Loudon rule in Washington

2010Requiring parties to use formal discovery processes when contacting nonparty treating physicians, we said, would not be *944 overly burdensome because "[d]efendants could still reach relevant medical records; cost and scheduling problems of depositions could be minimized by using depositions pursuant to CR 31; plaintiff's counsel might agree to an informal interview with both counsel present; and the purpose behind the discovery rules—to prevent surprise at trial —was maintained." Holbrook, 118 Wash.2d at 310 , 822 P.2d 271 (citing Loudon, 110 Wash.2d at 680 , 756 P.2d 138 ). ¶ 13 As we have i

2010Requiring parties to use formal discovery processes when contacting nonparty treating physicians, we said, would not be *944 overly burdensome because "[d]efendants could still reach relevant medical records; cost and scheduling problems of depositions could be minimized by using depositions pursuant to CR 31; plaintiff's counsel might agree to an informal interview with both counsel present; and the purpose behind the discovery rules—to prevent surprise at trial —was maintained." Holbrook, 118 Wash.2d at 310 , 822 P.2d 271 (citing Loudon, 110 Wash.2d at 680 , 756 P.2d 138 ). ¶ 13 As we have i

2010In Carson v. Fine, 123 Wash.2d 206, 227 , 867 P.2d 610 (1994), although we explained that "this court held in Loudon that defense counsel may not communicate ex parte with a plaintiff's treating physicians," we went on to state that "[t]he [ Loudon ] court feared that ex parte interviews might result in disclosure of irrelevant, privileged information and decided that the plaintiff's interest in avoiding such disclosure could best be protected by allowing plaintiff's counsel to participate in physician interviews. " (Emphasis added.) In Holbrook v. Weyerhaeuser Co., 118 Wash.2d 306, 309-10 , 8

2010In Carson v. Fine, 123 Wash.2d 206, 227 , 867 P.2d 610 (1994), although we explained that "this court held in Loudon that defense counsel may not communicate ex parte with a plaintiff's treating physicians," we went on to state that "[t]he [ Loudon ] court feared that ex parte interviews might result in disclosure of irrelevant, privileged information and decided that the plaintiff's interest in avoiding such disclosure could best be protected by allowing plaintiff's counsel to participate in physician interviews. " (Emphasis added.) In Holbrook v. Weyerhaeuser Co., 118 Wash.2d 306, 309-10 , 8

2024In Ford, counsel for the party who had suffered the Loudon violation had not explored the communication at trial, “even by way of an offer of proof to preserve the issue for appeal,” and no deposition was in the record, so there was no basis for comparing testimony after the ex parte contact. 61 Wn.

2024In Ford, counsel for the party who had suffered the Loudon violation had not explored the communication at trial, “even by way of an offer of proof to preserve the issue for appeal,” and no deposition was in the record, so there was no basis for comparing testimony after the ex parte contact. 61 Wn.

2024In Rowe, the court held the redaction of certain portions of trial testimony after a Loudon violation was not an effective cure for inherent prejudice that had already occurred. 100 Wn.

2024In Rowe, the court held the redaction of certain portions of trial testimony after a Loudon violation was not an effective cure for inherent prejudice that had already occurred. 100 Wn.

2014RCW 70.41.200(l)(e), (3).* 11 The defendants argue that both statutes preclude the application of the Loudon rule to a defendant hospital’s employees. ¶32 With respect to the QI regime, the defendants cite Burger v. Lutheran General Hospital, 198 Ill. 2d 21 , 759 N.E.2d 533 , 259 Ill.

2014RCW 70.41.200(l)(e), (3).* 11 The defendants argue that both statutes preclude the application of the Loudon rule to a defendant hospital’s employees. ¶32 With respect to the QI regime, the defendants cite Burger v. Lutheran General Hospital, 198 Ill. 2d 21 , 759 N.E.2d 533 , 259 Ill.

2014First, it protects the doctor-patient fiduciary relationship: The relationship between physician and patient is a “fiduciary one of the highest degree ... involving] every element of trust, confidence, and good faith.” Lockett v. Goodill, 71 Wn.2d 654, 656 , 430 P.2d 589 (1967). . . . “[W]e find it difficult to believe that a physician can engage in ex parte conference with the legal adversary of his patient without endangering the trust and faith invested in him by his patient.” Loudon, 110 Wn.2d at 679 (alterations in original) (footnote omitted) (quoting Petrillo v. Syntex Labs., Inc., 148

2014First, it protects the doctor-patient fiduciary relationship: The relationship between physician and patient is a “fiduciary one of the highest degree ... involving] every element of trust, confidence, and good faith.” Lockett v. Goodill, 71 Wn.2d 654, 656 , 430 P.2d 589 (1967). . . . “[W]e find it difficult to believe that a physician can engage in ex parte conference with the legal adversary of his patient without endangering the trust and faith invested in him by his patient.” Loudon, 110 Wn.2d at 679 (alterations in original) (footnote omitted) (quoting Petrillo v. Syntex Labs., Inc., 148

