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Navigating Ex Parte Contact with Health Care Providers in Medical Malpractice Litigation
In Snyder v. Virginia Mason Medical Center, No. 104136-5 (Wash. Oct. 1, 2026), the Washington Supreme Court held that corporate defense counsel, risk managers, and claims adjusters may not communicate ex parte with a hospital’s former employee health care providers about patient care. The Court reaffirmed Loudon v. Mhyre, 110 Wn.2d 675, 756 P.2d 138 (1988) prohibiting ex parte communication by defense counsel with a plaintiff’s treating physicians, held that prejudice is presumed when Loudon is violated, and ruled that a quality improvement (QI) committee member’s involvement in defense strategy waives the committee’s statutory privilege under Wash. Rev. Code § 70.41.200.
As a result, informal contact with former employee providers should stop, and factual inquiries should proceed through formal discovery under Wash. Super. Ct. Civ. R. 30 or 31. This article explains how Snyder fits within Washington’s patient confidentiality and corporate privilege framework, how it applies to different categories of providers, and what hospitals and their counsel should do now.
Patient Confidentiality vs. Corporate Privilege
To navigate the procedural boundaries governing medical malpractice defense in Washington, practitioners must understand the fundamental statutory tension between a patient’s right to health care confidentiality and an institution's right to confer with corporate counsel. Under Washington's Uniform Health Care Information Act, health care providers and their agents are strictly prohibited from disclosing health information without explicit written authorization, except as otherwise provided by law. Wash. Rev. Code § 70.02.020; State v. Scherf, 192 Wn.2d 350, 387, 431 P.3d 976, 995 (2018); King v. Riveland, 125 Wn.2d 500, 509, 886 P.2d 160, 165 (1994). This privacy right is reinforced by Washington's statutory physician-patient privilege, which protects treating physicians from being compelled to testify regarding medical information acquired while attending a patient. Wash. Rev. Code § 5.60.060(4).
While a patient automatically waives this statutory privilege upon filing a personal injury or medical malpractice lawsuit under Wash. Rev. Code § 5.60.060(4)(b), the Washington Supreme Court has consistently held that this waiver is not absolute. In Loudon v. Mhyre, 110 Wn.2d 675, 678, 756 P.2d 138, 140 (1988), the Court established a bright-line prohibition against defense counsel engaging in private, ex parte communications with a plaintiff’s treating physicians. The Loudon rule safeguards the fiduciary doctor-patient relationship, prevents inadvertent disclosure of irrelevant medical records, and eliminates the risk of turning defense attorneys into potential trial witnesses. Loudon, 110 Wn.2d at 682, 756 P.2d at 142; Smith v. Orthopedics Int'l, Ltd., 170 Wn.2d 659, 666, 244 P.3d 939, 942–43 (2010).
On the corporate side, health care facilities rely on corporate attorney-client privilege to conduct internal risk investigations. Wash. Rev. Code § 5.60.060(2)(a); Upjohn Co. v. United States, 449 U.S. 383, 389, 101 S. Ct. 677, 682, 66 L. Ed. 2d 584 (1981). However, in Newman v. Highland School District No. 203, 186 Wn.2d 769, 381 P.3d 1188 (2016), the Washington Supreme Court established a strict temporal boundary on corporate privilege, holding that privilege does not extend to post-employment communications with former employees:
“The underlying purpose of the corporate attorney-client privilege is to foster full and frank communications between counsel and the client (i.e., the corporation), not its former employees... This purpose is preserved by limiting the scope of the privilege to the duration of the employer-employee relationship.” Newman, 186 Wn.2d at 781, 381 P.3d at 1193 (quoting Restatement (Third) of the Law Governing Lawyers § 73 cmt. e (Am. L. Inst. 2000)).
Evolution of Provider Contact Rules: Current vs. Former Personnel
How does one reconcile corporate attorney-client privilege with the Loudon doctrine? The Supreme Court addressed this conflict in Youngs v. PeaceHealth, 179 Wn.2d 645, 664, 316 P.3d 1035, 1045 (2014), carving out a narrow exception allowing corporate defense counsel to conduct confidential ex parte interviews with a nonparty treating physician who is a current employee of the hospital, provided those communications are limited strictly to the facts surrounding the alleged negligent incident. In Hermanson v. MultiCare Health System, Inc., 196 Wn.2d 578, 581, 475 P.3d 484, 487 (2020), the Court extended this principle to current non-physician staff and current independent contractors who are the functional equivalents of employees.
However, when a treating provider leaves the facility's employ, the legal landscape shifts dramatically across four distinct provider categories:
Current Employee Providers: Fully covered under the Youngs exception. Corporate defense counsel may conduct privileged, ex parte interviews with active employee physicians, nurses, and staff, provided the conversation is confined to the facts of the alleged negligent incident and does not delve into general medical history. Youngs v. PeaceHealth, 179 Wn.2d at 671.
Current Independent Contractors: Covered under Hermanson where an agency or functional equivalent relationship exists. If an independent contractor doctor acts as an agent of the facility, corporate counsel may confer ex parte under the same strict factual constraints of Youngs. Hermanson v. MultiCare Health Sys., Inc., 196 Wn.2d at 589–90.
