Time certainly flies by, as it has now been 21 years since Loudon
v. Mhyre, 110 Wn.2d 675 (1988), was decided. In this landmark case,
the Washington Supreme Court held that despite waiver of the
physician-patient privilege, ex parte contact between defense counsel
and the plaintiff’s treating physicians is prohibited. But as shown by
Smith v. Orthopedics Int’l, Ltd., PS, 149 Wn. App. 337 (2009), a
Loudon violation doesn’t arise from every unauthorized
communication.
On New Year’s Eve in 2003, Brenda Smith underwent extensive surgery
to reconstruct her spinal column. The 9½-hour procedure was performed by
Dr. Paul Schwaegler, an orthopedic surgeon affiliated with Orthopedics
International Limited, PS in Seattle.
Tragically, Brenda’s postoperative recovery was beset by
complications. Two days after her surgery, a blood clot was removed from
her aorta by Dr. Kaj Johansen, a vascular surgeon. Brenda later
underwent multiple other surgeries, including amputation of the left
leg, and eventually contracted methicillin resistant Staphylococcus
aureus (MRSA), a deadly infection that ultimately took her life in March
2005.
Thereafter, Jerry Smith, Brenda’s husband and the personal
representative of her estate, filed a medical malpractice, wrongful
death and survival action in King County Superior Court against Dr. Schwaegler
and his employer. The gravamen of the complaint? That the surgeon had
acted negligently in the course of Brenda’s lengthy postoperative care.
Though Dr. Johansen had likewise attended to Brenda during her prolonged
complications, he was not a named defendant in the suit.
During pretrial discovery, plaintiff’s counsel deposed Dr. Johansen,
who apparently declined to meet informally. (This often occurs in
medical malpractice cases because treating physicians, among other
things, don’t want to be accused of “fraternizing with the enemy,”
especially when they remain a potential defendant.) Either before or
after the deposition, Dr. Johansen was identified by the defense as a
potential nonparty fact witness.
Shortly before the case went to trial in November 2007, a paralegal
for the defense sent an e-mail to Dr. Johansen’s attorney, Rebecca
Ringer, which attached the plaintiff’s trial brief and asked her to
forward it to her client. A week into the trial, the defense sent
another e-mail to Ringer, this time attaching the trial testimony from
the plaintiff’s vascular expert accompanied by the same request. And the
very next day, the defense sent Ringer an outline of proposed questions
for Dr. Johansen’s direct examination. None of these communications took
place with the plaintiff’s prior knowledge or consent.
After learning about this ex parte contact for the first time during
Dr. Johansen’s trial testimony, Smith’s counsel moved to strike his
testimony and for a mistrial.
Following a hearing, the trial court denied the plaintiff’s motion,
finding there was no Loudon violation, no attorney misconduct,
and no prejudice to Smith. For one thing, said the court, there was no
evidence Dr. Johansen had ever received the outline of proposed
questions. Instead, the court said Smith could recall the doctor and
cross-examine him to determine exactly what documents he had received.
Although Smith declined this offer, the court later instructed the jury
that documents had been given to Dr. Johansen without the plaintiff’s
knowledge.
After a two and one-half week trial, the jury returned a defense
verdict. In the ensuing appeal, Smith argued that Dr. Johansen’s
testimony should’ve been stricken (or a mistrial declared) because ex
parte contacts with a treating physician are barred under Loudon.
As later characterized by the Washington Court of Appeals (Division
One), the plaintiff essentially contended that Loudon
“established a bright line rule prohibiting all contact and deeming any
prohibited contact prejudicial per se.”
To save any suspense, by a 3-0 tally, the judgment was recently
affirmed by the Court of Appeals.
First of all, Division One disagreed that Loudon, which
likewise involved a wrongful death action, had established a bright line
rule. In Loudon, our high court held that prehearing
communications between defense counsel and the plaintiff’s treating
doctors should be barred given the “potential risk” that privileged
information regarding an irrelevant medical condition may be
inadvertently disclosed. But according to Division One, no such danger
existed in Smith’s case:
After Loudon, counsel may not interview a plaintiff’s
nonparty treating physician but must instead utilize the statutorily
recognized methods of discovery as set forth in the civil rules.
Essentially, that is what occurred here. Dr. Johansen was deposed
and his testimony at trial tracked the information obtained during
that deposition. Without more, the transmittal of public documents
to a fact witness who is also a treating physician does not fall
within the ambit of Loudon. Indeed, given the public nature
of the documents, excluding the notes, we do not see how it can be.
