VMMC is self-insured and, under the terms of its employment contract,

provides professional liability insurance to physicians accused of medical

negligence arising out of care provided within the course and scope of their

employment. In such cases, VMMC must provide legal counsel to the physicians.

The physician must fully cooperate with VMMC, its insurers, and appointed

defense counsel in any claim or suit. Upon discovering that Drs. Aranson, Chew,

and Downey were involved in providing the allegedly negligent care and would

likely be deposed in the lawsuit, pursuant to its contractual obligations, VMMC

hired separate counsel for their representation. VMMC contacted the three

physicians to notify them of the litigation and assignment of counsel.

In addition, Michael Glenn, Chief Medical Officer (CMO) at VMMC at the

time, decided to meet personally with Dr. Chew, who by that time had moved to

Prosser, Washington. In his capacity as CMO, Dr. Glenn was on VMMC’s quality

oversight committee and also met monthly with the person in charge of the

residency program. Dr. Glenn had been told Dr. Chew had taken the

complications in Snyder’s case “very hard” and that he knew he would be upset

about the litigation and wanted to support him, as well as explain that the fact

that VMMC retained separate counsel for him did not mean “that we were

blaming him or hanging him out to dry.” Dr. Glenn stated he decided to be the

one to meet with him, given his role as CMO, and that he did not discuss the

surgery or details of the litigation with Dr. Chew.

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During depositions, Snyder’s expert witnesses offered testimony that Dr.

Aranson’s actions during surgery caused the injury. When Dr. Aranson’s counsel

unsuccessfully requested copies of the expert transcripts from plaintiff, VMMC

provided the transcripts to his counsel. Dr. Aranson directed his counsel to file a

motion to intervene in order to protect his interests. The court allowed Dr.

Aranson to intervene as an individual defendant. The claims against Dr. Aranson

individually were eventually dismissed as barred by the statute of limitations, but

the claims against VMMC for his conduct were allowed to continue.

After Dr. Aranson intervened, Snyder made a discovery request for any

communications with nonparty healthcare providers involved in his treatment, as

well as any joint defense agreements, retention agreements, billing guidelines,

and consent or conflict waivers with any of the nonparty health care providers

involved including Drs. Aranson, Chew, and Downey. VMMC moved for a

protective order. Snyder replied that “it became unequivocally clear” that by

disclosing the expert deposition transcripts, VMMC and physicians’ counsel had

“violated the prohibition in Loudon v. Mhyre, 110 Wn.2d 675 (1988) on ex parte

contacts between defendant and plaintiff’s treating physician.”

The trial court appointed a Special Master to review materials produced by

VMMC and to identify any responses “relevant to the issue of [VMMC’s] ex parte

communication” with Snyder’s non-party treating physicians. The Special Master

identified 30 documents that constituted ex parte communications. In September

2021, the court ordered VMMC to produce the documents identified by the

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Special Master to Snyder, overruling VMMC’s privilege objections. Snyder filed a

motion to direct the Special Master to produce all records to the trial court for

reevaluation. On October 2021, the court set a CR 16 conference and reserved

ruling, but provided analysis making it clear that it believed VMMC had violated

the Loudon prohibition and that the common interest privilege did not override the

considerations of Loudon and its progeny. After the CR 16 conference, in

November 2021, the trial court again reserved ruling on in camera review but

concluded that the parties were bound by its analysis of the scope of the Loudon

violation in the October 2021 order. Accordingly, the court ordered VMMC to

produce to Snyder a privilege log VMMC had provided to the Special Master and

to produce to the court for in camera review any correspondence from hospital’s

counsel to the Special Master that had not yet been provided to Snyder.

VMMC then moved the court to allow ex parte privileged communications

with Drs. Aranson, Downey, and Chew. VMMC also filed a notice of discretionary

review of the court’s prior order. The matter was stayed pending resolution of the

motion to allow ex parte communications. On January 7, 2022, the trial court

denied the motion, and VMMC amended its notice of discretionary review to

include the denial.

VMMC produced the privilege log as required by the court order. Snyder

renewed his motion to direct the Special Master to produce all submitted

documents for in camera review. The court denied the motion by order dated

February 11, 2022. Snyder filed a notice of discretionary review of this decision.

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The court subsequently granted Snyder’s motion for reconsideration on March 24

and ordered the Special Master to submit all documents to the court under seal.

Snyder also filed a motion to enforce and compel discovery of quality

assurance documents identified by VMMC in its privilege log as protected by the

QI Committee privilege in RCW 70.41.200(3). After reviewing the documents, the

trial court concluded the documents were protected under the QI Committee

privilege and denied the request on February 22, 2022. On March 14, in a

“conditional” notice of discretionary review, Snyder sought review of this decision

as well as the February 11 order denying in camera review.

