SNYDER v. Jared Brandenberger, M.D. and John and Jane Doe Physicians, Unknown John and Jane Doe Nurses, Defendants. (2026)

¶1 Decades ago, in Loudon, this court established a mechanism to protect two values our society holds dear: first, a doctor's long-standing obligation to protect their patients’ confidentiality, and second, a defendant's right to investigate claims against them. See Loudon v. Mhyre, 110 Wash.2d 675, 756 P.2d 138 (1988). Loudon establishes that defendants in personal injury cases must use formal discovery rules to communicate with a plaintiff's nonparty doctors, essentially meaning such communications must be done with the plaintiff's knowledge and, in some circumstances, consent.

¶2 We have recognized one exception to Loudon. When the defendant is a corporation, corporate counsel may have privileged conversations with the corporation's current employees (and individuals who are the functional equivalents of current employees), including the plaintiff's nonparty doctors, without going through the formal discovery process. Conversations regarding care provided to the plaintiff are limited to the facts that gave rise to the claim.

¶3 In this case, Michael Snyder suffered a catastrophic injury during an operation at Virginia Mason Medical Center (Virginia Mason). He sued Virginia Mason and the lead surgeon. Virginia Mason's investigation identified three nonparty doctors who participated in the surgery and who may have contributed to Snyder's injuries. These three doctors no longer work at Virginia Mason, but Virginia Mason is contractually obligated to defend and indemnify them in this case.

¶4 Virginia Mason communicated with those doctors without going through the formal discovery process and without Snyder's knowledge or consent. In addition, Virginia Mason's chief medical officer (who was also a member of the hospital's quality improvement committee) traveled across the state to speak with one of the doctors about this case.

¶5 Virginia Mason contends that its communications with those three doctors was not improper because, in its view, it is allowed to have privileged, ex parte communication with Snyder's nonparty doctors without his knowledge or consent under a variety of theories. We affirm the courts below that it is not.

¶6 Snyder contends that Virginia Mason's failure to screen a member of its quality improvement committee from this litigation precludes the hospital from asserting the statutory privilege established by RCW 70.41.200. We conclude that Virginia Mason at least partially waived the statutory privilege under these facts. We vacate the trial court's denial of Snyder's motion to compel production of such materials and remand for further proceedings, including in camera review where necessary.

¶7 Snyder also contends that he is entitled to default judgment on liability as a remedy because Virginia Mason's secret communications with his three doctors has so tainted critical evidence that he has been denied a fair trial. We conclude that Snyder is not required to demonstrate litigation prejudice in order to receive remedies for Virginia Mason's Loudon violation, as the violation is not simply a discovery violation. The violation itself is prejudicial, though a trial court exercises discretion to determine an appropriate remedy based on the extent of prejudice shown, which may include consideration of the Loudon violation's impact on the litigation. We vacate the trial court's denial of Snyder's motion for default judgment and remand for reconsideration. The trial court's determination of an appropriate remedy should be based on a full review of records identified in relation to the Loudon violation, including in camera review where necessary to assess Virginia Mason's claims of privilege. Accordingly, we affirm the courts below in part and remand this case to the trial court for further proceedings consistent with this opinion.

Background

¶8 Snyder had major surgery at Virginia Mason in January 2018. Dr. Jared Brandenberger was the lead surgeon. Two residents, Drs. Molly Downey and Weslee Chew, were responsible for threading a needle and wire through Snyder's jugular vein as part of placing a catheter. At some point, it appears that the tip of that line passed through an artery and into Snyder's chest.

¶9 When Dr. Brandenberger realized that the tip of the line was not where it was supposed to be, he called Dr. Nathan Aranson, a vascular surgeon, to assist. Initially, Dr. Aranson suggested that the surgical team inject a contrast dye while taking imaging to determine the exact location of the tip. When that failed, he suggested the surgeons slowly withdraw the catheter line.

¶10 Almost immediately, Snyder began to bleed heavily. Snyder suffered a massive hemorrhage in his chest and a prolonged cardiac arrest, among other things. The medical team was able to save Snyder's life, but Snyder was left with permanent, disabling injuries.

¶11 Snyder sued Virginia Mason and Dr. Brandenberger, and John and Jane Doe physicians and nurses, in March 2019. Snyder did not name Drs. Chew, Downey, and Aranson as defendants, and at the time he filed this case, it appears Snyder had no reason to believe any of them might have contributed to his injuries.

¶12 Not long after Snyder filed his lawsuit, Virginia Mason's counsel determined that Drs. Downey, Chew, and Aranson were involved in the care that gave rise to this lawsuit. None of these doctors still worked at Virginia Mason, but Virginia Mason is still responsible for providing them with a defense and covering any liability they may have for Snyder's injuries. Virginia Mason arranged for these three doctors to be represented by separate counsel, Jennifer Oetter. Virginia Mason's legal defense team and its three former doctors also worked with the same risk managers and third-party claims administrators at Western Litigation.¹

¶13 Virginia Mason's chief medical officer, Dr. Michael Glenn, traveled across the state in December 2019 to talk with Dr. Chew and assure him that Virginia Mason supported him with regard to Snyder's surgery. Dr. Glenn also served on Virginia Mason's quality oversight committee and had learned about Snyder's suit through someone on Virginia Mason's legal team. Virginia Mason's defense team worked with Dr. Glenn in coordinating the trip and provided him with talking points for that conversation. Dr. Glenn later testified in a deposition that he had not discussed the surgery or the litigation details with Dr. Chew at that meeting and had not received talking points in writing.

¶14 The separate counsel Virginia Mason had retained to represent the three nonparty doctors, Oetter, was present for the meeting and had discussed traveling there with Dr. Glenn. After the two doctors spoke, Oetter met with Dr. Chew for about an hour, followed by another discussion between the two doctors.

¶15 Snyder's attorney learned that Drs. Chew and Downey placed the catheter that may have caused Snyder's injuries months later, in February 2020. Two months later, Virginia Mason included Drs. Chew and Downey in a witness disclosure of over 100 potential witnesses without explaining their roles in the surgery.

¶16 In that witness disclosure, Virginia Mason stated that “[t]he 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.” CP at 1669.

¶17 This statement was, at least, misleading.

¶18 By the time it made that statement in April 2020, Virginia Mason's legal team had been in active communication with the three doctors’ lawyer concerning Snyder's case, both directly and through Western Litigation. For example, shortly before Virginia Mason told Snyder it could not contact his former doctors, Virginia Mason's risk manager had an hour conversation with Dr. Aranson and had informed him that he was “essential in prepping the case.” CP at 1662-63. Virginia Mason's risk manager discussed her conversation with Dr. Aranson in an e-mail string with Oetter. A privilege log listed more than 400 separate instances of communication that potentially violated Snyder's right to have his attorney present during communications with his nonparty doctors.

¶19 Snyder did not know about these ongoing communications for the first few years of litigation.

¶20 Then, in early 2021, two of Snyder's experts, Drs. John Moriarty and Shawn Tsuda, were deposed by the defense. Both experts suggested that the three nonparty doctors might have been negligent. Dr. Tsuda stated that allowing residents to participate in the surgery was unreasonable given its high risk. Dr. Moriarty was critical of Dr. Chew's placement of the catheter line. Dr. Tsuda also suggested that Dr. Aranson's advice might have been negligent, though Dr. Tsuda was careful to say he was not a vascular specialist and was not offering a direct opinion on that point. Dr. Moriarty was also critical of Dr. Aranson's decision to withdraw the line.

¶21 Not long afterward, Oetter asked Snyder's counsel for transcripts of any expert depositions where Dr. Aranson was discussed. When Snyder's counsel declined, Oetter obtained the transcripts from Western Litigation. Dr. Aranson moved to intervene in the case and be represented by separate counsel. Dr. Aranson's motion referred to Dr. Tsuda's deposition and attached transcripts of that deposition.

¶22 Dr. Aranson contended that he should be allowed to intervene because he might be found negligent, such a finding could affect him professionally, and his interests, he believed, could not be adequately represented by the existing parties. Virginia Mason supported his motion on several grounds, including that their interests might conflict and, again, that it “did not have access” to Dr. Aranson, despite the fact it appears its agents had been in close communication with his attorney. CP at 4427. Over Snyder's objection, Dr. Aranson was allowed to intervene.²

¶23 Meanwhile, Snyder sought Virginia Mason's communications with Dr. Aranson, among other things related to Virginia Mason's communications with nonparty doctors. Virginia Mason responded by moving for a protective order. Virginia Mason argued that its communications with the nonparty doctors was privileged and not limited by Loudon.³

¶24 The trial court expressed surprise, observing that “it's not clear to me how a communication which is disallowed by law would be protected under the cloak of privilege.” The court went on to say:

So to summarize, I don't understand what the privilege is. I don't understand why it's being raised now for the first time. And from my vantage point, which, in a moment I'm going to stop talking so you can correct me, there seems to be a pretty major ethical violation here—I don't say that lightly—that it would be wiser for everyone to just acknowledge and address rather than creating smokescreens around it that aren't particularly compelling.

․

That said, I will say to the defense, and I say this with a heavy heart and I do not say it lightly, there is some pretty considerable trust lost at this point between you collectively and me. The communications here it seems to me were per se a violation of Washington state law conducted by people who frankly know that law about 20 times better than I do and who are statewide experts on that law.

So we have a pretty huge problem here, the extent of it is not yet known to me. The way to fix it is not yet understood by me, but the gravity of the situation I think cannot be understated.

CP at 2378, 2380.

¶25 The trial court directed the defense to produce communications between Virginia Mason's defense counsel and nonparty health care providers for review by a special master.⁴ Virginia Mason produced hundreds of responsive documents and thousands of pages for the special master's review. The special master identified 30 documents that they believed should be disclosed, which, over Virginia Mason's strong objection, the trial court ordered.

¶26 Dissatisfied with the limited document disclosure, Snyder moved the court to direct the special master to produce all of the documents for the trial court's review. Before ruling, the judge directed Virginia Mason to produce a privilege log of all documents provided to the special master, as well as any correspondence with that special master, for in camera review. That privilege log described 467 documents.

¶27 Much earlier in the lawsuit, Snyder had asked Virginia Mason if it had investigated the accident, for the names of anyone involved in such an investigation, and to identify material related to any such investigation. Originally, Virginia Mason acknowledged that its quality improvement program had investigated the accident but declined to give details, invoking RCW 70.41.200. This statute makes information and documents created for and collected and maintained by quality improvement committees exempt from discovery. In November 2021, Virginia Mason supplemented its answer to acknowledge that among others, Dr. Glenn, who had traveled to Prosser to meet with Dr. Chew in relation to the lawsuit, had been part of that quality improvement investigation.

¶28 Snyder moved for production of Virginia Mason's relevant quality improvement documents in February 2022. That motion was denied. A month later, Virginia Mason's risk manager submitted a declaration saying that “[o]utside of the quality improvement process, [Virginia Mason] has never conducted an ex parte interview with Drs. Chew, Downey, or Aranson regarding any care they provided to Plaintiff.” CP at 3972 (italics omitted).

¶29 Meanwhile, in January 2022, Virginia Mason moved for leave to have ex parte communication with the three doctors. It contended that Loudon should not apply to situations where the nonparty doctor provided the allegedly negligent care. Virginia Mason also argued that it should be able to share privileged ex parte communications with its three former employees under the common interest doctrine. The trial court denied the motion on the grounds that the issue had already been extensively litigated, and Virginia Mason had offered no new law or facts.