Former Employee Providers (Including C-Suite Officers & Owners): Governed strictly by Newman and Snyder. The moment a provider separates from employment, it instantly extinguishes corporate attorney-client privilege over ongoing trial preparation. Because former employees no longer owe agency duties, defense counsel cannot conduct ex parte interviews with former staff regarding patient care under any circumstances. Snyder v. Virginia Mason Med. Ctr., slip op. at 28–29.
Quality Improvement (QI) Committee Members: Subject to statutory peer-review immunity under Wash. Rev. Code § 70.41.200(3). While records prepared for QI committees are immune from discovery, committee members must be strictly screened from litigation defense teams. If a QI member participates in active trial strategy or ex parte witness preparation, statutory peer-review privilege is completely forfeited. Snyder, slip op. at 38–39.
The Snyder Decision: Presumed Harm, Privilege Logs, and QI Waiver
In Snyder v. Virginia Mason Medical Center, No. 104136-5, slip op. (Wash. Oct. 1, 2026) (En Banc), the Washington Supreme Court resolved lingering uncertainties by establishing three definitive holdings that fundamentally reshape medical malpractice litigation.
1. Rejection of Defense Exceptions and Affirmance of Loudon
The Supreme Court affirmed that Loudon applies strictly to former employee health care providers, regardless of whether their care forms the primary basis of the hospital's alleged vicarious liability. In doing so, the Court explicitly rejected a series of defense theories:
Representation Agreements & Indemnity Contracts: Private employment contracts requiring former doctors to cooperate in litigation defense cannot override statutory patient privacy rights under Wash. Rev. Code § 70.02.020 or physician-patient privilege under Wash. Rev. Code § 5.60.060(4). Hermanson, 196 Wn.2d at 590 n.1; Snyder, slip op. at 25–26.
Common Interest / Joint Defense Theories: Shared legal exposure does not authorize defense counsel to conduct ex parte trial strategy sessions with former employee providers or their separate attorneys. Smith v. Orthopedics Int'l, Ltd., 170 Wn.2d at 668; Snyder, slip op. at 27–28.
Inapplicability of Youngs: The Court confirmed that the fiduciary doctor-patient relationship survives employment termination, placing former employee providers strictly beyond the reach of the Youngs current-employee exception. Snyder, slip op. at 28–29.
2. Magaña and the Presumption of Prejudice
Crucially, the Supreme Court disavowed its prior decision in Magaña v. Hyundai Motor America, 167 Wn.2d 570, 220 P.3d 191 (2009), which required plaintiffs to prove substantial litigation prejudice to obtain discovery sanctions. Holding that ex parte contacts inherently damage the fiduciary doctor-patient relationship, the Court established that prejudice is presumed upon demonstrating a Loudon violation. Snyder, slip op. at 33–34. To evaluate appropriate sanctions—ranging from monetary fines to entering a default judgment on liability—the Supreme Court extended Cedell v. Farmers Insurance Co. of Washington, 176 Wn.2d 686, 295 P.3d 239 (2013), ordering the trial court to conduct an in-camera inspection of all withheld defense privilege log entries generated during unauthorized ex parte contacts. Snyder, slip op. at 35–36.
3. Subject-Matter Waiver of Quality Improvement Immunity
Under Wash. Rev. Code § 70.41.200(3), hospital Quality Improvement committee proceedings are confidential. However, in Snyder, the Chief Medical Officer sat on the hospital’s statutory QI committee while simultaneously receiving litigation talking points from defense counsel, coordinating witness outreach, and traveling ex parte to meet with a former resident physician. The Supreme Court held that failing to ethically screen a QI committee member from active litigation strategy taints the committee's inner workings, effecting a complete subject-matter waiver of statutory peer-review privilege. Snyder, slip op. at 38–39.
Real-World Realities: Memory Decay, Pre-Litigation Holds, and Sophistication
At the end of the day, modern institutional health care delivery renders determining the exact composition of a patient's treatment team—and whether defense counsel is legally permitted to speak with any given provider—an exercise in pure guesswork. It has long been complicated for patients and health systems to figure out who their doctor is in a complex clinical environment involving rotating resident physicians, attending specialists, hospitalists, and independent contractors. Yet, now no one seems to know who the doctor might not be and whether defense counsel should be speaking to them behind closed doors.
By establishing an unyielding temporal boundary that severs corporate attorney-client privilege the exact moment an employee separates from service, Newman, 186 Wn.2d at 781, and Snyder, slip op. at 20, 28–29, creates an unworkable practical fiction. In effect, this rigid rule generates an absurd practical presumption: that no health care practitioner can ever retire, relocate, or transition employment if any remote possibility of future litigation may ensue.
This jurisprudence fundamentally neglects two operational realities of medical malpractice defense: the necessity of pre-litigation risk investigations and the natural fading of human memory. When an adverse clinical outcome occurs, risk management must investigate immediately to evaluate institutional exposure. While an institution can readily issue electronic litigation holds to preserve health records, paper charts, and audit trails, it is impossible to ask a human witness to hold onto their unrefreshed memories.