Snyder then moved for default judgment against VMMC as a sanction for

Loudon violations. On March 18, 2022, the trial court denied the motion without

prejudice, because “this court lacks the information to determine if the violation

substantially prejudiced plaintiff.” On March 28, Snyder amended his notice of

discretionary review to also seek review of this decision.

A commissioner of this court reviewed the motions for discretionary

review. VMMC’s motion was granted on the narrow issue of “whether Loudon

prohibits defense hospital’s counsel from communicating ex parte with the non-

party physicians whose allegedly negligent care gives rise to the hospital’s

liability.” As to Snyder’s motion, while it did not meet the grounds for discretionary

review, invoking the interests of judicial economy, the commissioner allowed

Snyder to brief, for the court’s consideration as appropriate, two issues: “whether

a showing of prejudice is required for sanctions for Loudon violations and

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No. 83526-2-I/8

whether and to what extent a QI committee member’s participation in the

litigation precludes the hospital’s assertions of the QI privilege.” The

commissioner consolidated the petitions for our review.

DISCUSSION

I. Application of Loudon to VMMC’s Ex Parte Communications with
Snyder’s Nonparty Physicians

VMMC seeks review of the trial court’s orders of October 29, 2021,

November 19, 2021, and January 7, 2022, that conclude that Loudon prohibits

hospital counsel from communicating ex parte with the three nonparty

physicians, Drs. Aranson, Chew, and Downey. We review a superior court’s

discovery order for abuse of discretion. T.S. v. Boy Scouts of Am., 157 Wn.2d

416, 423, 138 P.3d 1053 (2006). A superior court abuses its discretion where the

court’s decision was manifestly unreasonable or made for untenable reasons. Id.

Further, a superior court abuses its discretion if its decision is based on the

wrong legal standard, or on an improper understanding of the law. Id. at 423-24.

A trial court’s interpretation of statutes and judicial decisions constitute issues of

law that we review de novo. Hermanson v. MultiCare Health Sys., Inc., 196

Wn.2d 578, 585, 475 P.3d 484 (2020).

The statutory physician-patient privilege protects physicians from being

compelled, without the consent of their patient, to “be examined in a civil action

as to any information acquired in attending such patient, which was necessary to

enable him or her to prescribe or act for the patient.” RCW 5.60.060(4). A patient

waives the privilege by filing a personal injury suit. RCW 5.60.060(4)(b). Such

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No. 83526-2-I/9

waiver 2 of the privilege “is not absolute, however, but is limited to medical

information relevant to the litigation.” Loudon, 110 Wn.2d at 678. “The danger of

an ex parte interview is that it may result in disclosure of irrelevant, privileged

medical information . . . . The plaintiff’s interest in avoiding such disclosure can

best be protected by allowing plaintiff’s counsel an opportunity to participate in

physician interviews and raise appropriate objections.” Loudon, 110 Wn.2d at

678. Thus, Loudon established that in a personal injury action, “defense counsel

may not engage in ex parte contacts with a plaintiff’s physicians.” Id. at 682.

Stated another way, “Loudon clearly establishes a patient-plaintiff’s right to

supervise his nonparty physician’s communications with opposing counsel.”

Youngs v. PeaceHealth, 179 Wn.2d 645, 660, 316 P.3d 1035 (2014).

“By protecting against the disclosure of information irrelevant to the

litigation, the Loudon rule furthers a primary purpose of the patient privilege

statute—protecting patient confidentiality—even though the plaintiff has waived

the absolute privilege from discovery about relevant matters.” Youngs, 179

Wn.2d at 659 (emphasis added). In addition to furthering the patient’s

confidentiality interest, the Youngs court recognized three “distinct functions” that

the Loudon rule also serves: it protects the doctor-patient fiduciary relationship; it

protects the physician’s interest in avoiding inadvertent wrongful disclosures; and

2 At the time of Loudon, the physician-patient privilege did not include a waiver provision,

but a “judge-made waiver . . . was already well established when Loudon was decided.” Youngs
v. PeaceHealth, 179 Wn.2d 645, 657-58, 316 P.3d 1035 (2014). Subsequent to Loudon, in 1986
and 1987, the legislature amended the physician-patient privilege to include an automatic waiver
90 days after a plaintiff files a claim for personal injury or wrongful death. Id. at 658; RCW
5.60.060(4).

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No. 83526-2-I/10

“it aids in proper trial administration, preventing the occasion from arising where

defense counsel might be called to testify as an impeachment witness.” Id. at

659-60.

In Youngs, 179 Wn.2d at 650, the court “created an exception” to the

Loudon rule when it conflicts with the corporate attorney-client privilege.

Hermanson, 196 Wn.2d at 586 (describing Youngs). The court considered

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.” Youngs, 179 Wn.2d at 650. This required the court to balance the

patient-physician interests defined in Loudon with the purposes of the attorney-

client privilege. Id. Because, the purposes of the attorney-client privilege are to

“ ‘facilitate[] the full development of facts essential to proper representation of the

client [and] . . . encourage[] lay[people] to seek early legal assistance,’ ” the

attorney-client privilege can apply to corporate counsel’s communications with

nonmanagerial employees. Youngs, 179 Wn.2d at 662 (quoting Upjohn Co. v.