¶30 Virginia Mason sought discretionary review of the trial court's ruling directing it to produce documents, directing a CR 26(i) conference, and reserving ruling on the plaintiff's motion to direct the special master to produce documents.  ⁵ Later, Virginia Mason moved for discretionary review of whether it was allowed to have ex parte contact with former employees whose care may have given rise to liability and whether counsel was permitted to invoke the common interest privilege.

¶31 Virginia Mason argued that Loudon did not apply to doctors whose conduct may give rise to the hospital's liability. Virginia Mason also argued that review was necessary because without it, it was “forced to defend this case through verdict without access to those very providers whose care is alleged to form the basis of vicarious liability against it.” Mot. for Discr. Rev. at 31. (Wash. Ct. App. No. 83526-2-I (2022)).

¶32 While that motion was pending, Snyder moved for production of the documents provided to the special master and quality assurance documents. After those motions were denied, Snyder moved for a default judgment on liability. Snyder contended that Virginia Mason was “secretly educating, preparing and coaching ․ critical fact witnesses, directly and through third parties,” as well as willfully violating Loudon. CP at 3656. Snyder stressed that Virginia Mason represented it was unable to contact his nonparty doctors while actively doing so. He argued that Virginia Mason “secretly provided strategy, litigation information and coaches to [Drs. Chew, Downey, and Aranson] for months, to shape and influence their testimony for deposition and trial” and that their testimony was irremediably spoiled. CP at 3657-59. “Because that evidence is ‘spoiled and lost forever’ due to the improper actions of [Virginia Mason],” he contends, default judgment is the only remedy. CP at 3659.

¶33 The trial court found Virginia Mason had violated Loudon. The court denied the motion for default judgment on the grounds that the record lacked sufficient information to determine whether Snyder had been substantially prejudiced. The trial court indicated it would entertain a renewed motion.

¶34 Snyder filed a conditional motion for discretionary review, contending that a defendant who violated Loudon has the burden of disproving prejudice, that communications in violation of Loudon are not protected by privilege, and that only communications that reflect the inner workings of a quality improvement committee are protected from discovery when the committee includes a participant who was not screened from the litigation at issue.

¶35 A Court of Appeals commissioner granted review of Virginia Mason's motion in full and of Snyder's motion in part. She limited Snyder's issues to “whether a showing of prejudice is required for sanctions for Loudon violations and whether and to what extent a quality improvement (QI) committee member's participation in the litigation precludes the hospital's assertion of the QI privilege.” Comm'r’s Ruling Granting Discr. Rev., Snyder v. Virginia Mason Med. Ctr., No. 85326-2-I, at 2 (Wash. Ct. App. May 9, 2022).

¶36 The Court of Appeals affirmed. Snyder v. Virginia Mason Med. Ctr., 34 Wash. App. 2d 146, 566 P.3d 873, review granted, 5 Wash.3d 1001, 574 P.3d 537 (2025). The Court of Appeals concluded that Virginia Mason had violated Loudon by communicating ex parte without Snyder's consent, that Snyder bore the burden of establishing prejudice, that his ability to establish prejudice is a factor in the appropriate sanction, and that the failure to screen Dr. Glenn from this litigation did not waive the protections of the quality improvement statute. Id. at 152-53, 566 P.3d 873.

¶37 Both sides petitioned for review. We granted both petitions.⁶

Analysis

¶38 A trial court's discovery rulings are generally reviewed for abuse of discretion. Cedell v. Farmers Ins. Co. of Wash., 176 Wash.2d 686, 694, 295 P.3d 239 (2013) (citing T.S. v. Boy Scouts of Am., 157 Wash.2d 416, 423, 138 P.3d 1053 (2006)). We review the trial court's interpretation of law de novo. Hermanson v. MultiCare Health Sys., Inc., 196 Wash.2d 578, 585, 475 P.3d 484 (2020).

¶39 This case is part of a long line of cases concerning the scope of the doctor-patient privilege in personal injury and wrongful death actions, the scope of corporate attorney-client privilege in such actions, and the scope of the corporate attorney-client privilege once the employment relationship has ended. We begin with a brief discussion of the leading cases.

¶40 Loudon was a wrongful death action brought by the father of a son who had been seriously injured in a car accident in Washington. See 110 Wash.2d at 676, 756 P.2d 138. After doctors in Washington had released the son from the hospital, he returned home to Oregon and saw other doctors. Id. Not long afterward, the son died of complications related to the accident. Id. His father brought a wrongful death action against his son's Washington doctors and hospital, alleging that their medical negligence caused his son's death. Id. He did not sue the Oregon doctors and voluntarily provided their records to the defense. Id. Contending that doctor-patient confidentiality had been waived, defense counsel also moved for ex parte contact with the son's Oregon doctors. Id.

¶41 Loudon surveyed cases from around the country, which were split on whether defense counsel was allowed to have ex parte communications with the plaintiff's nonparty doctors. Id. at 677, 756 P.2d 138 (collecting cases). The Loudon court concluded limiting such contact was appropriate for three reasons. First, allowing defense counsel to communicate with the plaintiff's nonparty doctors without the plaintiff's knowledge and consent could have a chilling effect on the doctor-patient relationship because at least some patients would be less likely to seek medical aid. Id. at 679, 756 P.2d 138. Second, doctors themselves have an interest in avoiding inadvertent improper disclosure of patient confidence in such ex parte conversations, especially as such disclosures could give rise to liability. Id. at 680, 756 P.2d 138. Third, such ex parte conversations could lead to disputes when counsel's recollection differs from the doctor's, which may require defense counsel to testify as an impeachment witness. Id. To avoid these consequences, the court unanimously adopted the Loudon rule, which requires the defense to use formal discovery rules.

¶42 Based on Loudon, this court concluded ex parte contact between defense counsel and a nonparty doctor's attorney is also improper. Smith v. Orthopedics Int'l, Ltd., 170 Wash.2d 659, 668, 244 P.3d 939 (2010) (Alexander, J., lead opinion); id. at 678, 244 P.3d 939 (C. Johnson, J., concurring/dissenting). Smith was a wrongful death action brought by the surviving husband of a woman who contracted a deadly infection after a spinal surgery. The defense called one of the plaintiff's doctors, Dr. Johansen, as a fact witness. Id. at 663, 244 P.3d 939. During trial, it became clear that defense counsel had sent Dr. Johansen's lawyer the plaintiff's trial brief and a copy of the deposition of the plaintiff's expert, among other documents relevant to the case, and that the doctor had reviewed some of that material before testifying. Id. Defense counsel had also left a voicemail for the doctor's attorney telling her that the plaintiff's expert had been critical of the care Dr. Johansen had provided. Id. at 679, 244 P.3d 939 (C. Johnson, J, concurring/dissenting).

¶43 Seven justices agreed that the communications violated Loudon. Id. at 661, 244 P.3d 939 (Alexander, J., lead opinion); id. at 678, 244 P.3d 939 (concurring & dissenting opinion of C. Johnson, J., concurring/dissenting). The lead opinion, signed by three justices, emphasized that Loudon and subsequent cases prohibited not just ex parte interviews, but ex parte contact and communications. Id. at 666, 244 P.3d 939 (citing Holbrook v. Weyerhaeuser Co., 118 Wash.2d 306, 309, 822 P.2d 271 (1992); Carson v. Fine, 123 Wash.2d 206, 227, 867 P.2d 610 (1994)). “[T]he prohibition on ex parte contact, which we set forth in Loudon, is broad and not confined to merely limiting interviews by defense counsel with a plaintiff's treating physician.” Id.

¶44 The lead opinion also emphasized two reasons to apply the Loudon rule broadly: first, to protect the sanctity of the doctor-patient relationship, and second, to protect the treating doctor's role as a fact witness by guarding them from becoming a witness for the defense. Id. at 667-68, 244 P.3d 939.

¶45 Four justices joined the lead opinion in concluding that the defendant hospital's contacts with the plaintiff's doctor violated Loudon. Id. at 678, 244 P.3d 939 (C. Johnson, J., concurring/dissenting). Two justices would have limited Loudon to prohibiting defense counsel from directly seeking or soliciting information from the plaintiff's nonparty doctors ex parte. Id. at 675, 244 P.3d 939 (Fairhurst, J., concurring).

¶46 The rule set forth in Loudon and Smith has been limited in the context of a hospital's current employees in light of the corporate attorney-client privilege. See Youngs v. PeaceHealth, 179 Wash.2d 645, 664, 316 P.3d 1035 (2014). The plaintiffs in Youngs had brought medical malpractice actions against hospitals that had provided them care. Id. at 651, 653-54, 316 P.3d 1035. They objected to the defendant having ex parte contact with nonparty doctors who still worked at the defendant hospital. Id. at 654, 316 P.3d 1035. The court allowed such contacts but with significant limitations. When a doctor-patient relationship exists between the plaintiff and an employee of the defendant hospital, Youngs limits such ex parte contact communications to the facts of the alleged negligent event. Id. at 664, 671, 316 P.3d 1035.

¶47 Youngs is grounded in the statutory attorney-client privilege and Upjohn Co. v. United States, 449 U.S. 383, 386, 390, 101 S. Ct. 677, 66 L. Ed. 2d 584 (1981). Youngs, 179 Wash.2d at 651, 316 P.3d 1035; see also RCW 5.60.060(2)(a). The court rejected the hospital's argument “that Upjohn completely trumps Loudon.” Youngs, 179 Wash.2d at 652, 316 P.3d 1035. Instead, it harmonized the attorney-client and doctor-patient privileges into a new rule:

To protect the values underlying both the physician-patient and the attorney-client privileges, we adopt a modified version of the Upjohn test in this context. Under this test, an attorney hired by a defendant health care provider to investigate or litigate an alleged negligent event may conduct 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.

Id. at 653, 316 P.3d 1035 (footnote omitted) (citing Haines v. Liggett Grp., Inc., 975 F.2d 81, 90 (3d Cir. 1992)).

¶48 We have declined to extend Youngs to former employees. Newman v. Highland Sch. Dist. No. 203, 186 Wash.2d 769, 777, 782, 381 P.3d 1188 (2016). In Newman, a high school student sustained a head injury during a football practice, was allowed to play the game even though he showed signs of a concussion, and consequently suffered a permanent brain injury. Id. at 774-75, 381 P.3d 1188. Before trial, the school's counsel interviewed several former football coaches and appeared on their behalf at depositions. The school argued that these former employees should be treated the same as current employees for the purposes of the corporate attorney-client privilege. Id. at 783, 381 P.3d 1188.

¶49 While recognizing that some courts had accepted the argument that former employees should be treated the same as current employees for purposes of corporate attorney-client privilege, this court rejected that argument. Id. at 782, 381 P.3d 1188 (citing In re Allen, 106 F.3d 582, 605-06 (4th Cir. 1997) (collecting cases)). Newman reasoned:

Highland's argument for extending the attorney-client privilege to its communications with the former coaches emphasizes that these former employees may possess vital information about matters in litigation, and that their conduct while employed may expose the corporation to vicarious liability. These concerns are not unimportant, but they do not justify expanding the attorney-client privilege beyond its purpose. The underlying purpose of the corporate attorney-client privilege is to foster full and frank communications between counsel and the client (i.e., the corporation), not its former employees. State v. Chervenell, 99 Wash.2d 309, 316, 662 P.2d 836 (1983). This purpose is preserved by limiting the scope of the privilege to the duration of the employer-employee relationship. See Restatement (Third) of the Law Governing Lawyers § 73(2). Upon termination of the employment relationship, the interests of employer and former employee may diverge. But the attorney-client privilege belongs solely to the corporation, and it may be waived or asserted solely by the corporation, even to the detriment of the employee.