149 Wn. App. at 342.
The Court of Appeals also disagreed with Smith’s assessment that the
Ringer e-mails amounted to “multiple ex parte contacts”:
Such a characterization is misleading. The posttrial exhibits
clearly indicate that the series of three or four e-mails were
transmitted only to Dr. Johansen’s attorney. In argument to the
court, defense counsel stated they were doing nothing more than
keeping Ringer apprised of the testimony and questioning as her
client was technically at risk of being sued himself. While the
better course of conduct would have been to copy opposing counsel on
the e-mails, the transmission of the documents does not
constitute a Loudon violation. Furthermore, there is no
evidence in the record before us that Dr. Johansen ever received a
copy of an outline of defense counsel’s proposed questions. Asking
Dr. Johansen’s attorney to have him review the plaintiff’s trial
brief and the expert’s testimony is not comparable to a Loudon
violation.
Id. at 343 (my emphasis).
To support his argument, Smith had cited cases imposing a bright line
rule from other jurisdictions, including McCool v. Gehret, 657
A.2d 269 (Del. 1995). In that case, the defendant doctor went so far as
to ask a third party to contact a treating physician to dissuade him
from testifying. But McCool was “inapposite,” said Division One,
because “[n]o such malicious intent was shown here.”
The Court of Appeals also discussed its prior decision in Ford v.
Chaplin, 61 Wn. App. 896 (1991), holding that even if a Loudon
violation occurs, a new trial isn’t necessary unless the contact results
in “material prejudice to the plaintiff’s case.” Even assuming Smith had
proven a “technical” Loudon violation, said the court, he had
failed to show any prejudice:
There was no surprise in Dr. Johansen’s testimony. Smith’s
counsel argues that the questions posed to Dr. Johansen required
multiple objections from them, thus permitting the jury to infer
that Smith was trying to hide exculpatory evidence. The trial court
found no prejudice. Furthermore, Dr. Johansen’s testimony paralleled
his deposition and thus the receipt of this information did not
“influence” his testimony.
Id.
Division One concluded its opinion by stating that Smith “ha[d]
failed to make any compelling argument for reversal.” But although I may
not be wearing a black robe, I would respectfully dissent.
First of all, whether the ex parte contact directly involved the
treating physician or his legal representative should be neither here
nor there. Does the Court of Appeals really believe Dr. Johansen never
discussed the outline of proposed questions with his attorney because he
“never received” them from her?
More importantly, the Court of Appeals construes Loudon much
too narrowly. In its unanimous opinion, the Loudon court observed
that the physician-patient relationship is “a fiduciary one of the
highest degree…involv[ing] every element of trust, confidence and good
faith.” 110 Wn.2d at 675. The court then continued:
This close confidential relationship is recognized by the
Hippocratic Oath and in the ethical guidelines of the American
Medical Association. “[W]e find it difficult to believe that a
physician can engage in an ex parte conference with the legal
adversary of his patient without endangering the trust and faith
invested in him by his patient.” [Citation omitted.] The presence of
plaintiff’s counsel as the protector of a patient’s confidences will
allay the fear that irrelevant confidential material will be
disclosed and preserve the fiduciary trust relationship between
physician and patient.
Id. (my emphasis).
In short, avoiding the inadvertent disclosure of irrelevant
confidential material was only part of the rationale for the holding in
Loudon. Moreover, the Loudon court nowhere said the ban on
ex parte contacts ends if and when the treating physician is deposed by
either party. Thus, even after Dr. Johansen was deposed, why couldn’t
Smith and his counsel rightfully assume he wouldn’t participate in any
unauthorized communications with the defense? Instead, they learned
halfway through a complex medical malpractice trial that Dr. Johansen,
through his attorney, had had multiple contacts with the defense. Isn’t
this last-minute surprise one of the harms Loudon was designed to
avoid?
I also think Division One wrongly emphasized the substance of the ex
parte communications (only “public documents”), the mental state of
defense counsel (no “malicious intent”), and the alleged impact of the
contacts (Dr. Johansen’s testimony not influenced). Isn’t the real
bottom line the fact that defense counsel had unauthorized contacts with
one of the decedent’s treating physicians? While these considerations
might be relevant to the existence of “material prejudice,” don’t they
in fact illustrate why a bright line “prejudicial per se” rule would be
preferred? After all, if defense counsel know they can later defend
their conduct by focusing on what they sent, why they sent it, and the
alleged impact of what they sent, they will have much less incentive to
abide by Loudon. If a “prejudicial per se” rule were adopted,
such mischief would not be invited – and the burden of proving that the
Loudon violation had no impact would not shift to the blameless
plaintiff.
