The Washington Supreme Court has handed down a major decision that creates challenges for hospital-defendants in medical malpractice cases.
In Youngs v. PeaceHealth, Marc Youngs, the plaintiff, was admitted to Bellingham, Wash.-based
Subsequently, Mr. Youngs filed a medical malpractice suit against PeaceHealth alleging its facility was negligent in his postoperative care. Although he did not name them as defendants, Mr. Youngs referred to Richard Leone, MD, and Donald Berry, MD, in his complaint as the physicians whose conduct gave rise to the lawsuit.
During litigation, Mr. Youngs filed a motion asking the trial court to apply the Loudon rule, which generally prohibits any defendant's attorney — in this case the hospital's attorney — from communicating with a patient-plaintiff's treating physician about the care provided to the patient when the plaintiff's attorney is not present.
The trial court ultimately did not apply the Loudon rule and held PeaceHealth was allowed to have communications with physicians who treated Mr. Youngs without plaintiff's counsel being present. Subsequently, Mr. Youngs appealed the ruling, which made it to the Washington Supreme Court.
After hearing the issue, the Washington Supreme Court went against the appellate court's ruling and applied the Loudon rule. The Supreme Court held the privilege that exists between a patient and his or her physician trumps the attorney-client privilege, except in very limited circumstances.
The court ruled the hospital's attorney could only communicate with the hospital's physicians outside the presence of the plaintiff's attorney if the physician had direct knowledge of the events that led to the malpractice lawsuit and the communication concerned only the facts alleged in the plaintiff's lawsuit.
"Under this ruling, a hospital sued for malpractice cannot have its attorney interview its own employee-physicians without plaintiff's counsel being present," says Todd Presnell, a partner with Nashville, Tenn.-based Bradley Arant Boult Cummings, who studies attorney-client privilege issues.
This ruling restricts defense lawyers' investigation efforts by precluding their ability to conduct privileged conversations, and that limits the lawyer's ability to perform "early case assessments and formulate legal strategy," says Mr. Presnell. The Washington Supreme Court's decision in this case "will certainly influence how other states confront this battle-of-the privileges issue," he says.
There are unanswered questions regarding the issues in the case because the decision did not provide an analysis of the at-issue waiver doctrine that holds patients waive their physician-patient privilege when they put their health at issue in a lawsuit, says Mr. Presnell.
Given the court's decision in this case, he advises hospitals to provide training programs to their employed physicians to educate them on the new parameters of discussing patient-plaintiffs' medical conditions with hospital attorneys.
More Articles on Healthcare Lawsuits:
King's Daughters Medical Center to Pay Nearly $41M in Landmark Case
Supreme Court Turns Away Suit Against Mercy Health Over Employee Facebook Posts
Class-Action Lawsuit Filed Against UnitedHealthcare For Alleged Mental Health Law Violation