Id. at 781, 381 P.3d 1188 (footnote omitted).

¶50 Most recently, in Hermanson, the court extended Youngs to a hospital's nurses and social workers, and to independent contractors working at a hospital who are deemed the functional equivalent of employees. Hermanson, 196 Wash.2d at 581, 475 P.3d 484. The court held that a defendant hospital's legal team could have privileged ex parte communications with nurses, social workers, and Dr. Patterson, an independent contractor, subject to the limitations imposed in Youngs. Id.

¶51 Hermanson analogized Dr. Patterson to an employee covered by corporate attorney-client privilege for several reasons. First, it recognized that Dr. Patterson himself had a principal-agent relationship with the hospital because the hospital had the right to control the details of his work. Id. at 587-88, 475 P.3d 484. These facts distinguished Dr. Patterson from the former employees in Newman, who did not have a principal-agent relationship with their former employer, “ ‘c[ould] no longer bind the corporation and no longer owe[d] duties of loyalty, obedience, and confidentiality.’ ” Id. at 588, 475 P.3d 484 (alterations in original) (quoting Newman, 186 Wash.2d at 780, 381 P.3d 1188). Second, the court concluded Dr. Patterson was the functional equivalent of an employee due to the nature of his work and his contract with his direct employer and the hospital. Id. at 589-90, 475 P.3d 484. Thus, the court concluded the hospital was entitled to have privileged ex parte contact with Dr. Patterson. Id.

¶52 MultiCare, the defendant in Hermanson, had argued that since the plaintiff was attempting to hold it vicariously liable for Dr. Patterson's conduct, it was entitled to have privileged ex parte contact with Dr. Patterson. Id. at 590, 475 P.3d 484 (citing court document). The court rejected that approach. Id. Instead, it concluded that whether the hospital could have limited, privileged ex parte communications with Dr. Patterson was a separate question from whether the hospital was vicariously liable for Dr. Patterson's conduct. Id. The court also rejected MultiCare's argument that it should be allowed to have ex parte communications with a treating physician when it had entered into a representation agreement with that physician. Id. at 590 n.1, 475 P.3d 484. The court observed that “MultiCare's argument would allow any corporation to circumvent a plaintiff's physician-patient privilege by entering into a representation agreement with a treating physician, rendering the physician-patient privilege moot whenever the corporation chooses.” Id.

¶53 In a separate line of cases, Washington courts have recognized a “common interest doctrine.” Under this doctrine, “when multiple parties share confidential communications pertaining to their common claim or defense, the communications remain privileged as to those outside their group.” Sanders v. State, 169 Wash.2d 827, 853, 240 P.3d 120 (2010) (citing Broyles v. Thurston County, 147 Wash. App. 409, 442, 195 P.3d 985 (2008)). The doctrine is an exception to the general rule that sharing attorney-client privileged communications or documents waives the attorney-client privilege. Id. at 853-54, 240 P.3d 120.

¶54 With this history in mind, we turn to the issues before us.

1. Did Virginia Mason violate Loudon?

¶55 The trial court concluded Virginia Mason violated Loudon through its ex parte communications with Drs. Chew, Downey, and Aranson. We agree.

¶56 Virginia Mason does not deny that these communications occurred. Instead, it offers several different arguments for why Loudon should not apply. In essence, it, strongly supported by amici, argues that Loudon should be limited to cases where the nonparty doctor was not potentially implicated in the plaintiff's injury.

¶57 First, Virginia Mason attempts to distinguish Loudon and its progeny on the theory that in those cases, the nonparty doctors were not implicated in the care that gave rise to the cause of action.

¶58 But we note that in Smith, the improper ex parte communications began with a phone call from the hospital's counsel to the nonparty doctor's counsel informing him that the plaintiff's expert was critical of the doctor's work. 170 Wash.2d at 679, 244 P.3d 939 (C. Johnson, J., concurring/dissenting). That fact was not enough to defeat application of Loudon in the minds of a majority of the court. Virginia Mason also suggests the plaintiff in Youngs conceded that defense counsel could have ex parte contact with doctors whose conduct was at issue, regardless of whether those doctors were parties to the case. Virginia Mason's Suppl. Br. at 3 n.2 (citing Youngs’ response to an amicus brief). We find no clear concession in that brief. But even if the party made such a concession—which is far from clear—the rule articulated in Youngs did not turn on whether the corporate employees’ conduct was at issue. Put plainly, this court has never made application of the Loudon rule turn on whether the nonparty doctor was potentially at fault, and to allow the protection afforded by Loudon to be evaded by the defense counsel without leave of the court would gut our holding in that case.

¶59 More importantly, nothing in Loudon or subsequent cases suggests that the doctor-patient privilege has less force when the doctor may have been negligent or otherwise at fault. Loudon gave three reasons for its holding—to prevent chilling the doctor-patient relationship, to avoid inadvertent improper disclosure of patient confidences, and to avoid a situation where defense counsel might be called upon to be an impeachment witness. 110 Wash.2d at 678-80, 756 P.2d 138. None of these three reasons have any different force when the doctor might have been at fault.

¶60 Second, Virginia Mason argues that once a doctor is allegedly at fault, there should no longer be any concern about the defense shaping their testimony through ex parte contact. Regardless of whether that is true in the abstract, Snyder himself has not alleged that these doctors are at fault or named them as parties. Adopting Virginia Mason's approach would also gut Loudon by effectively allowing the defense to decide which doctors might be at fault and thus outside of Loudon’s scope.

¶61 Third, Virginia Mason contends, prior to Newman, it was generally understood that “corporate attorney-client privilege extends to communications between corporate counsel and former employees with respect to relevant knowledge gained during their relationship with the company.” Virginia Mason's Suppl. Br. at 4 & n.3 (citing In re Coordinated Pretrial Procs. in Petrol. Prod. Antitrust Litig., 658 F.2d 1355, 1361 (9th Cir. 1981); In re Allen, 106 F.3d 582, 605-07 (4th Cir. 1997); Exp.-Imp. Bank of the U.S. v. Asia Pulp & Paper Co., 232 F.R.D. 103, 112 (S.D.N.Y. 2005)). But none of the three cases it cites attempted to harmonize a corporate attorney-client privilege with a doctor-patient privilege. Instead, these cases concerned antitrust, a civil rights suit between a government watchdog group and a state attorney general, and a debtor-creditor dispute, respectively. Whatever the general understanding in the industry might have been, such communications are inconsistent with the clear mandates of Loudon and Newman.

¶62 Fourth, Virginia Mason argues that it is entitled to privileged ex parte contact with the plaintiff's nonparty doctors because these doctors have a contractual duty under their employment agreements to cooperate with Virginia Mason and the defense counsel Virginia Mason provides to them to defend against claims accruing from their work at the hospital. Contra Newman, 186 Wash.2d at 782, 381 P.3d 1188. In support, Virginia Mason cites a federal district court case concerning an interlocutory discovery matter in a dispute between a business and former employees. See Infosystems, Inc. v. Ceridian Corp., 197 F.R.D. 303 (E.D. Mich. 2000). Virginia Mason calls our attention to this passage:

The Court ․ concludes that counsel's communications with a former employee of the client corporation generally should be treated no differently from communications with any other third-party fact witness. Admittedly, there are exceptions to this general rule. As noted earlier, privileged communications which occur during the period of employment do not lose their protection when the employee leaves the client corporation. Moreover, there may be situations where the former employee retains a present connection or agency relationship with the client corporation, or where the present-day communication concerns a confidential matter that was uniquely within the knowledge of the former employee when he worked for the client corporation, such that counsel's communications with this former employee must be cloaked with the privilege in order for meaningful fact-gathering to occur.

Id. at 306 (citations omitted) (citing Valassis v. Samelson, 143 F.R.D. 118, 124 (E.D. Mich. 1992)); see also Virginia Mason's Suppl. Br. at 23. From this, Virginia Mason reasons, it should be allowed privileged ex parte contact with its former employees it has a duty to defend and indemnify, even though they have a doctor-patient relationship with Snyder.

¶63 But Infosystems did not involve a doctor-patient privilege, and this court was aware when it decided Newman that some other courts had extended corporate attorney-client privilege to former employees. Newman, 186 Wash.2d at 782, 381 P.3d 1188. We find no reason to distinguish Newman here. Limiting privileged ex parte contact with nonparty doctors, as required by our precedent, does not prevent cooperation with Virginia Mason and the defense counsel Virginia Mason provides them to defend against claims accruing from their work at the hospital. Youngs, 179 Wash.2d at 670, 316 P.3d 1035.

¶64 Fifth, Virginia Mason argues that its communications with the three nonparty doctors should be deemed privileged under the common interest doctrine as recognized in Sanders, 169 Wash.2d 827, 240 P.3d 120. Under this doctrine, parties who share common interests are allowed to share communications and documents with each other without waiving attorney-client privilege. Id. at 853, 240 P.3d 120. The Court of Appeals did not resolve this issue because it concluded the record did not establish that Virginia Mason had a common interest or joint representation agreement. Snyder, 34 Wash. App. 2d at 166. Virginia Mason argues, correctly, that the doctrine may apply even in the absence of a joint representation agreement. See, e.g., Kittitas County v. Allphin, 195 Wash. App. 355, 368, 381 P.3d 1202 (2016).

¶65 Sanders concerned (among other things) the scope of the Public Records Act exception for attorney-client privileged documents. 169 Wash.2d 827, 240 P.3d 120. The court concluded that the attorney-client privilege exception could apply to documents shared between government agencies so long as the common interest doctrine applied. Id. at 840, 853, 240 P.3d 120. Nothing in Sanders considered the doctor-patient privilege or anything analogous.

¶66 Virginia Mason and its supporting amici urge this court to graft this “common interest” doctrine into the Loudon/Newman line of cases and create an exception for cases where the defendant hospital and the plaintiff's nonparty doctors’ interests align. In essence, Virginia Mason asks the court to use the common interest doctrine to do in this case what it declined to do with the corporate attorney-client privilege doctrine in Youngs—hold that the defendant's interest in privileged ex parte communications with the plaintiffs’ doctors completely trumps Loudon.

¶67 But Snyder has not named the three doctors as defendants or identified them in his complaint or his default judgment motion as at fault. And while no formal joint representation agreement is required, Virginia Mason must make a sufficient factual showing of a common legal interest and shared expectation of confidentiality between itself and the ex-employee doctors before this doctrine might apply. See Kittitas County v. Allphin, 190 Wash.2d 691, 713-15, 416 P.3d 1232 (2018). The trial court found that Virginia Mason had made no such showing. CP at 1243. We therefore reject Virginia Mason's argument as factually unsupported and because extending this doctrine to any doctor the defendant hospital decides might be implicated in a plaintiff's injury, at least without leave of the court, would undermine Loudon.

