Washington Law Review

Comment

A Proposal to Improve Washington's Rules on Ex Parte Contact

December 20, 2019 | 94 Wash. L. Rev. 2057

Abstract:  Privilege doctrines play an important role in allowing clients to confide in their trusted attorneys and doctors. The intersection of two privilege doctrines in medical malpractice litigation—physician-patient privilege and attorney-client privilege—places physicians working at corporate hospitals in a catch-22 of allegiances. On one hand, physicians cannot disclose patient information, whereas on the other, they must assist their employer in defending the case. These concerns are heightened when attorneys seek to communicate with non-party physicians ex parte—that is, unsupervised. In Youngs v. Peacehealth, the Washington State Supreme Court allowed corporate defendants to communicate ex parte with the plaintiff’s treating physician under the veil of attorney-client privilege. The Youngs standard is relatively ambiguous on the scope of acceptable communication, however. This leaves patients at risk of having their privileged information inadvertently disclosed and physicians at risk for accidentally doing so. It also potentially provides unfair litigation advantages to corporate defendants. To help solve these issues, this Comment offers modifications to the Washington State Civil Rules that (1) require parties to conduct a Rule 26(f) discovery conference before engaging in ex parte communications with non-party treating physicians; and (2) require defendants to submit a motion to the Superior Court explaining why the ex parte communications are necessary to their discovery process.

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