United States, 449 U.S. 383, 391, 101 S. Ct. 677, 66 L. Ed. 2d 584 (1981)). The

Youngs court noted that while Loudon and Upjohn protect different types of

communication, they conflict because

certain ex parte communications between a hospital’s corporate
defense counsel and hospital employees may be protected by
Upjohn but barred by Loudon. Indeed, depriving counsel of the
ability to communicate confidentially with a client damages the
privilege just as much as disclosing a prior communication
[between physician and patient] does.

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Youngs, 179 Wn.2d at 662-63. The court resolved the conflict by holding “that the

corporate attorney-client privilege trumps the Loudon rule where an ex parte

interview enables corporate counsel ‘to determine what happened’ to trigger the

litigation.” Youngs, 179 Wn.2d at 664 (quoting Upjohn, 449 U.S. at 392). The

court explained,

Under this rule, corporate defense counsel may have 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, 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. The Loudon rule still bars ex parte
interviews as to information about prior and subsequent treatment
(i.e., information about the plaintiff’s particular vulnerabilities or the
nature of the plaintiff’s recovery or disabilities). This rule strikes the
proper balance between the attorney-client and physician-patient
privileges, limiting Loudon’s prophylactic protections to the extent
necessary to protect a corporate defendant’s right to fully
investigate its potential liability.

Youngs, 179 Wn.2d at 664-65. The court concluded by “reiterat[ing] that the

attorney-client privilege protects communications, but not the facts underlying

those communications.” Id. at 665. 3

In Newman v. Highland School District No. 203, the Supreme Court limited

the corporate attorney-client privilege, 4 holding it did not extend to former

employees. 186 Wn.2d 769, 780, 381 P.3d 1188 (2016). The court reasoned that

3 The Youngs court also declined to distinguish between written communications and ex

parte interviews. 179 Wn.2d at 665 (citing Smith v. Orthopedics Int’l, Ltd., 170 Wn.2d 659, 244
P.3d 939 (2010)).
4 Newman was not in the Loudon context and did not involve the physician-patient

privilege; it involved counsel for a school district and former football coaches whose actions were
alleged to have given rise to plaintiff’s injuries. 186 Wn.2d at 774-76.

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former employees categorically differ from current employees with respect to the

interests underlying the attorney-client privilege, as termination of the employer-

employee relationship generally means that the former employee can no longer

bind the employer and no longer owes a duty of loyalty and confidentiality to the

employer. Id. at 780. “Without an ongoing obligation between the former

employee and employer that gives rise to a principal-agent relationship, a former

employee is no different from other third-party fact witnesses to a lawsuit, who

may be freely interviewed by either party.” Id. at 780-81.

In the Supreme Court’s most recent case addressing the Loudon rule,

Hermanson, the court allowed MultiCare to have ex parte communications with a

physician who was an independent contractor, not a MultiCare employee,

pursuant to the attorney-client privilege. 196 Wn.2d at 581. Relying on Newman,

the court reasoned that although the physician, Dr. Patterson, was an

independent contractor, he “maintain[ed] a principal-agent relationship with

MultiCare such that they should be allowed to have ex parte communications

limited by our holding in Youngs.” Hermanson, 196 Wn.2d at 587-88. “MultiCare

control[led his] conduct by ensuring he abide[d] by MultiCare’s policies and

procedures,” id. at 588-89, and unlike most independent contractors who work on

a project-by-project basis, Dr Patterson “constantly perform[ed] work in a

MultiCare facility that is consistently monitored by MultiCare,” so he was the

“functional equivalent” of a MultiCare employee. Id. at 589-90. Thus, the

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defendant hospital was permitted ex parte communications with the physician,

“limited to the facts of the alleged negligent event.” 5 Id. at 590.

Here, the nonparty treating physicians are former employees of the

defendant hospital. Snyder contends that Loudon applies and the corporate

attorney-client privilege does not allow for ex parte communication with non-

employees. VMMC claims that the rationale of Loudon does not apply “where the

plaintiff has placed the care of the targeted physicians at issue, proclaimed them

his legal adversaries, and thereby waived any physician/patient privilege that

would otherwise apply.”

