¶42 (concurring in part/dissenting in part) — The majority fashions a new rule that allows “an attorney hired by a corporate defendant to investigate or litigate an alleged negligent event [to] engage in privileged (ex parte) communications with the corporation’s physician-employee where the physician-employee has firsthand knowledge of the alleged negligent event and where the communications are limited to the facts of the alleged negligent event.” Majority at 671. This rule is wholly unworkable. Moreover, it erodes the sound policy decision made by this court in Loudon v. Mhyre, 110 Wn.2d 675, 756 P.2d 138 (1988), without justification rooted in either the employer-employee relationship or the attorney-client privilege.
¶43 I would hew to our decision in Loudon, recognizing that the risks we were concerned with there exist equally in *673the context of a medical malpractice action against a corporate defendant. The majority properly recognizes that the Loudon rule is unaffected by changes in the statutory physician-patient privilege, RCW 5.60.060(4)(b), and coexists with Washington’s Uniform Health Care Information Act (UHCIA), chapter 70.02 RCW, and Washington’s hospital quality improvement (QI) statute, RCW 70.41.200.13 Majority at 658, 668-69. It goes astray, however, by seizing on Upjohn Co. v. United States, 449 U.S. 383,101 S. Ct. 677, 66 L. Ed. 2d 584 (1981), as requiring allowance for ex parte contact between corporate defense counsel and the plaintiff’s nonparty treating physicians employed by the corporation. For the reasons explained below, I concur in part and dissent in part from the majority’s resolution of these cases.
DISCUSSION
¶44 This court in Loudon adopted a bright-line rule prohibiting defense counsel from engaging in ex parte contact with the plaintiff’s nonparty treating physicians. 110 Wn.2d at 682; Smith v. Orthopedics Int’l, Ltd., 170 Wn.2d 659, 670, 244 P.3d 939 (2010) (lead opinion). As the majority recognizes, this rule serves several important goals: it safeguards the plaintiff’s confidentiality interest in not having irrelevant personal health care information disclosed; it protects the physician-patient fiduciary relationship and serves the physician’s interest in avoiding inadvertent disclosures that might give rise to liability to the patient; and it serves the administration of justice, avoiding the risk that defense counsel may become an impeachment witness. Majority at 659-60. In the context of medical malpractice litigation, the Loudon rule is particularly important to avoid the risk that the plaintiff’s health care providers might be unduly “shaped and influenced by” ex parte contact or “improperly assume a role akin to that of *674an expert witness for the defense.” Smith, 170 Wn.2d at 668 (lead opinion). Discussing these risks, the lead opinion in Smith quoted favorably from State ex rel. Woytus v. Ryan, 776 S.W.2d 389, 395 (Mo. 1989), “acknowledging that ex parte contact in medical malpractice cases between defense counsel and a nonparty treating physician creates risks that are not generally present in other types of personal injury litigation, including the risk of discussing ‘ “the impact of a jury’s award upon a physician’s professional reputation, the rising cost of malpractice insurance premiums, [and] the notion that the treating physician might be the next person to be sued,” ’ among others.” 170 Wn.2d at 669 n.2 (lead opinion) (alteration in original) (internal quotation marks omitted) (quoting State ex rel. Woytus v. Ryan, 776 S.W.2d 389, 395 (Mo. 1989)).
¶45 Tracing the history of Washington’s rule since Loudon, the majority correctly rejects the argument that the prohibition on ex parte contact rests on the physician-patient privilege and is thus no longer good law after statutory amendments to the privilege created a blanket waiver. Majority at 658-69; see Smith, 170 Wn.2d at 665 (lead opinion), 674 (Fairhurst, J., concurring). This was clear from the instant the issue was stated in Loudon. 110 Wn.2d at 675-76 (“The issue presented is whether defense counsel in a personal injury action may communicate ex parte with the plaintiff’s treating physicians when the plaintiff has waived the physician-patient privilege.” (emphasis added)).
¶46 The majority also correctly rejects the argument that the Loudon rule is incompatible with statutes governing disclosure of personal health care information and protecting information gathered during internal QI reviews. Neither the UHCIA nor the QI statute erodes the policy of Loudon. As the majority observes, “[T]he Lou-don rule and the QI regime have coexisted, apparently successfully, for over 25 years.” Majority at 669. It is certainly possible to segregate litigation activity and QI activity. *675Indeed, our recent decision in Lowy v. PeaceHealth, 174 Wn.2d 769, 778, 280 P.3d 1078 (2012), underscores that the QI statute is not to be used as a shield to alter the balance of interests of either party in litigation.'
