The Washington Supreme Court issued a 6-3 decision on Thursday determining that Virginia Mason Medical Center breached state patient protection statutes by engaging in private discussions with three former physicians involved in a specific surgical procedure. The justices ordered a King County Superior Court trial judge to reassess the appropriate remedy for these unauthorized contacts, which took place without the knowledge or consent of the injured patient.
The majority opinion, authored by Justice Steven C. González, established that a patient is not required to demonstrate that improper communications impaired their ability to litigate before a court can grant relief. The court held that harm to the doctor-patient relationship is presumed when the rule prohibiting such contacts is violated. Additionally, the ruling mandates further review of documents the hospital previously withheld and concludes that Virginia Mason partially waived legal protections for its quality improvement materials.
The case does not determine whether the hospital was liable for malpractice, nor does it grant the plaintiff’s request for a default judgment on liability. Instead, the matter has been remanded to the Superior Court for continued proceedings, including a reevaluation of that specific request.
The underlying incident occurred in January 2018, when a local patient sustained permanent and disabling injuries during surgery at Virginia Mason. According to court records, two medical residents were responsible for threading a needle and wire through the patient’s jugular vein to insert a catheter. The tip of the line apparently penetrated an artery and entered the chest. The lead surgeon subsequently called a vascular surgeon for assistance. After attempts to locate the line’s tip using contrast dye and imaging failed, the vascular surgeon suggested slowly withdrawing the line. This action resulted in a massive hemorrhage and a prolonged cardiac arrest, from which the medical team successfully resuscitated the patient.
The patient filed a lawsuit in March 2019. The two residents and the vascular surgeon were not named as defendants in the complaint and had already departed from Virginia Mason by that time. However, the hospital remained contractually obligated to defend them and cover any potential liability for the injuries. Consequently, the hospital arranged for separate legal representation for the three physicians.
The majority opinion detailed communications that occurred during the initial years of litigation between the hospital’s legal team, risk managers, a third-party claims administrator, and the doctors’ attorney, all of which the plaintiff was unaware of. In an April 2020 witness disclosure, Virginia Mason stated that the patient’s attorney could contact the providers, while defense counsel could not. Justice González described this statement as "at least misleading," noting that the hospital’s legal team had been actively communicating with the doctors’ lawyer directly and through the claims administrator. Shortly before that disclosure, a hospital risk manager reportedly spoke with the vascular surgeon for one hour, telling him he was essential to case preparation, according to the opinion.
A privilege log identified more than 400 instances of communication that potentially violated the patient’s rights. The legal dispute centers on Washington’s "Loudon rule," derived from a 1988 Supreme Court decision. In personal injury cases, this rule generally mandates that defense attorneys use formal discovery procedures or obtain the patient’s consent before privately communicating with treating doctors who are not parties to the lawsuit.
Court Limits Hospital’s Privileged Communications with Former Staff
A state Supreme Court ruling has clarified the scope of a hospital’s ability to communicate with former employees about incidents giving rise to malpractice claims, drawing a distinction between current and past staff in terms of privilege protection.
The court acknowledged a well-established exception allowing hospitals to engage in confidential discussions with current employees—or their functional equivalents—regarding the facts surrounding alleged negligence. However, in a decision released this week, the majority declined to extend that exception to former staff members involved in the care at issue, specifically in the case brought by plaintiff David Snyder against Virginia Mason.
Virginia Mason had urged the court to adopt a broader approach, arguing that physicians whose conduct could expose the hospital to liability—particularly those still under contractual obligations—ought to be included within the privileged communications framework. The hospital emphasized its shared legal interests with these doctors and the importance of safeguarding attorney-client protections in collaborative defense efforts.
The court, however, found the hospital’s position insufficiently supported. According to the majority, Virginia Mason failed to demonstrate a clear, mutual understanding of confidentiality or a concrete basis for asserting a common legal interest with the former physicians.
The ruling noted that the hospital retains alternative avenues to consult with these individuals, including formal discovery procedures or direct outreach with the plaintiff’s agreement and involvement.
Snyder had contended that the hospital’s outreach to former staff subtly but significantly shaped witness perspectives, prompting him to seek a default judgment assigning liability as a remedy. The trial judge declined that request, citing incomplete evidence on whether Snyder had suffered concrete prejudice from the communications.
On appeal, the Supreme Court determined that the violation itself gives rise to presumed harm, leaving the trial court broad discretion to tailor an appropriate remedy based on the extent of that harm. Possible outcomes include financial sanctions or, in more severe instances, a ruling on liability in the plaintiff’s favor.
The case now returns to the trial court for a fresh evaluation, with instructions to examine all relevant documentation—including materials reviewed in private judicial sessions—to assess the hospital’s claims of privilege.
A separate component of the decision focuses on Virginia Mason’s quality improvement committee, which conducted an internal review of Snyder’s surgical care. State law shields certain committee-generated materials from civil litigation to promote honest, open assessments of clinical outcomes without fear of legal exposure.
Dr. Michael Glenn, then the hospital’s chief medical officer and a committee member, traveled to Prosser in December 2019 to meet with Chew, a former employee involved in Snyder’s care. While Virginia Mason’s defense team coordinated the meeting and supplied proposed talking points, Glenn later testified he did not review written guidance and did not discuss the surgery or pending litigation during the session.
Despite that, the majority concluded Glenn’s participation introduced litigation-related considerations into the committee’s deliberations, thereby compromising the integrity of its quality improvement process. As a result, records reflecting his role as a litigation participant and conversations with former staff could no longer rely on the statutory privilege meant to protect internal peer review.
Justice Sheryl Gordon McCloud authored the dissent, joined by Justice G. Helen Whitener and Justice Pro Tempore Barbara A. Madsen. She argued the majority’s interpretation of precedent—particularly *Loudon*—imposed unwarranted constraints on hospitals’ capacity to investigate and respond to claims stemming from former physicians’ care. Gordon McCloud also disputed the finding that Virginia Mason had waived the statutory shield protecting quality improvement materials.
With Virginia Mason now the sole remaining defendant, the trial court will determine the appropriate remedy for the improper communications identified in the appeal.
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