¶68 Sixth, Virginia Mason argues that it should be allowed to have privileged ex parte contact with Snyder's nonparty doctors under the corporate attorney-client privilege recognized in Youngs. But the privilege recognized in Youngs was limited to the functional equivalent of current employees. 179 Wash.2d at 653, 316 P.3d 1035; see also Newman, 186 Wash.2d at 774-75, 381 P.3d 1188; Hermanson, 196 Wash.2d at 581, 475 P.3d 484.⁷ We have explicitly declined to extend it in Newman, and Virginia Mason does not show that case is distinguishable or should be overruled.

¶69 We stress that under the Loudon line of cases, defense counsel is permitted to speak with any or all of the plaintiff's nonparty doctors. These cases merely require the defense to have those communications either with the plaintiff's knowledge and consent or through the formal discovery rules.⁸

¶70 We conclude that Loudon governs this case and none of the reasons Virginia Mason gives to depart from Loudon are persuasive. We affirm the courts below that Loudon applies and that Virginia Mason's ex parte contact with Snyder's nonparty doctors violated the principles that case set forth.⁹

2. Is default judgment on liability warranted?

¶71 We review a trial judge's decisions on discovery sanctions for abuse of discretion. Magaña v. Hyundai Motor Am., 167 Wash.2d 570, 582, 220 P.3d 191 (2009) (citing Wash. State Physicians Ins. Exch. & Ass'n v. Fisons Corp., 122 Wash.2d 299, 338, 858 P.2d 1054 (1993)). “A trial court abuses its discretion when its order is manifestly unreasonable or based on untenable grounds,” such as an application of the incorrect legal standard. Wash. State Physicians Ins. Exch., 122 Wash.2d at 339, 858 P.2d 1054. Discovery sanctions should be calculated to deter, punish, compensate, and educate. Id. at 356, 858 P.2d 1054. Generally, the sanction should be proportional to the violation and should be the least severe sanction that is adequate. Magaña, 167 Wash.2d at 590, 220 P.3d 191.

¶72 In this case, the trial judge denied Snyder's motion for a default judgment as a sanction for violating Loudon without prejudice, remarking that the record was not sufficiently developed to determine the appropriate sanction. The Court of Appeals granted review limited to whether the plaintiff bears the burden of establishing prejudice. It concluded that the moving party bore the burden of establishing prejudice. Snyder, 34 Wash. App. 2d. at 171. However, “[t]he extent to which the patient can show prejudice remains a factor bearing on the appropriate sanction.” Id.

¶73 Snyder argues that he has been deprived of the ability to try his case without the hospital influencing witnesses through ex parte contacts. Snyder argues that he should not bear the burden of showing he was prejudiced by improper ex parte contact in order to be entitled to relief. Instead, he contends, he should be entitled to relief unless Virginia Mason can show he was not prejudiced.

¶74 We faced a somewhat similar situation in Smith. There, the hospital's defense counsel violated Loudon through ex parte contacts with one of the plaintiff's nonparty doctors, Dr. Johansen, who the defense had called as a fact witness at trial. Smith, 170 Wash.2d at 661, 244 P.3d 939 (Alexander, J., lead opinion); id. at 678, 244 P.3d 939 (C. Johnson, J. concurring/dissenting). This came to light at trial. Plaintiff's counsel learned of this improper ex parte contact during trial while cross-examining Dr. Johansen. Id. at 663-64, 244 P.3d 939. Smith unsuccessfully moved for a mistrial. Id.

¶75 After the jury returned a defense verdict, the plaintiff unsuccessfully moved for a new trial where Dr. Johansen would be excluded, arguing “ ‘there's no way to unring the bell.’ ” Id. at 664, 244 P.3d 939. The trial court denied the motion. Id. The Court of Appeals affirmed on several grounds, including its own conclusion that the plaintiff had not established prejudice. Id.

¶76 On review, the plaintiff argued she was entitled to a new trial regardless of whether she could demonstrate prejudice. The lead opinion rejected that approach, arguing that the moving party must show harm in order to be entitled to relief. Id. at 672, 244 P.3d 939 (citing Ferry County v. Concerned Friends, 155 Wash.2d 824, 831, 123 P.3d 102 (2005)). It also rejected the plaintiff's argument that in such cases, automatically excluding Dr. Johansen's testimony on a retrial was necessarily appropriate. “To require a new trial and exclusion of the nonparty treating physician's testimony as an automatic response to all Loudon violations, in our judgment, would be an unnecessarily harsh result and would not take into consideration the nuances of particular cases.” Id.

¶77 The two justices who joined the lead opinion concluded that to warrant a new trial, the plaintiff had to show harm and had the burden of making that showing. Id. The four-justice concurrence/dissent would have ordered a new trial whenever Loudon was violated. Id. at 679, 244 P.3d 939 (C. Johnson, J., concurring/dissenting) It concluded that to do otherwise would be to put an insurmountable burden on an innocent party. Id. at 678-79, 244 P.3d 939. As the remaining justices did not reach the issue, there was no controlling majority on the question.

¶78 Snyder argues that it is inequitable to put the burden on him to show he was prejudiced under these facts instead of on Virginia Mason to show he was not. He contends that putting the burden on the plaintiff incentivizes violations of Loudon. He notes that the privilege log produced in relation to the Loudon violations lists over 400 items that have not been disclosed, which, he says, indicates extensive efforts to shape the testimony of his nonparty doctors.

¶79 The trial court denied Snyder's motion for default judgment because it “lacks the information to determine if the violation substantially prejudiced plaintiff.” CP at 4214. The Court of Appeals affirmed, finding that “[a]s a Loudon violation is a type of discovery violation, we see no basis for crafting a different standard that shifts the burden to the party that violated the rule to prove the absence of some degree of prejudice for every Loudon violation.” Snyder, 34 Wash. App. 2d at 171.

¶80 Treating a Loudon violation as merely a discovery violation is insufficient to safeguard the policies underlying Loudon that go beyond the discovery context. The Loudon rule serves to “protect[ ] the doctor-patient fiduciary relationship” and to “protect[ ] the physician's ‘interest in avoiding inadvertent wrongful disclosures,’ ” in addition to “aid[ing] in proper trial administration, preventing the occasion from arising where defense counsel might be called to testify as an impeachment witness.” Youngs, 179 Wash.2d at 659-60, 316 P.3d 1035 (quoting Loudon, 110 Wash.2d at 680, 756 P.2d 138). Loudon rests on the premise that ex parte contact with a plaintiff/patient's health care providers is harmful to the fiduciary relationship, to the trust it is built on, and ultimately to health care outcomes. For this reason, it is appropriate to recognize a baseline of prejudice that flows from any Loudon violation, regardless of whether it negatively impacts a plaintiff's litigation interests. The Magaña test for discovery sanctions, which the Court of Appeals applied here, requires that “the opposing party was substantially prejudiced in its ability to prepare for trial,” 167 Wash.2d at 584, 220 P.3d 191 (emphasis added)—but that inquiry is simply insufficient to account for the significant interests protected by the Loudon rule.

¶81 Four justices in Smith recognized that harm to the physician-patient fiduciary relationship inheres in every Loudon violation, and we now adopt a presumed prejudice standard to capture the inherent harm of Loudon. We hold that upon finding a Loudon violation, prejudice is presumed and plaintiffs need not prove an actual impact on the litigation in order to obtain relief. Imposing such a burden would “mudd[y] [Loudon’s policy] choice by condemning what occurred in this case but then concluding no remedy should be available to the ‘innocent’ party” and “plac[ing] an almost insurmountable burden on the party that has done nothing wrong.” Smith, 170 Wash.2d at 678, 244 P.3d 939 (C. Johnson, J., concurring/dissenting).

¶82 In determining the appropriate remedy, the trial court has discretion to weigh the extent of prejudice, which can certainly include litigation impact. Depending on the degree of prejudice shown, an appropriate remedy might range from a monetary sanction on the low end to a default judgment of liability on the high end.

¶83 In this case, related to the question of determining prejudice and assessing an appropriate remedy is the need to examine the records Virginia Mason withheld on grounds of privilege in relation to the Loudon violation. Snyder contends that under the principles embraced in Cedell, he is entitled to at least in camera review of the documents disclosed in Virginia Mason's privilege log, and not merely the handful the trial court reviewed on the special master's recommendation. We agree.

¶84 Cedell concerned an insurance bad faith claim where the plaintiff sought production of the insurance company's claim file. 176 Wash.2d at 690, 295 P.3d 239. Bruce Cedell's home had been severely damaged in a fire. He contended his insurance company delayed processing his claim for months and, once it did act, made an offer well below that which its own investigation estimated the covered damages to be. The court concluded, relevantly, that once the insured made a showing that the insurer acted in bad faith, the court would review the materials that that the insurer claimed to be privileged. Id. at 700, 295 P.3d 239. If the court concluded that there was a foundation to permit a bad faith claim to proceed, the attorney-client privilege would be deemed waived. Id.

¶85 Cedell turned on the insurance company's quasi-fiduciary obligation to its insured. Id. at 698, 295 P.3d 239. The quasi-fiduciary obligation of an insurer to its insured is analogous to the obligation a doctor has to their patient not to disclose privileged information. Indeed, the risk of such disclosure is part of the harm that Loudon seeks to protect against. Requiring proof of prejudice flowing from a Loudon violation while at the same time denying access to relevant facts imposes an “insurmountable burden” on the plaintiff. Smith, 170 Wash.2d at 678, 244 P.3d 939 (C. Johnson, J., concurring/dissenting). While the trial court has discretion to determine remedies, this discretion cannot be properly exercised without a reasonable assessment of all relevant records that could establish prejudice. We vacate the trial court's denial of Snyder's motion for default judgment and remand for reconsideration with a presumption of prejudice from Virginia Mason's Loudon violations. The trial court's reconsideration of remedy should be based on a full review of records in relation to the Loudon violation, including in camera review where necessary.

3. Did Virginia Mason waive the protection of the quality improvement statute?

¶86 Virginia Mason asserts the quality improvement committee privilege in this case. Washington's quality improvement statute directs hospitals to “maintain a coordinated quality improvement program for the improvement of the quality of health care services rendered to patients and the identification and prevention of medical malpractice.” RCW 70.41.200(1). The purpose of the quality improvement statute is to improve health care by creating a system where health care professionals can candidly review their own work and the work of their colleagues. Lowy v. PeaceHealth, 174 Wash.2d 769, 774, 280 P.3d 1078 (2012) (citing Coburn v. Seda, 101 Wash.2d 270, 275, 279, 677 P.2d 173 (1984)).

¶87 This statute “requires that hospitals collect information concerning their patients’ ‘negative health care outcomes’ and protects this information from civil discovery.” Youngs, 179 Wash.2d at 666, 316 P.3d 1035 (quoting and citing RCW 70.41.200(1)(e), (3)). The legislature was concerned that making this information subject to discovery would create a disincentive for effective reporting and candid discussion. Lowy, 174 Wash.2d at 774, 280 P.3d 1078. To attempt to guard against that

[i]nformation and documents, including complaints and incident reports, created specifically for, and collected and maintained by, a quality improvement committee are not subject to review or disclosure, except as provided in this section, or discovery or introduction into evidence in any civil action, and no person who was in attendance at a meeting of such committee or who participated in the creation, collection, or maintenance of information or documents specifically for the committee shall be permitted or required to testify in any civil action as to the content of such proceedings or the documents and information prepared specifically for the committee.

RCW 70.41.200(3).

