Last week's decision by the Washington Supreme Court in Youngs v. PeaceHealth has significant implications for health care providers that employ physicians (or other health care practitioners) and the attorneys who represent those organizations. In an attempt to reconcile the conflict between the organization's attorney-client privilege and the patient's physician-patient privilege, the Court created dramatic new limitations on attorneys' ability to communicate with the organization's employed non-party physicians regarding a patient's allegations of negligence and medical malpractice.
The case involves a common-place fact pattern. When a patient believes he or she has been harmed by an employed practitioner's negligence, the patient may sue the employing organization but not name all of the practitioners involved as parties. It thus is routine for the organization's attorney to seek to interview the organization's employee whose actions allegedly give rise to the claimed liability. As the Court recognized, depending on the facts the organization may be completely entitled to have such communications protected by the attorney-client privilege.
However, the notion that such communications could be privileged -- and thus confidential -- smacks into the Loudon rule created by the Court in 1998, which generally prohibits a defendant's attorney from communicating with a patient-plaintiff's treating physician about the care provided to the patient, outside the presence of the patient-plaintiff or counsel.
Balancing these two interests, the Court enunciated severe limitations on an organization's attorney's ability to have confidential communications with the organization's non-party physician employees. The attorney may engage in confidential communications with a patient-plaintiff's treating physician when the communication:
Meets the general prerequisites for application of the attorney-client privilege;
Is with a physician or other practitioner who has direct knowledge of the event or events triggering the litigation; and
Concerns only the facts of the alleged negligent incident.
According to the Court, the Loudon rule bars confidential communications regarding prior or subsequent treatment such as the patient-plaintiff's recovery, even when it may be relevant to damages.
The Court went on to address communications between hospital employees and quality improvement committees. The Court held that members of the committee must be screened from defense counsel in actions against the hospital for negligence or malpractice.
Perhaps even more disturbing, the Court's decision in Youngs was by a narrow 5-4 margin. The dissent would have interpreted Loudon to create an absolute bar on confidential communication between the provider's attorney and the provider's employed physicians.
IMPACT Health care providers should carefully review how they approach the defense of negligence claims involving employed practitioners. The scope of what your attorneys can and cannot do has just been dramatically circumscribed. While Youngs applied Washington law, assertive plaintiffs' counsel in other jurisdictions are sure to take note.