¶47 While the majority recognizes the wisdom and continued vitality of the Loudon rule as against these arguments, it loses its way, in my view, when it posits a clash between the Loudon rule and the attorney-client privilege. The majority maintains that a “modified version of the Upjohn test” is needed in the context of corporate medicine to balance the values underlying the physician-patient privilege and the attorney-client privilege. Majority at 653. Thus, it crafts a rule that turns a case about a corporate defendant’s right to shield from disclosure internal employee questionnaires (Upjohn) into an entitlement to interview, ex parte, an opposing party’s treating physician. Ironically, it allows ex parte contact only as to facts concerning “the alleged negligent event,” id. at 671, which are equally available to both parties. How this rule will play out in practice is hard to describe. Apparently, both defense counsel and plaintiff’s counsel can interview the employee physician ex parte, since the majority would recognize that Wright v. Group Health Hospital, 103 Wn.2d 192, 691 P.2d 564 (1984), governs plaintiff’s counsel’s contact with the physician. Majority at 653. But, the corporate defendant can claim attorney-client privilege as to what the plaintiff’s physician tells defense counsel, so the physician cannot relate to the patient what has been disclosed to a litigation adversary about the patient’s health care. Moreover, the employer’s right to interview the employee seems to be unaffected by whether the employee physician shares the attorney-client relationship between the employer and its counsel.
¶48 This last point is critical. Though the majority acknowledges that a corporate employee is not necessarily a party or even corporate counsel’s client, see id. at 661, it *676ultimately concludes Loudon must yield to Upjohn because the protection of privileged communications implies a “corresponding privilege” to conduct ex parte communications. Id. at 663. For support, the majority cites only a criminal case involving a traditional attorney-client relationship, which is quite different from Upjohn, involving after-the-fact treatment of privileged documents created in a corporate setting. Id. at 663-64 (citing Geders v. United States, 425 U.S. 80, 88-91, 96 S. Ct. 1330, 47 L. Ed. 2d 592 (1976)). The lack of supporting authority underscores that the implication the majority derives from Upjohn is not supportable. While the attorney-client privilege encompasses past communications between corporate defense counsel and corporate employees, this does not translate into a right of defense counsel to engage in ex parte communications with all employees once litigation commences. Corporate defense counsel represents the defendant corporation, not its employees. Indeed, counsel cannot corepresent an employer and employee if the duty to one client would be materially limited by the duty to the other. RPC 1.13(g) (referencing RPC 1.7). Potentially conflicting obligations are unavoidable in a medical malpractice action where a nonparty treating physician is both an employee of the defendant and a fiduciary of the plaintiff. If nothing else, the physician needs guidance on what questions she can answer consistent with her fiduciary duty to her patient and whether she can discuss her answers with her patient or the patient’s counsel. The situation is so rife with potential conflicts that courts have recognized the need for corporate counsel to give so-called “Upjohn warnings,” also known as “corporate Miranda[14i warnings,” before questioning employees, to advise them that the corporation is the client and controls waiver of any attorney-client privilege and that the employee may need to obtain independent counsel. See United States v. Ruehle, 583 F.3d 600, 604 n.3 (9th Cir. 2009); RPC 1.13(f) & cmt. 10. Of course, if the *677employee retains independent counsel, RPC 4.2 prohibits ex parte contact by corporate defense counsel regardless of the employer-employee relationship.
¶49 To underscore why the attorney-client privilege at issue in Upjohn does not “trump [ ] the Loudon rule” as the majority maintains, majority at 664, consider another situation in which the employee is not a client or a defendant party, but is the plaintiff bringing suit. Even in a medical malpractice context, a plaintiff may also be an employee of the defendant corporation. This was the situation in Lowy and is increasingly common in this era of large health care organizations that require employees to receive services inside their system. See 174 Wn.2d at 772 (plaintiff Dr. Leasa Lowy was the staff physician at the hospital where she was admitted as patient). The same arguments supporting the corporation’s ability to assert attorney-client privilege over communications between defense counsel and employees would apply in this context to communications between defense counsel and the plaintiff-employee. But, no one would suggest that the existence of the attorney-client privilege somehow implies defense counsel’s right to interview the plaintiff ex parte. This is because the rules limiting ex parte contact do not turn on the existence or nonexistence of any evidentiary privilege.