More specifically, VMMC argues first, that “Loudon does not bar contact

between corporate counsel and providers whose care is said to give rise to

vicarious liability of the corporation.” Brief of App. at 28. Thus, VMMC seeks an

exception to the Loudon rule when the only treatment provided by the nonparty

physician is the conduct at issue in the lawsuit. But the Hermanson court

considered—and rejected—the parties’ arguments “regarding whether

MultiCare’s alleged vicarious liability for [the physician’s] actions affects whether

MultiCare and [the physician] should be allowed to have ex parte

communications.” 196 Wn.2d at 590. The court explained, “Whether there is

5 In Hermanson, the plaintiff did not bring claims for medical malpractice, but for

negligence, defamation/false light, false imprisonment, violation of the physician-patient privilege,
and unauthorized disclosure of his health information. Id. at 583. After Hermanson sideswiped a
vehicle and crashed into a utility pole, he received care at a hospital owned by MultiCare,
including from Dr. Patterson. Id. at 582. During his treatment, an unidentified person at the
hospital gave him a blood test that showed a high blood alcohol level, and someone reported this
information to the police, who subsequently charged Hermanson with negligent driving and hit
and run of the vehicle. Id. at 582-83.

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vicarious liability between two defendants is separate from whether such parties

may have ex parte communications with one another under evidentiary privilege.”

Id. at 590. When the physician is still an employee of the corporate defendant, or

maintains a principal-agent relationship, as in Hermanson, then Youngs applies,

and the Loudon rule gives way to the attorney-client privilege. But once the

physician no longer retains that agency relationship, under Newman, they are

third-party fact witnesses to a lawsuit, and the attorney-client privilege does not

protect their communications with their former employer—even if their conduct is

at issue in the lawsuit, as it was in Newman. See Newman, 186 Wn.2d at 774. 6

VMMC also suggests the rationale for barring ex parte contact under

Loudon rule does not apply here. 7 VMMC argues that because Drs. Aranson,

Chew, and Downey had no post-discharge relationship with Snyder that would be

“chilled” and because Snyder himself placed the care at issue, there was no

danger that irrelevant, privileged medical information would be disclosed. But the

6 As here, in Newman, the communications between corporate counsel and the former

employees as to which the corporate defendant claimed attorney-client privilege occurred after
the former employees left the defendant’s employment. See Newman, 186 Wn.2d at 775-76 &
n.1. But unlike here, at the time of the communications at issue in Newman, the non-employee
witnesses were not represented by the counsel appointed by the corporate defendant. Id. at 774
(trial court ruled that defendant school district’s counsel could not represent the non-employee
witnesses in the future).
7 Further, VMMC’s reliance on Holbrook v. Weyerhaeuser Co., 118 Wn.2d 306, 822 P.2d

271 (1992), to suggest that Loudon does not apply is misplaced. Holbrook was an industrial
insurance claim, for which the governing statute states, “[a]ll civil actions and civil causes of
action for such personal injuries . . . are hereby abolished,” except as provided in Chapter 51.04
RCW. Id. at 310-11. Then, RCW 51.04.010 expressly removes the physician-patient privilege in
“all hearings, actions, or proceedings” in such cases, whether before the department, board of
industrial insurance appeals, or a court on appeal from the board. This statutory removal of
privilege in this particular kind of case does not provide a basis for determining the Loudon rule
should not apply to a medical negligence case such as this.

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fact that Snyder brought suit based on the physicians’ conduct does not entirely

waive the privilege; “[w]aiver is not absolute, however, but is limited to medical

information relevant to the litigation.” Loudon, 110 Wn.2d at 678. “[The Loudon

court’s] analysis makes clear that a waiver of the patient privilege triggers, rather

than cancels, the Loudon protections.” Youngs, 179 Wn.2d at 658. Further,

Loudon’s protections do not depend on whether the physician treated the patient

only once or has an ongoing relationship, and Loudon does not require an inquiry

into whether the communications between patient and physician in a specific

case are in fact chilled. The underlying premise of Loudon is that a physician who

has treated the patient holds some information that is relevant to the claim, and

there is a danger of disclosure beyond that information.

Even if in fact the physician’s treatment was limited to the conduct that is

at issue, and thus has only information relevant to the claim, there are other

hazards that the Loudon rule is intended to prevent by limiting defense counsel’s

ex parte contact with treating physicians. In a case such as this, where the

physicians’ conduct is the basis for the claims, the concern about ex parte

contact is heightened because the hospital has an incentive to shape the

physicians’ presentation of the relevant facts. The plurality in Smith recognized

this additional hazard of ex parte contact: “[P]ermitting contact between defense

counsel and a nonparty treating physician outside the formal discovery process

undermines the physician’s role as a fact witness because during the process the

physician would improperly assume a role akin to that of an expert witness for

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the defense.” 170 Wn.2d at 668. This potential for the nonparty treating physician

to assume the role of a nonretained expert for the defense could chill

communications between patient and physician. Id. The plaintiff-patient may

choose to waive the protection and allow such ex parte contact, 8 but defense

counsel may not simply decide on its own to engage in such ex parte contact

without leave, as happened in this case.