¶88 While the information specifically prepared for and collected by a quality improvement committee is privileged and not subject to disclosure, that privilege is limited. Lowy, 174 Wash.2d at 787, 280 P.3d 1078. It does not extend to information that “is completely external to the hospital's ‘careful self-assessment.’ ” Id. (quoting Coburn, 101 Wash.2d at 274, 677 P.2d 173). The privilege also does not apply to documents that simply went in or out of the quality improvement committee. Id. “But documents created as part of the inner workings of the committee are privileged and disclosure of those documents may not be compelled.” Id.

¶89 To prevent the quality improvement committee from becoming a way for hospitals to avoid their discovery obligations, “members of the committee must be screened from defense counsel in an action against the hospital for negligence or medical malpractice.” Youngs, 179 Wash.2d at 657, 316 P.3d 1035. “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 integrity of the [quality improvement] process, allowing the [quality improvement] committee to meet its statutory requirement to collect and maintain information ‘specifically for’ [quality improvement] purposes.” Id. at 669, 316 P.3d 1035.

¶90 Dr. Glenn serves on Virginia Mason's quality improvement committee. The quality improvement committee investigated Snyder's surgery. Snyder contends that Dr. Glenn was not screened from the litigation. There is evidence in the record that suggests this is true. Dr. Glenn received talking points from defense counsel before meeting with one of Snyder's nonparty doctors after Snyder filed this case, and Dr. Glenn is on Virginia Mason's witness list.

¶91 “Waiver occurs because the purpose of the privilege no longer exists.” Carson, 123 Wash.2d at 214, 867 P.2d 610. As we noted in Lowy, “[t]he legislature was concerned that if the data and other information generated by quality improvement committees could be used against a hospital, it would create a disincentive for hospitals to report effectively and evaluate candidly information concerning the hospital's experience.” 174 Wash.2d at 775, 280 P.3d 1078. But that purpose—to avoid disincentives for candor—no longer takes precedence where the quality improvement committee's inner workings have been tainted by the involvement of personnel or the receipt of information that by law clearly should not have been there in the first place. Here, the involvement of Dr. Glenn tainted the quality improvement committee's work, as it is clear he cannot act as both a member of the quality improvement committee and a participant in the litigation. The record demonstrates that he consulted with litigation counsel in the course of talking with former Virginia Mason employees, and the trial court found a Loudon violation. At this juncture, neither the trial court nor a special master has reviewed the records relating to this violation. Information relating to Dr. Glenn's involvement as a litigation witness and any records arising from his conversations with former employees whose treatment of Snyder is at issue in the litigation cannot be shielded under the quality improvement committee statutory privilege.

¶92 We vacate the trial court's denial of Snyder's motion to compel production of quality improvement materials and remand for further proceedings including in camera review where necessary.

Conclusion

¶93 Under Loudon, Virginia Mason was required to either use the formal discovery procedures or obtain Snyder's consent before communicating with his nonparty doctors. Snyder, as the party seeking relief, does not bear the burden of establishing prejudice; rather, prejudice is presumed. A hospital waives the quality improvement statute privilege by failing to screen a doctor who sits on the quality improvement committee from being involved in litigation. We affirm the courts below in part and remand to the trial court for further proceedings consistent with this opinion.

¶94 In Loudon v. Mhyre, this court held that defense counsel may not communicate privately with a personal injury plaintiff's nonparty doctors who treated the plaintiff after the alleged negligence occurred.¹ Instead, the defendant must use formal discovery rules to communicate with those doctors. To reach this result, we weighed competing and important values: a patient's interest in the privacy of their medical information and a defendant's right to investigate claims against them, communicate with counsel, and prepare a defense. We held that the risks to patients’ privacy interests outweighed the burden on the defendant of using formal discovery to communicate with a plaintiff's nonparty doctors who treated the plaintiff after the allegedly negligent incident.

¶95 In this case, we are faced with very different facts than those in Loudon. In Loudon, the defendants sought ex parte (private) contact with doctors who treated the plaintiff after the allegedly negligent incident. The plaintiff had not alleged that those subsequent doctors were negligent, and those subsequent doctors had no relationship to the defendants.

¶96 By contrast, in this case, plaintiff Michael Snyder sued Virginia Mason Medical Center (VMMC) for injuries resulting from surgery performed by doctors employed by VMMC. The basis of Snyder's claim is that the doctors involved in the surgery were negligent, and he seeks to hold VMMC vicariously liable for those doctors’ conduct. Snyder argues that VMMC's ex parte contacts with these allegedly negligent nonparty doctors violated Loudon.

¶97 But unlike Loudon, this case involves a defendant's ability to communicate with the very doctors whose care the plaintiff challenges in the lawsuit. And unlike Loudon, this case involves a claim of vicarious liability based on that allegedly negligent care. Thus, in this case, the nonparty doctors are both former employees of the defendant and also essential witnesses for the defendant because their acts put the defendant at risk of liability. Applying Loudon to bar free communication between the defendant employer and its nonparty former employee doctors in this context prevents the defendant from investigating or defending itself. It also prevents the nonparty doctor accused of negligence from fully protecting their own interests.

¶98 The Loudon rule protects important interests. But the rule's reach is not unlimited. I would hold that Loudon does not bar ex parte contact between a defendant and nonparty treating doctors who are employees or former employees of the defendant and whose care gave rise to the plaintiff's claim against the defendant. Additionally, even if Loudon did apply to such contact, I would hold that defense counsel may engage in privileged, ex parte communication with such doctors under our decision in Youngs,² even if the doctors are former employees of the defendant.

¶99 I therefore respectfully dissent.

Facts and Procedural History

¶100 In 2018, Snyder underwent surgery at VMMC. Clerk's Papers (CP) at 2. As alleged in the complaint, a catheter was misplaced during surgery; when it was removed, Snyder experienced serious complications and ultimately suffered permanent, disabling injuries. Id. at 2-3. Snyder later filed a medical malpractice lawsuit against VMMC, alleging vicarious liability and corporate negligence, among other claims. Id. at 3.³ Both claims are based on the acts of VMMC's then-employee doctors.

¶101 It is now undisputed that first-year medical resident Dr. Molly Downey, fifth-year resident Dr. Weslee Chew, and vascular surgeon Dr. Nathan Aranson were involved in the procedure. Id. at 2210, 2217 (deposition of Dr. Brandenberger). By the time Snyder filed the lawsuit, all three doctors had left VMMC for other jobs.

¶102 VMMC is a self-insured teaching hospital that provides professional liability insurance to its employee doctors. VMMC has a contractual duty to indemnify the employee doctor for any claims resulting from medical services the doctor renders on behalf of VMMC, even if the claim is filed after termination of employment. See, e.g., id. at 1532 (Dr. Aranson's employment contract). The doctor has a contractual duty to cooperate with VMMC in its investigation and defense of such claims, even after termination of employment. Id.

¶103 After Snyder filed the lawsuit, VMMC's defense counsel determined that Drs. Aranson, Downey, and Chew had direct knowledge of the facts giving rise to the complaint and would likely be deposed. Id. at 3972 (declaration of Karen Markwith). VMMC contacted the doctors to notify them of the lawsuit and, pursuant to its contractual obligation, arranged for separate counsel Jennifer Oetter to represent each of them. Id.

¶104 During discovery, Snyder learned that ex parte communications had occurred between VMMC (through its defense counsel, risk managers, and/or third-party claims manager) and the nonparty doctors or their attorney Oetter. See id. at 1549-1607 (VMMC's privilege log listing 460 items). Snyder also learned that a member of VMMC's quality improvement committee had personally visited Dr. Chew to reassure him that VMMC supported him.

¶105 Snyder argued that these communications violated Loudon. He sought disclosure of the communications. VMMC moved for a protective order, arguing that Loudon does not bar a defendant's ex parte contact with nonparty doctors whose care is at issue in the lawsuit and that the communications at issue were protected from disclosure by the attorney-client privilege, the work product doctrine, and/or the common interest privilege. Id. at 494-99.

¶106 The trial court rejected VMMC's argument that Loudon does not apply to former employee nonparty treating doctors whose care is at issue in the litigation. Id. at 2089. It ruled that VMMC had violated Loudon and its progeny to the extent that it engaged in ex parte communication with the former employee nonparty doctors and/or those doctors’ counsel. Id. at 2090-91.

¶107 The trial court also denied VMMC's motion for an order allowing it to have ex parte, privileged communications with the nonparty doctors. Id. at 2187, 2557.

¶108 Snyder moved for default judgment as a sanction for the alleged Loudon violations. Id. at 3656. The trial court denied the motion without prejudice, ruling that at that time, the record lacked evidence to support a finding that any Loudon violations substantially prejudiced Snyder. Id. at 4159. The trial court also denied Snyder's motion to compel production of certain documents that VMMC had identified as protected by the statutory quality improvement committee privilege. Id. at 2905, 3964.

¶109 Both parties sought discretionary review. The Court of Appeals affirmed the trial court's determination “that the Loudon rule applies and prohibits ex parte contact between VMMC counsel and the former employee nonparty physicians.” Snyder v. Virginia Mason Med. Ctr., 34 Wash. App. 2d 146, 152, 566 P.3d 873 (2025) (published in part).⁴ That court also held that VMMC's failure to screen a quality improvement committee member from defense counsel did not automatically waive the statutory privilege against the compelled disclosure of quality improvement documents. Id. at 153, 566 P.3d 873. Both parties sought review in this court, which we granted. 5 Wash.3d 1001, 574 P.3d 537 (2025).

Analysis

I. Loudon, Smith,5 and Youngs do not bar a defendant from having ex parte contact with an employee or former employee nonparty treating doctor whose care gives rise to the plaintiff's claim against the defendant

¶110 Today, the majority extends Loudon way beyond its facts to bar a defendant from having any ex parte contact with a plaintiff's nonparty treating doctor, even when the plaintiff seeks to hold a defendant vicariously liable for allegedly negligent care that the doctor provided while employed by the defendant. The majority's holding ignores important distinctions between this case and Loudon, including the fact that this case implicates the statutory attorney-client privilege and an insurer's fiduciary relationship with its insured. The majority stretches Loudon’s rationale far beyond its facts. And even if Loudon did apply in this context, I would extend the rule in Youngs—which never considered this situation—to allow corporate counsel to have confidential, privileged communications with former employee nonparty doctors who have direct knowledge of the facts giving rise to the litigation.

A. Loudon and Smith involved a defendant's contact with subsequent treating doctors whose care was not implicated in the lawsuit

¶111 Our legislature has enacted a physician-patient privilege statute, which “prohibits examining a physician in a civil action as to any information acquired in attending a patient without his or her consent.” Carson v. Fine, 123 Wash.2d 206, 212, 867 P.2d 610 (1994) (citing RCW 5.60.060(4)). This statutory privilege serves important purposes. It “aims to ‘protect[ ] the sanctity’ of the doctor-patient relationship; to recognize that the ‘relationship between physician and patient is a fiduciary one of the highest degree ․ involv[ing] 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.’ ” Youngs, 179 Wash.2d at 651, 316 P.3d 1035 (alterations in original) (internal quotation marks omitted) (quoting Smith, 170 Wash.2d at 667, 244 P.3d 939).

