Background

Patients have a high expectation their communication, diagnoses, and treatment will remain confidential when speaking with their medical providers. This includes treating physicians, nurses, and social workers. Washington law enforces this privileged bond. How far does this privilege extend? What other privileges may defeat the physician-patient privilege, if any?

Washington Supreme Court Case Ruling

The Washington Supreme Court took an in-depth look at just which privilege(s) may supersede the physician-patient privilege in Hermanson v. MultiCare Health System, Inc. (“Hermanson”) 475 P.3d 484 (2020). The court held the corporate attorney-client privilege trumps plaintiff’s physician-patient privilege, with certain limitations. The holding extends previous, parallel rulings found in existing Washington state case law.

In Hermanson, plaintiff sideswiped an unoccupied vehicle and collided with a utility pole on September 11, 2015. He was transported to defendant MultiCare facility, where MultiCare nurses and social workers treated him. A nonparty physician, Dr. Patterson, also treated him.

Dr. Patterson was an independent contractor of MultiCare, pursuant to a signed agreement between MultiCare and Trauma Trust, Dr. Patterson’s employer. MultiCare created Trauma Trust.  Dr. Patterson had his own office at MultiCare and was expected to abide by MultiCare’s policies and procedures.

During Hermanson’s course of treatment, an unknown person tested his blood and found a high blood-alcohol level. This information was reported to the police.  Consequently, Hermanson was charged with first degree negligent driving and hit and run of an unattended vehicle.

Hermanson sued based on the disclosure of his blood results. Although Dr. Patterson was not identified as a party, an initial demand letter implicated him. MultiCare retained counsel to jointly represent MultiCare, Dr. Patterson, and Trauma Trust. Hermanson objected to this joint representation and argued MultiCare’s ex parte communications with Dr. Patterson violated Hermanson’s physician-patient privilege.

MultiCare filed a motion for a protective order to permit ex parte communications with Dr. Patterson. MultiCare also sought to protect its ex parte communications with the two nurses and the social worker who cared for Hermanson. The trial court (1) denied MultiCare’s motion as to Dr. Patterson, (2) granted MultiCare’s motion as to the two nurses, and (3) denied MultiCare’s motion as to the social worker. The court based denials on a finding Dr. Patterson was not a MultiCare employee, and the social worker did not fall under any type of medical privilege.

Both parties filed motions for discretionary review, which the court granted. The Court of Appeals (1) affirmed the trial court’s ruling as to Dr. Patterson (no ex parte contact), (2) affirmed the trial court’s ruling as to the two nurses (permitting contact), and (3) reversed the trial court’s ruling as to the social worker (permitting contact).  The Court of Appeals reasoned MultiCare may have ex parte contact with its social worker employee. Both parties filed petitions for review, which the Washington Supreme Court granted.

In Youngs v. PeaceHealth,[1] the Washington Supreme Court held a defendant hospital may have ex parte communications with a plaintiff’s nonparty treating physician – who was the hospital’s employee – provided those communications are limited to the facts surrounding the alleged negligent event. Here, the Washington Supreme Court held the nonparty physician in this case, while technically an independent contractor of MultiCare, still maintained a principal-agent relationship with MultiCare and served as the “functional equivalent” of a MultiCare employee. such that Youngs would apply in this case.  Therefore, MultiCare could engage in ex parte communications with the physician under the same limitations the Court set forth in Youngs.

The Court also allowed MultiCare to have ex parte communications with the nonphysician employees under the limitations set forth in Youngs.  It reasoned the nurse-patient privilege and the social worker-client privilege are essentially identical in purpose to the physician-patient privilege, and the Court already held in Youngs the corporate attorney-client privilege trumps the physician-patient privilege when the hospital needs to gather information about an alleged negligent event.

Takeaway

This ruling is important, as it grants defense attorneys direct access to pertinent case facts in a timely fashion. Too often, defense counsel is in the dark regarding key facts and must engage in (sometimes spirited) motions practice to uncover these facts. The ability to speak with physicians, nurses, and social workers who cared for plaintiff early in a case provides valuable time to prepare an early analysis. Early analysis permits formulation of strategy regarding responsibility, reasonableness, and common sense. Early strategy then allows important conversations regarding a chosen defense strategy with the client and carrier.

[1] Youngs v. PeaceHealth, 179 Wn.2d 645, 671, 316 P.3d 1035 (2014).

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