VMMC argues that if Loudon does not apply, application of attorney-client

privilege is not necessary to overcome it. App. Reply at 17. VMMC also suggests

that Newman does not prohibit ex parte contact with prior employees, and,

because its argument “is not premised on the existence of any attorney-client

privilege between its counsel and the targeted providers,” it may “ ‘freely

interview[]’ ” the physicians, who are “ ‘no different from other third-party fact

witnesses.’ ” Brief of App. at 44, 46 (quoting Newman, at 780-81). But this

argument completely sidesteps the core protection at issue here that limits

VMMC’s ex parte contact in the first place. The Loudon protection is grounded

not only in the physician-patient privilege, but in the recognition that “the

8 This was the situation in both lawsuits that were consolidated in Youngs. Plaintiff Marc

Youngs did not object to ex parte contacts between PeaceHealth’s defense counsel and the two
doctors he identified whose conduct gave rise to his lawsuit, but he did object to ex parte contact
with any other physician who treated him at St. Joseph (a PeaceHealth facility), even though he
had suggested in discovery responses that he might bring claims against several additional,
unidentified physicians. Youngs, 179 Wn.2d at 654. In the companion case, plaintiff Aolani Glover
brought suit based on treatment by Harborview emergency room staff. Id. at 655. Initially she
objected to defense counsel’s ex parte communications with her treatment physicians at
Harborview outside the emergency department. Later, she removed her objections to those
contacts as long as those individuals were not shown any records of her subsequent care at UW
Medical Center (UWMC). Id. at 656. In response, the trial judge issued an order prohibiting
defense counsel from ex part contact with only her treating physicians at UWMC. Id.

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‘relationship between physician and patient is ‘a fiduciary one of the highest

degree . . . involv[ing] every element of trust, confidence and good faith.’ ”

Youngs, 179 Wn.2d at 651 (quoting Smith v. Orthopedics Intern., Ltd., 170

Wn.2d 659, 667, 244 P.3d 939 (2010)). The fiduciary relationship does not

disappear when the physician leaves the employ of a particular employer. 9

Having stated that its argument “is not premised on” the attorney-client

privilege, VMMC contends the common interest privilege applies, and that this

privilege, too, trumps the Loudon protections. Brief of App. at 52. But the trial

court found VMMC had not established “any joint representation agreement or

other means by which [physicians’ counsel] had a privileged relationship with

counsel for and/or representatives for Virginia Mason.” “Under the ‘common

interest’ rule, ‘communications exchanged between multiple parties engaged in a

common defense remain privileged under the attorney-client privilege.’ ” Broyles

v. Thurston County, 147 Wn. App. 409, 442, 195 P.3d 985, (2008) (quoting

C.J.C. v. Corp. of Catholic Bishop of Yakima, 138 Wn.2d 699, 716, 985 P.2d 262

(1999)). The application of the common interest doctrine depends on a factual

determination that a common interest or joint representation or defense

agreement exists. See Kittitas County v. Allphin, 195 Wn. App. 355, 368, 381

P.3d 1202 (2016) (one of the requirements for application of the common interest

privilege is that “the communication was made by separate parties in the course

9 In addition, VMMC’s argument ignores that the physicians here are represented by

counsel, and, thus, they may not “freely interview” them, as ethical rules limit direct contact with
represented parties. RPC 4.2.

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of a matter of common interest or joint defense”); Morgan v. City of Fed. Way,

166 Wn.2d 747, 757, 213 P.3d 596 (2009) (Morgan failed to provide any

evidence demonstrating a common legal interest). VMMC did not challenge the

trial court’s finding that there was no such agreement. Therefore, we do not

address whether the common interest doctrine could trump the Loudon

protections and can be a basis for ex parte communications, as the factual

record does not present this issue.

Finally, VMMC argues that because it insures its physicians for acts taken

during the course of their employment, it must be allowed to contact its insureds.

The physicians’ employment contracts obligated VMMC to insure and provide

legal counsel for them. VMMC states that as their “insurer,” VMMC arranged for

the physicians to have separate counsel and paid for the representation. But an

arrangement to pay for the representation does not equate to a privilege to which

the physician-patient privilege and the Loudon protections must give way. The

exception in Youngs relied on the important purposes for the attorney-client

privilege, and the need for corporate counsel to determine what happened to

trigger the litigation. Youngs, 179 Wn.2d at 645. An agreement to pay for a

physician’s defense does not involve the same concerns or serve the same

purposes as the corporate attorney-client privilege. 10 Indeed, in Hermanson, our

10 While an insured’s statements to its insurer are protected from discovery under CR

26(b), the purpose for this protection is not the same as the purposes underlying the attorney-
client privilege. See Heidebrink v. Moriwaki, 104 Wn.2d 392, 400-01, 706 P.2d 212 (1985)
(extension of work product protection under former CR 26(b)(3), now CR 26(b)(4), “comports with
the policy of maintaining certain restraints on bad faith, irrelevant and privileged inquiries and
helps to ensure the just and fair resolution of disputes”).