¶112 But the privilege is not absolute. “Once a patient decides to file a medical malpractice action and disclose that which had been confidential, he or she cannot insist on continued confidentiality from her physicians regarding the condition at issue based on the fiduciary nature of their relationship.” Carson, 123 Wash.2d at 219, 867 P.2d 610. Thus, when a patient voluntarily places their physical or medical condition in issue in litigation, the patient waives the privilege as to that condition and as to all doctors who treated the patient for that condition, subject to limitations imposed by court rule. Youngs, 179 Wash.2d at 658, 316 P.3d 1035 (quoting Laws of 1986, ch. 305, § 101(4)(b)); RCW 5.60.060(4)(b).⁶

¶113 In Loudon, we added a gloss to the privilege statute and the waiver rule. We considered “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.” Loudon, 110 Wash.2d at 675-76, 756 P.2d 138. In that case, the plaintiff sued two doctors, alleging malpractice. The defendant doctors sought ex parte contact with the plaintiff's subsequent treating doctors. These subsequent treating doctors had no relationship to the defendant doctors, and the plaintiff did not allege that their care was negligent. This court concluded that as a matter of public policy, defense counsel could not have ex parte contact with these nonparty doctors and must use formal discovery procedures to contact them.

¶114 To reach this conclusion, we weighed the potential risks to the patient-plaintiff in allowing ex parte defense contact with the plaintiff's treating doctors against the burden on the defendant of communicating with those doctors only through formal discovery. We described the risks as follows: the risk that the doctor would inadvertently disclose irrelevant, privileged medical information to defense counsel (i.e., medical information outside the scope of the plaintiff's waiver of physician-patient privilege); the related risk that such an inadvertent disclosure could expose the doctor to personal liability; and the risk of chilling the physician-patient relationship if a patient knows their doctor may communicate in litigation with the patient's opponent.⁷ We concluded that these “potential risks” outweighed “any hardship caused the defendants by having to use formal discovery procedures.” Id. at 680, 756 P.2d 138. Thus, we held that “defense counsel may not engage in ex parte contacts with a plaintiff's physicians.” Id. at 682, 756 P.2d 138.

¶115 To be sure, the language we used in Loudon was broad. But, like in any case, the facts are critical to understanding the limits of our holding. The Loudon defendants sought ex parte contact with doctors whose care was not at issue in the lawsuit and with whom the defendants had no relationship that would give rise to vicarious liability. Further, the defendants in Loudon had no basis to assert that their communications with the subsequent treating doctors were protected by the attorney-client privilege. Under those facts, we concluded that the hardship to the defendants of having to use formal discovery procedures was outweighed by the risks to the plaintiff.

¶116 The facts in this case are very different. Here, the defendant is a corporate hospital. The doctors whose care is challenged were employees of that corporation, so the defendant's contacts with those employees over litigation-related issues may be protected by the corporate attorney-client privilege. The plaintiff has sued the hospital, alleging that it is vicariously liable for the negligence of its former employee doctors who treated the plaintiff. The conduct of those doctors forms the entire basis of the lawsuit against the defendant; the doctors are critical witnesses for the defense. And the hospital defendant has a fiduciary relationship with those doctors as their insurer, see Tank v. State Farm Fire & Cas. Co., 105 Wash.2d 381, 385, 715 P.2d 1133 (1986), along with mutual contractual obligations with the doctors that endure beyond the termination of the employment relationship—obligations that require ongoing communication.

¶117 In these distinct circumstances, the balance of interests changes. A defendant has the “right to fully investigate its potential liability” and to defend itself. Youngs, 179 Wash.2d at 665, 316 P.3d 1035. Here, barring ex parte contact with the doctors prevents the defendant from effectively exercising those rights. Barring ex parte contact with the doctors also interferes with the defendant's contractual obligations and its fiduciary duties as the doctors’ insurer. In this context, the hardship to the defendant of being denied free and privileged communication with the doctors outweighs the potential risks to the plaintiff. Further, unlike in Loudon, the nonparty doctors here have a strong interest in the outcome of litigation in which their conduct may be deemed negligent, and thus they may have their own interests in communicating with the defendant. The rationales behind the Loudon rule do not apply here.

¶118 In a later case, Smith, we articulated another rationale supporting the Loudon rule: a concern that defense counsel's ex parte contact with nonparty doctors poses the risk that defense counsel will improperly influence the nonparty doctor's testimony. 170 Wash.2d at 688, 244 P.3d 939. But Smith, like Loudon, dealt with a subsequent treating physician whose care was not at issue, and Smith contained no discussion of the attorney-client privilege.⁸ The court in Smith had no reason to consider the special hardships posed by applying the Loudon rule to the context presented in this case. Smith’s additional rationale does not outweigh the defendant's interest in fully investigating and preparing a defense to a claim of vicarious liability under these circumstances.

B. Youngs did not address the distinction between nonparty treating doctors alleged to be at fault and those not alleged to be at fault because the distinction was not presented in that case. But because our decision failed to note that distinction, some courts—and the majority here—apply its rule barring ex parte communication between corporate counsel and treating doctors to both groups. Youngs does not support such an application

¶119 In the two consolidated cases in Youngs, plaintiffs sued the hospitals where they alleged they received negligent treatment from the hospitals’ employee doctors. The plaintiffs argued that Loudon barred defense counsel from ex parte contact with certain nonparty treating doctors. The hospitals countered that the Upjohn corporate attorney-client privilege ⁹ permitted and protected ex parte conversations between hospital defense counsel and the hospitals’ employee doctors. Thus, Youngs again required this court to balance important, conflicting interests.

¶120 Notably, neither of the plaintiffs in Youngs asserted that Loudon barred defense counsel from ex parte contact with their allegedly negligent doctors. In fact, contrary to the majority's assertion, both plaintiffs acknowledged that they did not seek to bar such contact.¹⁰ Contra majority at ––––.

¶121 However, the Youngs opinion announced a rule that fails to distinguish between doctors whose care is at issue in the lawsuit and doctors whose care is not at issue. We considered the purposes of the attorney-client privilege and the physician-patient privilege—without considering the distinction between those two sets of doctors—and concluded that “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.” Youngs, 179 Wash.2d at 664, 316 P.3d 1035 (first emphasis added) (footnote omitted). Read literally, Youngs states a broad rule that is based on the presumption which Loudon would otherwise apply—even when the nonparty treating doctor's care is at issue in the litigation.

¶122 Once again, while our rule was expressed broadly, it must be understood in context. Defendant-hospital's communications with allegedly negligent doctors were not at issue in Youngs; hence, the court did not have a reason to consider whether the Loudon rationale applies equally to that category of doctors. I would hold that the Youngs rule is properly understood more narrowly as applying only to doctors whose care is not implicated in the lawsuit.¹¹

¶123 Now, considering that issue directly, I would course correct and hold that the rationale underpinning the Loudon rule applies to the Loudon context—and does not apply to nonparty treating doctors whose conduct forms the basis of the claim against the defendant.¹²

¶124 The majority disagrees. It dismisses the important distinctions between the facts in Loudon and Youngs and the facts in this case. It states that “nothing in Loudon or subsequent cases suggests that the doctor-patient privilege has less force when the doctor may have been negligent or otherwise at fault.” Majority at ––––. As discussed above, that is not accurate.

¶125 But even if that were accurate, the plaintiff's interests are only half of the equation—Loudon balanced both the risks to the plaintiff and the hardship to the defendant. In the context presented in this case, the balance of interests favors the defendant's right to freely investigate and effectively defend itself against a claim of vicarious liability. To hold otherwise creates an unfair result that bears little rational relationship to Loudon’s purpose.

¶126 Consider the ways that the majority's application of Loudon and Youngs in this distinct context create the opportunity for unfair gamesmanship. A plaintiff can limit the hospital defendant's ability to freely communicate with key witnesses by deciding not to name a doctor as a defendant, while still seeking to hold the hospital liable for that doctor's care. Or, a plaintiff can strategically dismiss a doctor as a named defendant at any point, thereby abruptly cutting off the hospital defendant's ability to communicate freely with that doctor—even when the hospital and the doctor are jointly represented by the same counsel.¹³

II. Even if Youngs applied to allegedly at-fault nonparty doctors, I would extend Youngs’ application of the attorney-client privilege to communications between plaintiff's nonparty doctors who are former employees of the defendant and shared an attorney-client privilege with the defendant. Newman 14 is distinguishable

¶127 Alternatively, even accepting Youngs as the majority understands it (as applying to all of plaintiff's nonparty doctors, regardless of whether the doctor's care is at issue), I would clarify that Youngs’ application of the attorney-client privilege extends to former employee doctors, not just current ones. Youngs’ rationale regarding the corporate attorney-client privilege applies with equal force to those doctors, since they possess critical information that defense counsel needs to provide sound legal advice to the corporate client. Newman, a later case that held that the corporate attorney-client privilege did not extend to former nonmedical employees of a school district, is distinguishable. 186 Wash.2d 769, 381 P.3d 1188.

A. Youngs focused on corporate counsel's duty to gather information about incidents that expose the corporate client to liability to provide sound legal advice to the client; this rationale applies with equal force whether the nonparty doctor is a current or former employee

¶128 As mentioned above, Youngs presented a situation where the Upjohn corporate attorney-client privilege would protect certain ex parte communications between a hospital's corporate defense counsel and hospital employees, but Loudon would bar those same communications. 179 Wash.2d at 663, 316 P.3d 1035. To resolve this conflict, we had to “balance the values underlying the attorney-client privilege against those underlying the physician-patient privilege” (even though the physician-patient privilege had been waived). Id. at 650, 316 P.3d 1035.

¶129 We acknowledged the important privacy values supporting the physician-patient privilege and the risks of ex parte contact described in Loudon, as discussed above. We then considered the purposes of the attorney-client privilege, codified at RCW 5.60.060(2)(a), and focused on the seminal United States Supreme Court decision in Upjohn. In Upjohn, the Court had to determine whether the attorney-client privilege could apply to nonmanagerial employees of a corporation. The Upjohn Court unanimously rejected the narrow “control group” test adopted by some lower courts, which limited corporate attorney-client privilege to communications between corporate counsel and the corporation's officers and top management. Instead, it adopted a flexible, functional approach to determining when communications between corporate counsel and nonmanagerial employees enjoy the protection of attorney-client privilege. That approach requires courts to consider whether “the underlying purposes of the attorney-client privilege” would be served by protecting the communications. 449 U.S. at 395, 101 S.Ct. 677.¹⁵

¶130 The Upjohn Court described some of those purposes. It “sought to protect counsel's ability to ‘ascertain[ ] the factual background’ of a ‘legal problem,’ and it rejected the narrow ‘control group’ test because that test would frustrate the lawyer's investigative abilities.” Youngs, 179 Wash.2d at 664, 316 P.3d 1035 (alteration in original) (quoting Upjohn, 449 U.S. at 390, 101 S.Ct. 677). It recognized that the attorney-client privilege “exists to protect not only the giving of professional advice to those who can act on it but also the giving of information to the lawyer to enable him to give sound and informed advice.” Upjohn, 449 U.S. at 390, 101 S.Ct. 677. In the corporate setting, nonmanagerial or lower-level employees “might well be the only source of information relevant to legal advice, since they can, ‘by actions within the scope of their employment, embroil the corporation in serious legal difficulties.’ ” Youngs, 179 Wash.2d at 662, 316 P.3d 1035 (quoting Upjohn, 449 U.S. at 391, 101 S.Ct. 677). Without talking to those employees, corporate counsel “ ‘may find it extremely difficult, if not impossible, to determine what happened’ to trigger potential corporate liability.” Id. (quoting Upjohn, 449 U.S. at 392, 101 S.Ct. 677).