¶50 Instead, these rules reflect practical distinctions and policy considerations. Not Upjohn, but Loudon and Wright provide the proper point of reference. These cases, specific to the litigation context, recognize the distinction between parties and nonparties and the competing interests of litigation opponents with respect to certain nonparty witnesses. Loudon teaches that a nonparty witness who is the plaintiff’s physician cannot be treated the same as any other nonparty witness, whom either party may freely contact. 110 Wn.2d at 681 (“The unique nature of the physician-patient relationship and the dangers which ex parte interviews pose justify the direct involvement of counsel in any contact between defense counsel and a *678plaintiff’s physician.”). Similarly, Wright recognizes that corporate employees authorized to speak for or otherwise bind the corporation are considered “parties” with whom opposing counsel cannot have ex parte contact. 103 Wn.2d at 195-202. Other employees outside this “control group” are nonparty witnesses who may be interviewed by opposing counsel. Id. Importantly, the court in Wright rejected an argument based on Upjohn that the attorney-client privilege requires restricting the ability of opposing counsel to speak with all employees, emphasizing that the policies defining the scope of the privilege differ from those defining when ex parte contact should be allowed. Id. at 201-02. Subsequently, the court in Loudon distinguished Wright, emphasizing that policy concerns specific to the physician-patient relationship required limiting Wright’s rule allowing ex parte contact with nonparty witnesses. 110 Wn.2d at 681.
¶51 The question in this case, then, is whether the lines that this court has drawn must be erased simply because the nonparty treating physician is employed by the defendant health care entity. It is difficult to see how the physician in this corporate setting is less connected with her patient’s interest as to require a different rule. To the contrary, just as the lead opinion in Smith recognized the heightened risks of ex parte contact in the medical malpractice context, 170 Wn.2d at 669 & n.2, we should be especially concerned that a physician’s duty to a patient may be compromised when the contact is initiated by the physician’s employer’s counsel. The risk that the physician’s testimony may be “shaped and influenced,” id. at 668 (lead opinion), is perhaps at its highest in this context.
¶52 The majority’s self-imposed limitation on the ex parte contact it authorizes offers faint protection against this risk. Under the majority’s rule, a plaintiff can do nothing but blindly trust that opposing counsel and her physician will discuss only “the facts of the alleged negli*679gent event.” Majority at 671. The court in Loudon was skeptical, recognizing the inherent danger that ex parte contact would result in irreparable harm from the improper disclosure of irrelevant, privileged information. See 110 Wn.2d at 678 (admitting that “ ‘[w]e are concerned ... with the difficulty of determining whether a particular piece of information is relevant’ ” (quoting Roosevelt Hotel Ltd. P’ship v. Sweeney, 394 N.W.2d 353, 357 (Iowa 1986))). Additionally, we recognized that “[t]he harm from disclosure of this confidential information cannot ... be fully remedied by subsequent court sanctions.” Id. The majority seems to brush aside these concerns in formulating a rule that requires physicians and defense attorneys to determine what constitutes “facts of the alleged negligent incident.” Majority at 672.
¶53 The majority’s rule not only subjects the physician-plaintiff relationship to the inherent dangers of inadvertent disclosure but also prevents the plaintiff from inquiring about any such disclosures under the cloak of attorney-client privilege. See RCW 5.60.060(2)(a) (prohibiting examination of attorney regarding attorney-client communication); State v. Ingels, 4 Wn.2d 676, 712,104 P.2d 944 (1940) (extending statutory prohibition against examination to client). This is clearly not what we intended in Loudon when we sought to “protect! ] the sanctity” of the physician-patient relationship, to recognize that “ ‘[t]he relationship between physician and patient is “a fiduciary one of the highest degree . . . involving] 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.’ ” Smith, 170 Wn.2d at 667 (most alterations in original) (quoting Loudon, 110 Wn.2d at 679 (quoting Lockett v. Goodill, 71 Wn.2d 654, 656, 430 P.2d 589 (1967)), and quoting Carson v. Fine, 123 Wn.2d 206, 213, *680867 P.2d 610 (1994) (lead opinion) (quoting Dep’t of Soc. & Health Servs. v. Latta, 92 Wn.2d 812, 819, 601 P.2d 520 (1979))). The majority’s new rule undermines these goals.
¶54 Even worse, many plaintiff-patients have no realistic opportunity to arrange for their health care outside the corporate setting in a manner that avoids the risks of the majority’s rule. In an age of large health maintenance organizations (HMOs), the physician-patient relationship is increasingly intertwined with the employer-employee relationship and thus vulnerable to employer encroachment. HMOs generally require their members to use their doctors and facilities; going elsewhere and paying out-of-pocket is not an option for most. It is no longer a rare instance that a defendant health care provider is the employer of a plaintiff’s physicians, past or present. As illustrated by Lowy, even the plaintiff may be an employee. The need to protect the integrity of the physician-patient relationship should be of even greater concern now than 25 years ago.