2010Requiring parties to use formal discovery processes when contacting nonparty treating physicians, we said, would not be *944 overly burdensome because "[d]efendants could still reach relevant medical records; cost and scheduling problems of depositions could be minimized by using depositions pursuant to CR 31; plaintiff's counsel might agree to an informal interview with both counsel present; and the purpose behind the discovery rules—to prevent surprise at trial —was maintained." Holbrook, 118 Wash.2d at 310 , 822 P.2d 271 (citing Loudon, 110 Wash.2d at 680 , 756 P.2d 138 ). ¶ 13 As we have i

2010Requiring parties to use formal discovery processes when contacting nonparty treating physicians, we said, would not be *944 overly burdensome because "[d]efendants could still reach relevant medical records; cost and scheduling problems of depositions could be minimized by using depositions pursuant to CR 31; plaintiff's counsel might agree to an informal interview with both counsel present; and the purpose behind the discovery rules—to prevent surprise at trial —was maintained." Holbrook, 118 Wash.2d at 310 , 822 P.2d 271 (citing Loudon, 110 Wash.2d at 680 , 756 P.2d 138 ). ¶ 13 As we have i

2010The purpose of the physician-patient privilege, set forth in RCW 5.60.060(4), is twofold: (1) to "surround patient-physician communications with a `cloak of confidentiality' to promote proper treatment by facilitating full disclosure of information" and (2) "to protect the patient from embarrassment or scandal which may result from revelation of intimate details of medical treatment." Carson, 123 Wash.2d at 213 , 867 P.2d 610 (quoting Dep't of Soc. & Health Servs. v. Latta, 92 Wash.2d 812, 819 , 601 P.2d 520 (1979)).

2010The purpose of the physician-patient privilege, set forth in RCW 5.60.060(4), is twofold: (1) to "surround patient-physician communications with a `cloak of confidentiality' to promote proper treatment by facilitating full disclosure of information" and (2) "to protect the patient from embarrassment or scandal which may result from revelation of intimate details of medical treatment." Carson, 123 Wash.2d at 213 , 867 P.2d 610 (quoting Dep't of Soc. & Health Servs. v. Latta, 92 Wash.2d 812, 819 , 601 P.2d 520 (1979)).

2010Lumber, Inc., 100 Wash.App. 268, 278-80 , 996 P.2d 1103 (2000) (holding that the mere redaction of certain portions of trial testimony after a Loudon violation was not an effective cure for the violation because it could not cure the inherent prejudice that had already occurred); Ford v. Chaplin, 61 Wash.App. 896 , 812 P.2d 532 (1991) (finding a Loudon violation to be harmless error because the record on appeal did not permit the court to determine whether ex parte contact materially prejudiced plaintiff's case). ¶ 21 Like the Court of Appeals in Smith, we are not inclined to presume prejudice

2010Lumber, Inc., 100 Wash.App. 268, 278-80 , 996 P.2d 1103 (2000) (holding that the mere redaction of certain portions of trial testimony after a Loudon violation was not an effective cure for the violation because it could not cure the inherent prejudice that had already occurred); Ford v. Chaplin, 61 Wash.App. 896 , 812 P.2d 532 (1991) (finding a Loudon violation to be harmless error because the record on appeal did not permit the court to determine whether ex parte contact materially prejudiced plaintiff's case). ¶ 21 Like the Court of Appeals in Smith, we are not inclined to presume prejudice

2016App. 359, 365 , 966 P.2d 921 (1998). 38 110 Wn.2d 675, 675-76 , 756 P.2d 138 (1988). 39 RCW 7.70.020(3). -14- NO. 72858-0-1/15 in private interviews with defense counsel would, for some, have a chilling effect on the physician-patient relationship and hinder further treatment."40 The court has since provided three more justifications: protecting the doctor-patient fiduciary relationship, protecting doctors from potential liability for wrongful disclosures, and avoiding situations where defense counsel would be called to testify as an impeachment witness.41 We reject the City's proposed applica

2016App. 359, 365 , 966 P.2d 921 (1998). 38 110 Wn.2d 675, 675-76 , 756 P.2d 138 (1988). 39 RCW 7.70.020(3). -14- NO. 72858-0-1/15 in private interviews with defense counsel would, for some, have a chilling effect on the physician-patient relationship and hinder further treatment."40 The court has since provided three more justifications: protecting the doctor-patient fiduciary relationship, protecting doctors from potential liability for wrongful disclosures, and avoiding situations where defense counsel would be called to testify as an impeachment witness.41 We reject the City's proposed applica

2014Indeed, our recent decision in Lowy v. PeaceHealth, 174 Wn.2d 769, 778 , 280 P.3d 1078 (2012), underscores that the QI statute is not to be used as a shield to alter the balance of interests of either party in litigation.' ¶47 While the majority recognizes the wisdom and continued vitality of the Loudon rule as against these arguments, it loses its way, in my view, when it posits a clash between the Loudon rule and the attorney-client privilege.

2014Indeed, our recent decision in Lowy v. PeaceHealth, 174 Wn.2d 769, 778 , 280 P.3d 1078 (2012), underscores that the QI statute is not to be used as a shield to alter the balance of interests of either party in litigation.' ¶47 While the majority recognizes the wisdom and continued vitality of the Loudon rule as against these arguments, it loses its way, in my view, when it posits a clash between the Loudon rule and the attorney-client privilege.