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Supreme Court rejected the argument that a corporation could enter into a

representation agreement with the physician and thereby trump the Loudon rule

and be allowed ex parte contact. Hermanson, 196 Wn.2d at 590 n.1. 11 The court

reasoned that this argument “would allow any corporation to circumvent a

plaintiff’s physician-patient privilege by entering into a representation agreement

with a treatment physician, rendering the physician-patient privilege moot

whenever the corporation chooses.” Id. We decline to limit the Loudon prohibition

on ex parte contact.

In sum, the Loudon rule prohibits ex parte contact with nonparty

physicians, unless the communication is subject to the corporate attorney-client

privilege. “Loudon does not prohibit the acquisition of knowledge; it merely

imposes procedural safeguards to prevent improper influence or disclosures.”

Youngs, 179 Wn.2d at 670. As the Loudon court noted, “any hardship [to] the

defendants by having to use formal discovery procedures outweighs the potential

risks involved with ex parte interviews,” and “[d]efendants may still reach the

plaintiff’s relevant medical records,” may conduct depositions, and “plaintiff’s

11 MultiCare had retained counsel to jointly represent it, the physician who treated the

plaintiff, and the physician’s employer, Trauma Trust, which was an entity created by MultiCare,
even though the physician and his employer were not defendants to the action, and filed a motion
for a protective order allowing it to have ex parte communications with the physician. Hermanson,
196 Wn.2d at 583. As discussed above, the court nonetheless ruled that MultiCare could engage
in ex parte contact with the physician, limited to the facts of the alleged negligent event, because
under Youngs, the physician was the functional equivalent of an employee, and, thus, was
protected by the corporate attorney-client privilege. Id. at 590.

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counsel may agree to an informal interview with both counsel present.” 110

Wn.2d at 680.

VMMC has not established any basis for disregarding the Loudon rule as

applied to its communications with its former employees and nonparty fact

witnesses, Drs. Aranson, Chew, or Downey. The trial court did not err in

determining that VMMC’s ex parte communications with Snyder’s physicians

violated Loudon.

II. Sanctions for Loudon Violations

As the trial court properly determined VMMC had engaged in ex parte

contact in violation of Loudon, we next address Snyder’s challenge to the trial

court’s denial of his motion for default judgment as a sanction, but limited to the

issue on which the commissioner allowed briefing: “whether a showing of

prejudice is required for sanctions for Loudon violations.”

After the court concluded that VMMC had violated Loudon, Snyder filed a

motion for default judgment. The trial court denied the motion without prejudice,

stating that “based upon the information contained within the record, at this time,

this court lacks the information to determine if the violation substantially

prejudiced plaintiff.” Snyder contends the trial court improperly required him to

prove prejudice in order to sanction VMMC for its Loudon violations. VMMC

argues that prior case law establishes that the moving party bears the burden of

demonstrating prejudice for sanction.

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We review a trial court’s decision regarding sanctions for discovery

violations for abuse of discretion. Magana v. Hyundai Motor Am., 167 Wn.2d 570,

582-83, 220 P.3d 191 (2009). A trial court abuses its discretion if its decision is

manifestly unreasonable or based on untenable grounds or untenable reasons.

J.K. by Wolf v. Bellevue Sch. Dist. No. 405, 20 Wn. App. 2d 291, 303, 500 P.3d

138 (2021). We review de novo whether a trial court applied the correct legal

standard in assessing sanctions for a discovery violation. Id. at 303. A trial court’s

decision is an abuse of discretion if based on an incorrect legal standard or the

facts do not meet the requirements of the correct legal standard. In re Marriage

of Littlefield, 133 Wn.2d 39, 47, 940 P.2d 1362 (1997).

In Smith, the plurality opinion concluded that rather than presuming

prejudice, a plaintiff must prove prejudice for sanctions due to Loudon violations:

In our view, the more reasonable approach is for the trial court to
determine, on the basis of the particular circumstances before it,
whether the plaintiff suffered actual prejudice from defense
counsel’s prohibited ex parte contact with a nonparty treating
physician or the physician’s counsel and to impose a remedy that is
appropriate to the degree of prejudice.

170 Wn.2d at 672. This would require the moving party to show actual harm from

the violation. Id. The plurality reasoned, “[i]t makes sense for the moving party to

carry the burden of proof on this issue because that party has the greatest

interest in perceiving and defending against prohibited ex parte contact between

opposing counsel and a nonparty treating physician.” Id.

Snyder notes correctly that two justices in Smith found no Loudon violation

and did not reach the issue of the proper burden of proof. Smith, 170 Wn.2d at

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674-77 (Fairhurst, J., concurring, joined by Madsen, J.). And four justices

concurred that there was a Loudon violation, but dissented as to the correct

burden. Id. at 678-79 (C. Johnson, concurring in part and dissenting in part). The

dissenting judges reasoned that the plaintiff “has the least control over preventing

the harm to begin with,” so when there is a violation, the remedy is to grant a new

trial. Id. at 678-79.