¶131 In Youngs, we expressly adopted Upjohn’s reasoning and its “ ‘flexible’ ” test. Id. (quoting Wright v. Grp. Health Hosp., 103 Wash.2d 192, 201-02, 691 P.2d 564 (1984)). And we expressly relied on this reasoning to resolve the conflict in Youngs. Id. at 665, 316 P.3d 1035. We held 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.” Id. at 664, 316 P.3d 1035 (internal quotation marks omitted) (quoting Upjohn, 449 U.S. at 392, 101 S.Ct. 677). Such communications must be limited to the facts of the alleged negligent event. Id. at 665, 316 P.3d 1035. 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.” Id.

¶132 Youngs’ reasoning on the attorney-client privilege applies with equal force to the plaintiff's nonparty treating doctors who are former employees of the defendant. In fact, it applies with even greater force where, as here, the alleged conduct of those nonparty doctors forms the basis of the lawsuit against the corporate defendant. After all, Upjohn extended the attorney-client privilege beyond the control group precisely because lower-level employees, while acting in their capacity as agents of the employer (even if they were not “speaking agents”), may expose the employer to liability. 449 U.S. at 391, 101 S.Ct. 677.¹⁶ Obviously, corporate counsel's need to determine what happened when an employee is accused of negligence does not disappear simply because that employee moves on to another job. For this reason, “[v]irtually all courts hold that communications between company counsel and former company employees are privileged if they concern information obtained during the course of employment.” Exp.-Imp. Bank of the U.S. v. Asia Pulp & Paper Co., 232 F.R.D. 103, 112 (S.D.N.Y. 2005).¹⁷

¶133 Limiting corporate counsel's ability to fully investigate and defend against alleged negligence based merely on employment status does not serve the policy goals of Youngs or Loudon. Instead, it creates an unwarranted burden on the statutory attorney-client privilege and on a corporate defendant's “right to fully investigate its potential liability.” Youngs, 179 Wash.2d at 665, 316 P.3d 1035. If Youngs covers allegedly negligent nonparty employee doctors, it should cover those doctors even when they are no longer current employees.

B. Newman is distinguishable

¶134 The majority opines that this court already decided, in Newman, that the corporate attorney-client privilege can never apply to former employees under any circumstances. But Newman is distinguishable.

¶135 In Newman, decided a few years after Youngs, a student sued a school district for negligence after suffering a serious injury playing football. The plaintiff sought disclosure of certain communications between the school district's counsel and former employee football coaches—not medical providers. The school district asserted that those communications were protected by attorney-client privilege.

¶136 In a 5-4 decision, the Newman majority held that those communications were not privileged because “former employees categorically differ from current employees with respect to the concerns identified in Upjohn and Youngs.” 186 Wash.2d at 780, 381 P.3d 1188. Newman focused on the fact that a former employee “generally” no longer has an agency relationship with the employer, “can no longer bind the corporation and no longer owes duties of loyalty, obedience, and confidentiality to the corporation.” Id. It held—in the context of that case, which did not involve doctors, hospitals, ongoing insurance obligations or ongoing contractual cooperation and indemnification promises—that extending the attorney-client privilege to such former employees would not serve the purposes of the privilege.

¶137 In my view, Newman’s narrow focus on an individual's current employment status as the determinative factor in justifying application of the attorney-client privilege conflicts with Youngs and Upjohn. First, neither of those decisions based the corporate attorney-client privilege on the employee's duties of loyalty or obedience to the employer. Instead, those decisions emphasized corporate counsel's investigatory duty and justified the corporate attorney-client privilege because it would promote the free and frank exchange of information that would allow corporate counsel to provide sound legal advice to the client. Second, both Youngs and Upjohn emphasized that the corporation's “need to know” certain information supported extending the privilege to nonmanagerial employees. Newman unduly minimizes the importance of these considerations.

¶138 But even accepting the Newman majority's holding, Newman itself recognized that in some cases, an employer and former employee continue to owe each other duties and that some courts have therefore extended the privilege to communications with such former employees. Id. at 780 n.2, 381 P.3d 1188 (citing Peralta v. Cendant Corp., 190 F.R.D. 38, 41 n.1 (D. Conn. 1999); Infosystems, Inc. v. Ceridian Corp., 197 F.R.D. 303, 306 (E.D. Mich. 2000)), 781 n.3 (quoting Restatement (Third) of the Law Governing Lawyers § 73 cmt. e (A.L.I. 2000)).

¶139 This case presents that precise situation. VMMC has a continuing contractual duty to defend its former employee doctors, regardless of their current employment status, against claims arising from their acts during their employment. And the former employee doctors have a continuing contractual duty to cooperate with the hospital's investigation and defense of such claims. Given this fact, Newman’s rationale does not logically apply to this case. Instead, this fact supports extending the attorney-client privilege to corporate counsel's communications with its former employees, if the other requirements for attorney-client privilege are met. See Youngs, 179 Wash.2d at 653 n.4, 316 P.3d 1035 (citing Haines v. Liggett Grp., Inc., 975 F.2d 81, 90 (3d Cir. 1992) (attorney-client privilege “extends to verbal statements, documents and tangible objects conveyed by both individual and corporate clients to an attorney in confidence for the purpose of any legal advice”)).¹⁸

III. VMMC did not waive the statutory quality improvement privilege by failing to screen a quality improvement committee member from this litigation

¶140 RCW 70.41.200(1) requires hospitals to maintain “a coordinated quality improvement program” aimed at improving the quality of health care services rendered and preventing medical malpractice. Among other requirements, quality improvement programs must collect and maintain “information concerning the hospital's experience with negative health care outcomes and incidents injurious to patients.” RCW 70.41.200(1)(e). Materials “created specifically for, and collected and maintained by, a quality improvement committee” are protected from civil discovery. RCW 70.41.200(3).

¶141 The statutory quality improvement privilege is narrow. “The privilege does not protect what goes into or comes out of the quality improvement committees. But documents created as part of the inner workings of the committee are privileged and disclosure of those documents may not be compelled.” Lowy v. PeaceHealth, 174 Wash.2d 769, 787, 280 P.3d 1078 (2012).

¶142 In this case, VMMC argues that the quality improvement privilege protects some of the documents on its privilege log. The trial court denied Snyder's motion to compel disclosure of these documents.

¶143 In Youngs, we explained that a hospital employer could comply with the quality improvement statutes and avoid violating Loudon by screening quality improvement committee members from malpractice litigation. Snyder argues that VMMC has waived any claim to quality improvement privilege because it failed to screen a member of the quality improvement committee, Dr. Michael Glenn, from the litigation in this case.

¶144 The Court of Appeals correctly rejected this argument. It explained, “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.” Snyder, No. 83526-2-I, slip op. (unpublished portion) at 29, https://www.courts.wa.gov/opinions/pdf/835262% 20Order% 20and% 20Opinion.pdf.

¶145 Here, the record suggests that VMMC did not screen Dr. Glenn from the litigation. But, as discussed above, this did not result in a Loudon violation because Loudon does not bar a hospital employer's ex parte communications with former employee doctors whose care is at issue in litigation. Thus, I find no basis to conclude that VMMC has waived the quality improvement privilege. I would affirm the trial court's denial of Snyder's motion to compel disclosure of materials covered by the quality improvement privilege.¹⁹

Conclusion

¶146 I would affirm in part and reverse in part.

¶147 First, I would hold that Loudon does not bar a defendant's ex parte contact with plaintiff's nonparty doctors whose allegedly negligent conduct gives rise to the plaintiff's claim against the defendant. Thus, I would reverse the Court of Appeals ruling that those contacts violated Loudon.

¶148 Second, I would remand to the trial court to address certain other issues that depend on the resolution of the Loudon issue. Specifically, I would hold that the corporate attorney-client privilege may extend to defense counsel's communications with the former employee doctors. Here, neither the trial court nor the Court of Appeals assessed whether the privilege applies to those communications because it first concluded that any such communications violated Loudon. I would therefore remand to the trial court to determine in the first instance whether VMMC has met the other prerequisites to application of the attorney-client privilege to its communications with the former employee doctors or their counsel (e.g., confidentiality, communication for the purpose of obtaining legal advice). I would further instruct the trial court to consider VMMC's arguments about the common interest privilege in light of its conclusion about whether the prerequisites to application of the attorney-client privilege were met, given that Loudon does not bar VMMC's communications with the nonparty doctors.

¶149 Third, I would reverse the Court of Appeals holding that VMMC's violation of Loudon led to a violation of the quality improvement privilege—because I don't think that VMMC violated Loudon. Given the majority's holding on that point, though, I would affirm the Court of Appeals holding that the extent to which the plaintiff can show prejudice is a factor bearing on the appropriate sanction for a Loudon violation and that failure to screen a quality improvement committee member from defense counsel in a malpractice action does not automatically waive statutory quality improvement protections.

¶150 Finally, given this resolution, I would not reach VMMC's additional constitutional arguments.²⁰

¶151 The majority's decision today expands the Loudon rule far beyond its original context. It creates an unwarranted burden on a corporate defendant's “right to fully investigate its potential liability” and to defend itself. Youngs, 179 Wash.2d at 665, 316 P.3d 1035. It erodes the statutory attorney-client privilege. And it fails to fully address how its broad rule will apply to the specific facts of this case. I therefore respectfully dissent.

FOOTNOTES

1.   Western Litigation is not a party to this case but has worked closely with Virginia Mason and has been subject to court orders regarding its communications with the nonparty doctors and Virginia Mason. See, e.g., Clerk's Papers at 1218 (Ord. Granting Pl.’s Mot. to Compel Compliance with Subpoena Duces Tecum and to Find W. Litig., a Div. of Gallagher Bassett, in Contempt).

2.   Later, the trial court dismissed Dr. Aranson as a defendant based on the statute of limitations, while allowing Snyder to argue that Virginia Mason was vicariously liable for any negligence on Dr. Aranson's part. Dr. Brandenberger was also dismissed as a defendant on the plaintiff's motion. Virginia Mason is the sole remaining defendant.

3.   Virginia Mason also argued that Snyder had waived any objection to ex parte contact between the defendant hospital and Dr. Aranson by waiving any objection to Virginia Mason's attorney representing Dr. Aranson after Dr. Aranson moved to intervene. These arguments are not before us.

4.   The trial court did not require Virginia Mason to disclose communications with Dr. Aranson after the time he moved to intervene.

5.   Virginia Mason did not seek this court's review of these issues.

6.   The Washington Defense Trial Lawyers; the University of Washington and the University of Washington School of Medicine; the Washington State Healthcare Defense Law Firms; and the Washington State Medical Association, Washington State Hospital Association, and the American Medical Association have submitted amici briefs in support of Virginia Mason. The Washington Association for Justice Foundation has submitted an amicus brief in support of Snyder.

7.   Even if Youngs applied, the case limited privileged communications to the facts of the alleged incident. See 179 Wash.2d at 653, 316 P.3d 1035. The record suggests much more than that happened here.

