The Washington Supreme Court has ruled 6-3 that Seattle-based Virginia Mason Medical Center violated a state rule barring defense lawyers from privately communicating with a patient’s treating physicians, including physicians who no longer work for the hospital, according to a client brief from Luvera Law Firm, which represents the patient.
The Oct. 1 decision stems from a lawsuit Michael Snyder filed in March 2019. During surgery at Virginia Mason in January 2018, a catheter line ended up outside the vein, and when it was withdrawn he suffered a massive hemorrhage in his chest and a prolonged cardiac arrest. He was left with permanent, disabling injuries. Three physicians involved in the surgery had left Virginia Mason, but the hospital remained responsible for their defense, arranged their legal counsel and shared risk managers and a claims administrator with them. The hospital’s own privilege log listed more than 400 communications that may have violated Mr. Snyder’s right to have his attorney present. A 1988 state Supreme Court ruling, Loudon v. Mhyre, requires defense counsel to reach a plaintiff’s treating physicians only with the plaintiff’s knowledge and consent or through formal discovery.
The court rejected Virginia Mason’s argument that the rule should not apply to former employees for whom it would be vicariously liable. It wrote that letting the defense decide which physicians fall outside the rule “would gut Loudon.” The majority also held that “upon finding a Loudon violation, prejudice is presumed,” which rejects the lower courts’ approach of requiring Mr. Snyder to prove harm. The court also found the hospital had at least partially waived its quality improvement privilege because a member of its quality improvement committee took part in the litigation. The case now returns to the trial court, which will reconsider a remedy after reviewing the withheld records.
“Before, defendants could do these things and there would be little or no consequences. Now there’s a presumption of harm to the plaintiff,” John Gagliardi, an attorney with Luvera Law Firm, said in the brief.
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