The Smith plurality opinion, however, cites to several Court of Appeals

cases in support of the need to show prejudice in order to obtain sanctions for

Loudon violations. 170 Wn.2d at 671-72 (citing the same case below, Smith v.

Orthopedics Intern., Ltd., 149 Wn. App. 337, 343, 203 P.3d 1066 (2009); Ford v.

Chaplin, 61 Wn. App. 896, 899, 812 P.2d 532 (1991); and Rowe v. Vaagen Bros.

Lumber, Inc., 100 Wn. App. 268, 278-80, 996 P.2d 1103 (2000)). In each of

these cited cases, the court considered prejudice without explicitly stating that

the plaintiff bore the burden to show it. In Rowe, the court held the redaction of

certain portions of trial testimony after a Loudon violation was not an effective

cure for inherent prejudice that had already occurred. 100 Wn. App. at 278-80. In

Ford, counsel for the party who had suffered the Loudon violation had not

explored the communication at trial, “even by way of an offer of proof to preserve

the issue for appeal,” and no deposition was in the record, so there was no basis

for comparing testimony after the ex parte contact. 61 Wn. App. at 899. Thus, the

court held although there was error, it was harmless where the record did not

permit determination of “whether the ex parte contact materially prejudiced the

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plaintiff’s case.” Id. And in Smith, the Supreme Court agreed with the Court of

Appeals that “there are circumstances where such a violation does not affect the

fundamental fairness or outcome of a trial.” 170 Wn.2d at 672.

As VMMC notes, sanctions for discovery violations generally require a

showing that the failure to comply “substantially prejudiced the opponent’s ability

to prepare for trial.” Burnet v. Spokane Ambulance, 131 Wn.2d 484, 494, 933

P.2d 1036 (1997). As a Loudon violation is a type of discovery violation, the

same showing of prejudice should be required for sanctions. We see no basis for

crafting a different standard that shifts the burden to the party that violated the

rule for every Loudon violation. The effect of a Loudon violation will be highly

fact-specific. A showing of prejudice will depend on when the violation occurred,

the degree of the violation (e.g., sending one public document to the physician

versus extensive meetings and coaching sessions with a physician witness), and

the stage of litigation (e.g., prior to any depositions or mid-trial).

We therefore conclude that the plaintiff bears the burden of establishing

that the violation resulted in prejudice. This standard is in accord with other types

of violations and enables the trial court, who is in the best position to assess the

degree of prejudice, to determine the appropriate sanction in its discretion.

III. Quality Improvement (QI) Privilege

The commissioner granted Snyder permission to brief “whether and to

what extent a QI committee member’s participation in the litigation precludes the

hospital’s assertion of the QI privilege.” His brief phrases the issue as “[w]hether

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documents provided to a QI committee that do not reflect the ‘inner workings’ of

the committee are protected from discovery when defendant has not screened QI

members from participants in litigation over the care at issue?” Snyder contends

that QI committee members were not screened from litigation and defense

counsel, and therefore, VMMC waived its QI privilege and could not properly

withhold records. VMMC argues that the QI immunity is “un-waivable” and that

the court properly denied Snyder’s request for production of QI-protected

materials.

Every hospital must maintain a QI program, including a QI committee with

“the responsibility to review the services rendered in the hospital . . . in order to

improve the quality of medical care of patients and to prevent medical

malpractice.” RCW 70.41.200(1)(a). The QI committee “oversee[s] and

coordinate[s] the quality improvement and medical malpractice prevention

program and shall ensure that information gathered pursuant to the program is

used to review and to revise hospital policies and procedures.” RCW

70.41.200(1)(a).

“To ensure a candid discussion about the quality of health care by

hospitals, the legislature shielded from discovery a hospital’s quality review

committee records.” Lowy v. PeaceHealth, 174 Wn.2d 769, 775, 280 P.3d 1078

(2012). Thus, documents “created specifically for, and collected and maintained

by, a quality improvement committee are not subject to disclosure . . . or

discovery or introduction into evidence in any civil action.” RCW 70.41.200(3). As

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“the majority of records a hospital creates might be somehow related to the

quality of care it provides,” the exemption in RCW 70.41.200(3) “serves as a

legislative limit on the protection and prevents a hospital from ‘funneling records

through its [QI] committee’ to prevent disclosure.” Seattle Children’s Hosp. v.

King County,16 Wn. App. 2d 365, 375, 483 P.3d 785 (2020) (quoting Fellows v.

Moynihan, 175 Wn.2d 641, 655, 285 P.3d 864 (2012)). This protection includes

only “documents created as part of the inner workings of the committee” and

does not include information that merely “goes into or comes out of the [QI]

committees.” Lowy, 174 Wn.2d at 787 (emphasis added).

