Washington State Supreme Court Limits Attorney-Client Privilege For Healthcare-Provider Corporations

In a major decision that affects healthcare-provider corporations, the Washington State Supreme Court significantly limited attorneys' ability to engage in privileged conversations with the provider corporation's employed physicians and other medical staff. The court held that, except in narrowly tailored circumstances, the State's common-law prohibition of defense attorneys' ex parte communications with a plaintiff-patient's non-party physicians supersedes the corporation's attorney-client privilege with its employed physicians. Youngs v. Peacehealth, 316 P.3d 1035 (Wash. 2014).

BATTLE OF THE PRIVILEGES

Washington's physician-patient privilege statute precludes a physician from revealing her patient's communications, but the patient automatically waives this privilege "as to all physicians or conditions" 90 days after filing a personal injury or wrongful death case. RCW § 5.60.060(4)(b). In Loudon v. Mhyre, 756 P.2d 138 (Wash. 1988), the Washington State Supreme Court prohibited defense attorneys from holding ex parte communications with a plaintiff-patient's non-party treating physicians.

But Washington also follows the corporate attorney-client privilege adopted by the U.S. Supreme Court in Upjohn...