8.   We respectfully disagree with our dissenting colleagues that Loudon and its progeny do not apply to former employees whose conduct is at issue. These cases set forth general rules and, in several cases, were applied in situations where the former employees’ conduct was at issue. See Newman, 186 Wash.2d 769, 381 P.3d 1188; Smith, 170 Wash.2d at 679, 244 P.3d 939 (C. Johnson, J., concurring/dissenting); Loudon, 110 Wash.2d at 677-78, 756 P.2d 138. We also disagree that Youngs can be extended to these facts given our clear holding to the contrary in Newman. 186 Wash.2d at 781, 381 P.3d 1188. By their plain terms, these cases apply and, as Virginia Mason has not shown either that they are incorrect and harmful or that their basis has been eroded, they remain good law.We also respectfully disagree with our dissenting colleagues that the limitations imposed by Loudon and its progeny prevent defendants from fully investigating their own potential liability, or from fulfilling their indemnification responsibilities. Nothing in our case law prevents defendants from communicating with their former employees. They merely require the defense to do so either with the consent of the plaintiff or through formal discovery rules. We leave for another day whether a trial court could grant the defendant leave for privileged ex parte communications with former employees as Virginia Mason did not first seek such leave.

9.   For the first time on review, Virginia Mason argues that limiting communications between the nonparty doctors and the defendant hospital violates the nonparty doctors’ equal protection and due process rights. We decline to reach this issue under RAP 2.5(a) because it was not presented to the trial court and Virginia Mason does not establish that it falls within an exception to the general rule that courts will not consider issues raised for the first time on appeal.

1.   110 Wash.2d 675, 756 P.2d 138 (1988).

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

3.   The complaint originally named lead surgeon Dr. Jared Brandenberger as a codefendant. Snyder later successfully moved to dismiss Dr. Brandenberger as a named defendant. VMMC is the sole remaining named defendant.

4.   The appellate court also held that the extent to which the plaintiff can show prejudice is a factor bearing on the appropriate sanction for a Loudon violation. The majority takes a different approach; it adopts a new rule that presumes prejudice from a Loudon violation. Because I conclude that VMMC's contacts with the nonparty treating doctors in this case did not violate Loudon, I do not address the majority's decision to change the law on this issue.

6.   This waiver rule was originally a judge-made rule that courts applied on a case-by-case basis. Youngs, 179 Wash.2d at 657, 316 P.3d 1035. However, the legislature codified the waiver rule in 1986. The statute now expressly provides that a plaintiff waives the privilege 90 days after filing an action for personal injuries or wrongful death. RCW 5.60.060(4)(b).

7.   In passing, we also noted the risk that ex parte contact with treating doctors may result in defense counsel becoming an impeachment witness if the doctor's ex parte statements conflict with his or her later testimony. Loudon, 110 Wash.2d at 680, 756 P.2d 138. In a later case, we appropriately observed it was not clear “why this is a greater concern with medical witnesses than with any other witness.” Holbrook v. Weyerhaeuser Co., 118 Wash.2d 306, 313, 822 P.2d 271 (1992).

8.   In Smith, plaintiff sued Dr. Schwagler and Orthopedics International, contending that Dr. Schwagler was negligent in performing a spine surgery. 170 Wash.2d at 662, 244 P.3d 939. Prior to trial, defense counsel sent the transcript of the deposition of one of plaintiff's experts to the attorney for Dr. Johansen, a nonparty doctor who treated Smith after Dr. Schwagler performed spine surgery. Id. at 663, 244 P.3d 939. The majority appears to state that Dr. Johansen's care was implicated in the lawsuit against Dr. Schwagler and Orthopedics International. Majority at ––––. I find nothing in Smith to suggest that.

9.   Upjohn Co. v. United States, 449 U.S. 383, 101 S. Ct. 677, 66 L. Ed. 2d 584 (1981).

10.   Plaintiff Aolani Glover limited her allegations of negligence to the care she received in the Harborview Medical Center emergency room and objected only to ex parte contact with providers who treated her after that allegedly negligent ER care. Resp't’s Br., State v. Glover, No. 67350-5-I, at 5-6 (Wash. Ct. App. 2011). Plaintiff Marc Youngs explained that he did not seek to bar employers from contact with employee doctors whose conduct was at issue in the lawsuit. Pet'r Youngs’ Resp. to Br. of Amicus Curiae Wash. Def. Trial Laws., Youngs v. PeaceHealth, No. 87811-1, at 7 (Wash. 2013) (“Nothing in the rule Plaintiff is urging prevents an attorney's investigation of a case․ The attorney will be in no different position than the defense attorney in Smith ․, who could talk ex parte to the physicians whose conduct was at issue, but who could not communicate ex parte with a subsequent treating physician.” (emphasis added)), 11 (heading in brief titled “The Defense of a Medical Malpractice Claim does not Require Ex Parte Communications with Treating Physicians whose Conduct is not at Issue.” (emphasis added) (boldface and underlining omitted)); Appellant's Opening Br., Youngs v. PeaceHealth, No. 67013-1-I, at 4 (Wash. Ct. App. 2011) (Youngs contended that Loudon “prohibited defense counsel from engaging in ex parte contact with Mr. Youngs’ treating physicians, other than [two] treating physicians whose conduct is at issue.” (emphasis added)). WSAJF, amicus for the plaintiffs, agreed with this characterization: “Youngs and Glover also appear to concede that ex parte contact is permitted with physicians whose conduct may subject the corporate defendant to vicarious liability.” Br. of Amicus Curiae Wash. State Ass'n for Justice Found., Youngs v. PeaceHealth, No. 87811-1, at 5 (Wash. 2013)). I disagree with the majority's contrary presentation of the facts and concessions in Youngs.

11.   In Hermanson v. MultiCare Health System, Inc., this court appropriately applied the Youngs rule to permit a hospital defendant to communicate ex parte with an independent contractor who is the agent of the defendant and the “functional equivalent” of an employee. 196 Wash.2d 578, 581, 475 P.3d 484 (2020) (citing Youngs, 179 Wash.2d at 671, 316 P.3d 1035). The independent contractor at issue in Hermanson was a doctor whose care was at issue in the lawsuit. Thus, this case also presented an opportunity for the court to consider whether the Loudon rule applies at all to nonparty doctors whose conduct forms the basis of the plaintiff's vicarious liability claim against the hospital. However, the Hermanson court stated that it was unnecessary to decide that issue. Id. at 590, 475 P.3d 484. By declining to consider the hospital's argument that Loudon should not apply to an allegedly at-fault doctor, Hermanson compounded the error made in Youngs.

12.   Loudon’s rationale is especially inapplicable where, as here, the defendant is also the doctors’ insurer. Applying Loudon to such contacts strays far from the facts of that case and implicates additional legal issues that Loudon had no reason to consider. I agree with VMMC that Loudon does not apply to communications made with the doctors or their attorney in VMMC's capacity as the doctors’ insurer and that such communications may be protected by the attorney-client and common interest privileges, if the other prerequisites to application of those privileges are met. See Barry v. USAA, 98 Wash. App. 199, 204-05, 989 P.2d 1172 (1999) (communications between insured, insurer, and defense counsel are privileged); Sanders v. State, 169 Wash.2d 827, 853, 240 P.3d 120 (2010) (common interest doctrine “provides that when multiple parties share confidential communications pertaining to their common claim or defense, the communications remain privileged as to those outside their group” (citing Broyles v. Thurston County, 147 Wash. App. 409, 442, 195 P.3d 985 (2008))). I would remand to the trial court to consider VMMC's attorney-client privilege and common interest privilege arguments in light of the fact that Loudon does not apply to VMMC's communications with the doctors.

13.   VMMC argues that is what happened in this case, where the plaintiff dismissed Dr. Brandenberg as a named defendant close to the original scheduled trial date. Under the majority's rule, plaintiff's decision would cut off VMMC's ability to communicate freely with Dr. Brandenberg, even though he and VMMC were jointly represented by the same counsel.

15.   In Upjohn, the Court considered several factors and concluded that the purposes underlying the attorney-client privilege would be served by protecting the communications at issue. 449 U.S. at 394, 101 S.Ct. 677. The Court left open the question whether posttermination communications with former employees about matters occurring during employment would retain the privilege. Id. at 394 n.3, 101 S.Ct. 677.

16.   A “speaking agent” is a person who “ ‘can speak and act for the entity and can settle controversies on its behalf.’ ” Wright, 103 Wash.2d at 202, 691 P.2d 564 (quoting Note, DR 7-104 of the Code of Professional Responsibility Applied to the Government “Party”, 61 Minn. L. Rev. 1007, 1017 (1977)). By rejecting the “control group” test, Upjohn makes clear the attorney-client privilege can extend even to agents of a corporation who are not speaking agents.

17.   See also Hanover Ins. Co. v. Plaquemines Parish Gov't, 304 F.R.D. 494, 498-500 (E.D. La. 2015) (noting that “every federal court to address the issue, with the exception of a single district court decision in 1985, has held that the privilege extends to former employees in certain contexts”).

18.   The majority rejects the above analysis in passing by stating that this court has already applied “Loudon and its progeny” “to former employees whose conduct is at issue.” Majority at –––– n.8. But the cases the majority cites do not support that assertion. First, the majority cites Newman, but as discussed, that case had nothing to do with medical providers or with the Loudon rule; it certainly cannot be read as an instance of this court applying the Loudon rule to a former employee doctor whose conduct is at issue in a lawsuit. Next, the majority cites Justice Johnson's partial concurrence in Smith, but, again, there is no suggestion that the nonparty doctor at issue in that case was a former employee of the defendant. Finally, the majority cites Loudon itself, but as established, the doctors at issue in Loudon were not former employees of the defendant and their conduct was not at issue in the lawsuit.

19.   The majority concludes that VMMC “at least partially waived the statutory privilege” by failing to shield Dr. Glenn from litigation. Majority at ––––. In doing so, the majority creates a brand-new waiver rule that conflicts with the plain language of the quality improvement statute. The legislature's intent is clear in that statute: materials created specifically for, and collected or maintained by, a hospital's quality improvement committee are not subject to compelled disclosure. RCW 70.41.200(3); Lowy, 174 Wash.2d at 787, 280 P.3d 1078 (noting that RCW 70.41.200(3) does not “list any exception to the protection from discovery”).

20.   VMMC argues that applying Loudon in this context violates the equal protection and due process rights of both VMMC and the doctors. Because I would hold that Loudon does not apply to VMMC's communications with the allegedly negligent, former employee nonparty doctors, I would not reach these additional arguments. But I note some disagreements with the majority's approach to these arguments.The majority declines to consider VMMC's argument that the application of Loudon in this context violates the nonparty doctors’ due process and equal protection rights because it says VMMC made those arguments for the first time on appellate review. Majority at –––– n.9. I agree that VMMC does not appear to have made the equal protection arguments (regarding either VMMC or the doctors) in the trial court. But VMMC did make the argument about doctors’ due process rights in the trial court, so it is preserved for review. E.g., CP at 1773 (VMMC's Opp'n to Pl.’s Mot. to Direct Special Master), 2196 n.41 (VMMC's Mot. Allowing for Ex Parte & Privileged Commc'ns).Likewise, VMMC's separate argument that applying Loudon in this context violates VMMC's own due process right to prepare a defense is preserved because VMMC made this argument in the trial court. CP at 2196 n.41 (VMMC's Mot. Allowing for Ex Parte & Privileged Commc'ns). The majority does not mention or address this argument.

González, J.

WE CONCUR: Stephens, C.J. Johnson, J. Montoya Lewis, J. Mangia, J. Melody, J. Angelis, J., did not participate