Snyder’s argument stems from Youngs. In Youngs, defendants argued

that because the QI statute required them to collect information concerning their

patients’ negative health care outcomes and protected that information from

discovery, the Loudon rule could not be applied to prevent them from

communicating with hospital employees. Youngs, 179 Wn.2d at 668-69. The

court disagreed, noting first that the QI requirements and privilege and Loudon

“have coexisted, apparently successfully, for over 25 years.” Id. at 669. The

solution described by the Youngs court was not to override Loudon and allow ex

parte contact with nonparty hospital employee witnesses, but to screen QI

committee members from defense counsel:

The QI statute precludes restrictions on communications between a
hospital’s QI committee and its physicians, but the committee
members can be screened from defense counsel in a malpractice
action. Such screening will preserve Loudon’s protections for
patient-plaintiffs, while also allowing hospitals to meet statutory
requirements for quality improvement. This screening preserves the

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integrity of the QI process, allowing the QI committee to meet its
statutory requirement to collect and maintain information
“specifically for” QI purposes.

Youngs, 179 Wn.2d at 669.

According to Snyder, VMMC did not screen CMO Dr. Glenn, from this

litigation or from defense counsel. 12 VMMC’s privilege log shows Dr. Glenn as a

participant in a QI committee meeting on July 23, 2018. Yet Dr. Glenn also met

ex parte with Dr. Chew, along with Dr. Chew’s counsel, after the litigation

commenced. VMMC’s witness list also included “Michael Glenn, MD and/or

current VMMC Representative.” Thus, Snyder contends, VMMC cannot assert

any QI privilege in this case. VMMC responds that there is no evidence that Dr.

Glenn provided any QI-protected information to Dr. Chew or had any influence on

his later testimony. Dr. Glenn provided a declaration attesting that his 20 to 30

minute meeting with Dr. Chew and his counsel was limited to explaining why Dr.

Chew had a lawyer separate from VMMC and expressing support, and he did not

discuss the surgical case with Dr. Chew.

Snyder’s waiver argument is overly sweeping and unavailing. As noted

above, the purpose of the screening proposed in Youngs is two-fold: to ensure

hospitals can meet their statutory requirements under the QI statute, and also to

preserve Loudon protections by preventing defense counsel from ex parte

12 Initially, Snyder also asserted that VMMC did not screen its risk manager, Pat

Nishikawa, and that Nishikawa was passing information between the QI committee and litigation
counsel. But the only evidence in the record on this point, the declaration of VMMC Director of
Risk Management Operations Karen Markwith, indicates that Nishikawa was not a participant in
any QI committee that reviewed the care in this case.

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No. 83526-2-I/27

communications with committee members. Youngs proposes screening as a

possible preventative for ex parte communications, but does not require it under

threat of waiver of the privilege. If this screening is not done, and the result is a

Loudon violation, then the trial court must determine the proper remedy based on

the nature of the prejudice and the particular circumstances.

We cannot say that a failure to screen warrants a complete waiver of the

QI privilege for all evidence as to which the privilege is asserted. On this record,

the trial court properly upheld VMMC’s assertion of the QI privilege and properly

did not compel disclosure of the documents. 13

IV. Fees on Appeal

VMMC requests an award of attorney fees “incurred in researching and

responding to Mr. Snyder’s requests for relief that were not accepted for review.”

According to VMMC, Snyder violated RAP 2.4(a) and fees are warranted under

RAP 18.9(a), which allows for sanctions for failure to comply with the Rules of

Appellate Procedure. In support, VMMC cites Pugel v. Monheimer, 83 Wn. App.

688, 693, 922 P.2d 1377 (1996), where Monheimer failed to timely file a cross-

appeal but submitted a brief assigning error and making claims for relief in

violation of RAP 2.4(a). Pugel responded to the claims for relief in his reply brief.

The court noted that Pugel could have moved to strike the brief, but awarded

13 We do not address Snyder’s additional arguments that the trial court erred in failing to

order additional production of documents either to him or for in camera review, as the grant of
discretionary review did not include those issues. Snyder is not precluded from challenging
VMMC’s assertion of QI privilege as to specific information or documents, or from seeking
sanctions upon a showing of prejudice, if additional information is discovered that would support
such requests.

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fees because “unquestionably Monheimer’s violation of the rules caused more

work for Pugel.” Id. Snyder claims that Pugel is inapposite because unlike the

party in Pugel, he timely sought review and submitted a brief addressing the

issues on review “that will remain in the case regardless” because of the

continuing litigation.

VMMC fails to identify with precision the briefing that exceeds the issues

accepted for review. We therefore decline to award VMMC the requested fees on

appeal.

CONCLUSION

We affirm the trial court’s conclusion that the Loudon rule prohibited ex

parte contact between VMMC and the nonparty physicians and that a party

seeking sanctions for a Loudon violation must establish prejudice. We further

conclude that the failure to screen a QI committee member from litigation does

not result in automatic waiver of the protection afforded to all evidence protected

from discovery under the QI statute. Finally, as this case is here on interlocutory

review, we remand to the trial court for further proceedings.

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WE CONCUR:

29