Washington State Supreme Court hears arguments over hospital defense contacts with treating physicians

The Washington State Supreme Court heard oral argument Thursday in Michael Snyder v. Virginia Mason Medical Center over whether hospital defense counsel may have privileged, ex parte communications with physicians who treated a plaintiff.

Catherine Smith, counsel for the petitioner, told the court that existing case law (Youngs, Loudoun, Newman, Hermanson and Smith) establishes limits on corporate defense contacts with nonparty physicians and protects the physician–patient fiduciary relationship. "We found out about this because of a very clear Smith violation," Smith said, arguing the hospital engaged in secret conversations and then misrepresented to the plaintiff and trial court that Loudoun barred contact with certain physicians.

Rhiannon Fraunefeld, representing Virginia Mason, said the court has applied a flexible Loudoun interpretation that permits defense investigation when needed and noted that independent counsel had been assigned for some physicians. Fraunefeld argued that where a physician owes a continuing contractual duty to the hospital—such as by tail insurance or contractual cooperation obligations—attorney–client or common-interest protections can apply and, at a minimum, ex parte contact should be allowed. "There was at that point in time, the medical record had already been disclosed in discovery that revealed the fact that these physicians were involved in the Operating Room," Fraunefeld said, describing the defense timeline.

Justices pressed both sides on the scope of the rule: whether a prior employee is distinguishable from other third‑party witnesses, whether notice to the opposing party would suffice, and whether vicarious liability or contractual indemnity should change the analysis. One justice asked whether the hospital's approach would mean that virtually any contracting arrangement that required cooperation would extend the corporate privilege; Fraunefeld acknowledged the tension and said courts could narrow the rule to circumstances in which the physician's care is directly at issue and the physician owes continuing obligations to the institution.

The parties also disputed whether Quality Improvement (QI) committee materials are categorically protected. Fraunefeld told the court the statutory scheme and case law treat QI materials as an embargo against discovery and argued screening information from defense counsel—rather than disqualifying individuals who wear multiple hats—would be the practical solution. A justice questioned how a "must be screened" rule would operate for high‑level clinicians who perform both clinical and administrative functions.

Smith urged relief in this case and contended the defendant should bear the burden of proving privilege and disproving prejudice because, she said, the record includes privilege logs and email exchanges that the trial court did not examine. Fraunefeld responded that there is no record evidence that Virginia Mason counsel communicated directly with the physicians and that physicians and their counsel maintain attorney–client privilege; she argued any communications between separate counsel may be protected under a common‑interest doctrine.

The court asked further clarifying questions about the precise legal theory that would extend privilege—vicarious liability, contractual obligations, or coverage arrangements such as tail insurance—and whether ex parte contact without privilege would be permissible. Both sides acknowledged doctrinal complexity and urged the court to adopt either a predictable bright‑line rule or a clarified flexible approach. The case was submitted at the end of argument.

The court did not issue a decision from the bench; the case was submitted for decision and the court adjourned.