While interviewing a witness when a facility first learns of a potential claim is straightforward, months or even years frequently elapse between the medical event, the formal filing of a lawsuit, and the procedural opportunity for defense counsel to deploy formal discovery rules under Wash. Super. Ct. Civ. R. 30 or CR 31. Expecting a treating physician to maintain vivid, detailed recollections of a single procedure performed years earlier—without the benefit of informal factual debriefs with risk management—defies human memory and litigation reality.
Finally, this line of authority improperly presumes a uniform, strict sophistication across all health care facilities. Snyder presumes that every community hospital, rural health clinic, and small practice group maintains the extensive legal infrastructure, ethical screening walls, and specialized claims teams of a major academic medical center. By imposing strict liability sanctions and an automatic presumption of prejudice for ex parte contacts regardless of actual litigation harm (Snyder, slip op. at 33–34), the Court penalizes health care entities for standard risk management inquiries while ignoring the operational realities of modern medical practice.
Specific Application Cases: C-Suite, Mid-Suit Separation, and Dual Roles
A. Former C-Suite Executives, Board Members, and Physician-Owners
A frequent point of defense confusion is whether a physician’s former status as a C-suite executive (e.g., Chief Medical Officer), board member, or equity owner exempts them from Loudon. Under Washington law, the extent of corporate privilege coverage depends entirely upon temporal status and the subject matter of the communication. This includes:
Pre-Separation Corporate Governance Communications (COVERED): Confidential communications made during active executive, board, or ownership tenure regarding hospital administration, risk management, or general business operations remain protected by the entity's attorney-client privilege under Upjohn Co. v. United States, 449 U.S. 383, 391 (1981) and Wash. Rev. Code § 5.60.060(2)(a).
Post-Separation Patient Care Communications (NOT COVERED): Once employment, board tenure, or equity ownership severs, corporate attorney-client privilege terminates. Newman, 186 Wn.2d at 781. Reaffirming Newman, the Supreme Court in Snyder, slip op. at 20, 28–29 held that former executive or ownership status creates no exception to Loudon. Because former C-suite physicians and owners no longer possess agency authority or ongoing duties of loyalty to the entity, defense counsel cannot engage in post-separation ex parte trial preparation regarding patient care provided by that physician.
B. Mid-Litigation Employment Termination
If a treating physician’s employment terminates during active medical malpractice litigation, corporate attorney-client privilege over ongoing trial preparation instantly evaporates at the moment of separation. Under Newman and Snyder, corporate defense counsel is strictly barred from conducting further ex parte strategy sessions with the departing physician, practically necessitating separate independent counsel for the physician to prevent per se Loudon violations and concurrent conflicts under Rule of Professional Conduct 1.7.
C. Dual-Roled Physicians and Corporate PMK Designees
Quality Improvement (QI) committee members represent one of the most perilous legal landmines for health care facilities under Snyder, slip op. at 38–39. Health care facilities face an inherent dilemma: the individuals best situated to serve as key corporate contacts or Person Most Knowledgeable (PMK) designees under Wash. Super. Ct. Civ. R. 30(b)(6)—such as CMOs or Medical Directors—are almost universally the exact same clinical leaders who sit on statutory QI committees.
When a lawsuit emerges, institutions routinely rely on senior officers to investigate the incident and coordinate witness outreach. However, under Snyder, combining statutory peer-review functions with litigation defense strategy destroys the statutory privilege protecting the facility's Quality Improvement proceedings. To protect peer-review immunity, institutions ought to consider implementing proactive, pre-litigation organizational role separation: structurally dividing clinical governance so that high-level physicians on QI committees are permanently barred from acting as litigation claims liaisons or CR 30(b)(6) designees.
Practical Compliance
To navigate the strict mandates of Snyder and protect case integrity, corporate defense counsel and health care risk managers must adopt three mandatory practice protocols:
Conduct Factual Discovery Exclusively Through Formal Court Rules. Defense counsel must refrain from informal telephone calls, debriefs, or “support visits” with former employee providers. All factual inquiries must occur through formal oral depositions under Wash. Super. Ct. Civ. R. 30 or written depositions under Wash. Super. Ct. Civ. R. 31 upon formal notice to plaintiff's counsel.
Strictly Prohibit Using Separate Counsel as a Conduit. If an insurer assigns separate independent counsel to represent a former employee provider under continuing indemnification duties, primary corporate counsel cannot pass trial briefs, expert reports, or strategy talking points ex parte to separate counsel. Smith v. Orthopedics Int'l, Ltd., 170 Wn.2d at 668; Snyder, slip op. at 27–28.
Establish Proactive Pre-Litigation QI Ethical Walls. Health care facilities must structurally divide clinical governance so that high-level physicians who serve on statutory Quality Improvement peer-review committees are permanently barred from acting as corporate claims liaisons, risk defense managers, or corporate Person Most Knowledgeable (PMK) designees under CR 30(b)(6). Proactive ethical screening is essential to prevent subject-matter waiver of statutory peer-review immunity under Wash. Rev. Code § 70.41.200.
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