¶55 While the majority’s rule imposes new burdens on plaintiff-patients, applying the Loudon rule in the corporate medicine context does not unduly limit the ability of the defendant corporations to protect their interests. Loudon does not restrict the sort of internal, prelitigation investigations that produced the attorney-client privileged documents at issue in Upjohn. Quality improvement committees are still able to collect confidential patient information in order to assess legal risks and areas of improvement, in compliance with RCW 70.41.200(l)(e), so long as QI team members are later screened from litigation and that information is protected from civil discovery. Moreover, a corporate defendant remains free to engage in privileged communications with its employees other than the plaintiff or the plaintiff’s nonparty treating physicians, before and throughout litigation. Loudon does not prevent hospitals from obtaining legal services in compliance with RCW 70.02.050(l)(b). Even as to the plaintiff’s nonparty treating physicians, the information defense counsel seeks can be *681obtained through medical records, depositions by examination or written questions, and informal interviews with both counsel present. Loudon, 110 Wn.2d at 680. As the majority recognizes, “Loudon does not prohibit the acquisition of knowledge; it merely imposes procedural safeguards to prevent improper influence or disclosures.” Majority at 670. For good reason, the court in Loudon was “unconvinced that any hardship caused the defendants by having to use formal discovery procedures outweighs the potential risks involved with ex parte interviews.” 110 Wn.2d at 680.
¶56 A quarter century ago, this court, in Loudon, was presented with the question of “whether defense counsel in a personal injury action may communicate ex parte with the plaintiff’s treating physicians when the plaintiff has waived the physician-patient privilege.” Id. at 675-76. We resolutely answered no and emphasized that ex parte communications with a patient’s physicians are inherently dangerous and against public policy. Id. at 676-78, 681. The potential for inadvertent disclosure of irrelevant, confidential information and its concomitant erosion of the physician-patient fiduciary relationship concerned us then and is of even greater concern in the corporate medicine context. The majority’s attempt to find a way to allow ex parte contact while respecting the policy underlying Loudon is understandable, but unworkable. It exposes not only the patient-plaintiff but also the nonparty physician and defense counsel to the very risks that the court in Loudon considered when it drew a bright line prohibiting ex parte contact. We should underscore, not blur, that line.
CONCLUSION
¶57 While I appreciate the majority’s attempt to balance the competing interests at stake, the solution it offers is no solution at all. No one’s interests are served by a rule that allows defense counsel to engage in ex parte communications with the plaintiff’s nonparty treating physicians who *682are employed by the defendant, but only as to facts based on their “firsthand knowledge of the alleged negligent event.” Majority at 671; see also id. at 664. This gives very little ground to the defense, as most physician employees with such knowledge will meet the definition of “party” in the corporate medicine context. It gives even less solace to the medical malpractice plaintiff or a court seeking assurance that ex parte communications with nonparty treating physicians do not exceed this limited scope because the majority anticipates the communications with defense counsel will be privileged. Id. at 671 (noting defense counsel “may engage in privileged (ex parte) communications”). And it creates a precarious situation for the nonparty treating physician, who must guess right about where to draw the line between providing confidential information to the employer and breaching a fiduciary duty to the plaintiff.
¶58 The better course is to recognize that the Loudon rule applies fully to medical malpractice cases in which the plaintiff’s nonparty treating physicians happen to be employed by the defendant. The risks sought to be minimized by the Loudon rule exist equally in this context, and the employer-employee relationship provides insufficient justification for a different rule. Nor does the attorney-client privilege necessitate allowing ex parte communications with nonparty treating physicians in the corporate medicine setting. Any attorney-client relationship exists between the defendant corporation and its counsel, not its employee physicians whose interests may materially differ from the corporation’s, particularly where the physician owes a fiduciary duty to the plaintiff. Defense counsel’s need “ ‘to determine what happened,’ ” id. at 664 (quoting Upjohn, 449 U.S. at 392), is not defeated by respecting the Loudon rule in this context, as the facts remain fully available to both parties, albeit through normal discovery channels.
¶59 Upholding the Loudon rule, I concur in the majority’s decision to affirm the trial court order in Glover *683prohibiting ex parte contact between defense counsel and Aolani Glover’s treating physicians at the University of Washington Medical Center (UWMC).15 I dissent from the majority’s decision affirming the trial court order in Youngs to allow limited ex parte communications with nonparty treating physicians “who have firsthand knowledge of the alleged negligent incident.” Id. at 672-74. I would reverse the trial court and remand with instructions to reinstate the prior order prohibiting ex parte contact with any of Youngs’ treating physicians other than Dr. Richard Leone and Dr. Donald Berry.
C. Johnson, Fairhurst, and González, JJ., concur with Stephens, J.I also agree with the majority that the federal Health Insurance Portability and Accountability Act of 1996 has no bearing on this case. Majority at 665 n.9 (citing Pub. L. No. 104-191, 110 Stat. 1936).
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
I agree with the majority’s reversal of that portion of the order barring UWMC’s risk manager from ex parte contact with Glover’s physicians, understanding that litigation defense counsel must be screened from access to such information collected as part of quality improvement efforts.