The Rules in Washington Medical Malpractice Cases Continue to Shift

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Earlier this morning, a deeply divided Washington Supreme Court issued an opinion that allows defense lawyers in certain cases to speak privately with a medical malpractice plaintiff’s treating physicians. The Court’s decision today in Youngs v. PeaceHealth fundamentally changes the status quo in handling and investigating medical malpractice cases in Washington. In some instances, defense attorneys are now allowed to privately discuss a plaintiff’s health care outside the presence of the plaintiff or his or her attorneys, and to have those discussions protected by the attorney-client privilege.

The Youngs Court held that lawyers for a healthcare employer can have ex parte, privileged conversations with a plaintiff’s treating physician, if certain factors are met. These are:

  1. The healthcare entity is named as a party to the lawsuit;
  2. The treating physician is not a party to the suit and is an employee of the healthcare entity;
  3. The conversations meet the prerequisites to application of the corporate attorney-client privilege (typically, “statements, documents, and tangible objects” conveyed to an attorney in confidence “for the purpose of any legal advice”);
  4. The conversations are with a treating physician with “direct knowledge” of the event or events triggering litigation; and
  5. The conversations concern “the facts of the alleged incident.” 

If these factors are met, a defense lawyer can directly interview the treating physician in a privileged context. The Court did explicitly state that defense interviews of treating physicians regarding a plaintiff’s prior and subsequent treatment are prohibited, however; the scope of the defense interview must be restricted to “what happened.”

The practical implications of this ruling are very significant to the medical malpractice bar. More and more healthcare entities in Washington are choosing to employ physicians directly, due in part to cost savings and streamlined administration. This means that patients increasingly are seen and treated by employee physicians of larger and larger healthcare organizations. As a result, when medical negligence claims arise, they will frequently involve treating physicians who may well be employed by a defendant entity. The Youngs decision will become the shield by which defense lawyers in many cases can obtain information about the alleged negligence directly from a plaintiff’s treating physicians (and do so early on in a claim), and prohibit disclosure of the substance of those investigative conversations in later litigation.

In reaching its decision, the Youngs Court grappled with competing policies of the attorney-client privilege (for the healthcare organizations) and the physician-patient privilege (for the medical negligence plaintiff). A narrow 5-4 majority of the Court essentially determined that the attorney-client privilege is more important than a physician-patient privilege in this context. The five-factor test announced by the Court appears unwieldy, however. This decision likely will spur more frequent discovery motions in medical negligence cases to determine if and how this new rule applies. Regrettably, this will serve to drive litigation costs even higher in an already contentious and expensive category of cases, though opening potentially useful avenues of discovery to the defense bar.

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Benjamin Nivison

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