Snyder v. Virginia Mason Med. Ctr.

FILE THIS OPINION WAS FILED FOR RECORD AT 8 A.M. ON OCTOBER 1, 2026 IN CLERK’S OFFICE SUPREME COURT, STATE OF WASHINGTON SARAH R. PENDLETON SUPREME COURT CLERK OCTOBER 1, 2026 IN THE SUPREME COURT OF THE STATE OF WASHINGTON ) MICHAEL K. SNYDER, ) No. 104136-5 individually, ) ) Petitioner/Cross-Respondent, ) ) v. ) En Banc ) VIRGINIA MASON MEDICAL ) CENTER, ) ) Respondent/Cross-Petitioner, ) ) Filed: October 1, 2026 JARED BRANDENBERGER, M.D. ) and JOHN and JANE DOE ) PHYSICIANS, UNKNOWN ) JOHN and JANE DOE NURSES, ) ) Defendants. ) _______________________________) GONZÁLEZ, J.— Decades ago, in Loudon, this court established a mechanism to protect two values our society holds dear: first, a doctor’s long-standing obligation to protect their patients’ confidentiality, and second, a defendant’s right to investigate claims against them. See Loudon v. Mhyre, 110 Wn.2d 675, 756 P.2d 138 (1988). Loudon establishes that defendants in personal injury cases must use Snyder v. Virginia Mason, No. 104136-5 formal discovery rules to communicate with a plaintiff’s nonparty doctors, essentially meaning such communications must be done with the plaintiff’s knowledge and, in some circumstances, consent. We have recognized one exception to Loudon. When the defendant is a corporation, corporate counsel may have privileged conversations with the corporation’s current employees (and individuals who are the functional equivalents of current employees), including the plaintiff’s nonparty doctors, without going through the formal discovery process. Conversations regarding care provided to the plaintiff are limited to the facts that gave rise to the claim. In this case, Michael Snyder suffered a catastrophic injury during an operation at Virgina Mason Medical Center (Virginia Mason). He sued Virginia Mason and the lead surgeon. Virginia Mason’s investigation identified three nonparty doctors who participated in the surgery and who may have contributed to Snyder’s injuries. These three doctors no longer work at Virginia Mason, but Virginia Mason is contractually obligated to defend and indemnify them in this case. Virginia Mason communicated with those doctors without going through the formal discovery process and without Snyder’s knowledge or consent. In addition, Virginia Mason’s chief medical officer (who was also a member of the hospital’s 2 Snyder v. Virginia Mason, No. 104136-5 quality improvement committee) traveled across the state to speak with one of the doctors about this case. Virginia Mason contends that its communications with those three doctors was not improper because, in its view, it is allowed to have privileged, ex parte communication with Snyder’s nonparty doctors without his knowledge or consent under a variety of theories. We affirm the courts below that it is not. Snyder contends that Virginia Mason’s failure to screen a member of its quality improvement committee from this litigation precludes the hospital from asserting the statutory privilege established by RCW 70.41.200. We conclude that Virginia Mason at least partially waived the statutory privilege under these facts. We vacate the trial court’s denial of Snyder’s motion to compel production of such materials and remand for further proceedings, including in camera review where necessary. Snyder also contends that he is entitled to default judgment on liability as a remedy because Virginia Mason’s secret communications with his three doctors has so tainted critical evidence that he has been denied a fair trial. We conclude that Snyder is not required to demonstrate litigation prejudice in order to receive remedies for Virginia Mason’s Loudon violation, as the violation is not simply a discovery violation. The violation itself is prejudicial, though a trial court exercises discretion to determine an appropriate remedy based on the extent of 3 Snyder v. Virginia Mason, No. 104136-5 prejudice shown, which may include consideration of the Loudon violation’s impact on the litigation. We vacate the trial court’s denial of Snyder’s motion for default judgment and remand for reconsideration. The trial court’s determination of an appropriate remedy should be based on a full review of records identified in relation to the Loudon violation, including in camera review where necessary to assess Virginia Mason’s claims of privilege. Accordingly, we affirm the courts below in part and remand this case to the trial court for further proceedings consistent with this opinion. BACKGROUND Snyder had major surgery at Virginia Mason in January 2018. Dr. Jared Brandenberger was the lead surgeon. Two residents, Drs. Molly Downey and Weslee Chew, were responsible for threading a needle and wire through Snyder’s jugular vein as part of placing a catheter. At some point, it appears that the tip of that line passed through an artery and into Snyder’s chest. When Dr. Brandenberger realized that the tip of the line was not where it was supposed to be, he called Dr. Nathan Aranson, a vascular surgeon, to assist. Initially, Dr. Aranson suggested that the surgical team inject a contrast dye while taking imaging to determine the exact location of the tip. When that failed, he suggested the surgeons slowly withdraw the catheter line. 4 Snyder v. Virginia Mason, No. 104136-5 Almost immediately, Snyder began to bleed heavily. Snyder suffered a massive hemorrhage in his chest and a prolonged cardiac arrest, among other things. The medical team was able to save Snyder’s life, but Snyder was left with permanent, disabling injuries. Snyder sued Virginia Mason and Dr. Brandenberger, and John and Jane Doe physicians and nurses, in March 2019. Snyder did not name Drs. Chew, Downey, and Aranson as defendants, and at the time he filed this case, it appears Snyder had no reason to believe any of them might have contributed to his injuries. Not long after Snyder filed his lawsuit, Virginia Mason’s counsel determined that Drs. Downey, Chew, and Aranson were involved in the care that gave rise to this lawsuit. None of these doctors still worked at Virginia Mason, but Virginia Mason is still responsible for providing them with a defense and covering any liability they may have for Snyder’s injuries. Virginia Mason arranged for these three doctors to be represented by separate counsel, Jennifer Oetter. Virginia Mason’s legal defense team and its three former doctors also worked with the same risk managers and third-party claims administrators at Western Litigation. 1 1 Western Litigation is not a party to this case but has worked closely with Virginia Mason and has been subject to court orders regarding its communications with the nonparty doctors and Virginia Mason. See, e.g., Clerk’s Papers at 1218 (Ord. Granting Pl.’s Mot. to Compel Compliance with Subpoena Duces Tecum and to Find W. Litig., a Div. of Gallagher Bassett, in Contempt). 5 Snyder v. Virginia Mason, No. 104136-5 Virginia Mason’s chief medical officer, Dr. Michael Glenn, traveled across the state in December 2019 to talk with Dr. Chew and assure him that Virginia Mason supported him with regard to Snyder’s surgery. Dr. Glenn also served on Virginia Mason’s quality oversight committee and had learned about Snyder’s suit through someone on Virginia Mason’s legal team. Virginia Mason’s defense team worked with Dr. Glenn in coordinating the trip and provided him with talking points for that conversation. Dr. Glenn later testified in a deposition that he had not discussed the surgery or the litigation details with Dr. Chew at that meeting and had not received talking points in writing. The separate counsel Virginia Mason had retained to represent the three nonparty doctors, Oetter, was present for the meeting and had discussed traveling there with Dr. Glenn. After the two doctors spoke, Oetter met with Dr. Chew for about an hour, followed by another discussion between the two doctors. Snyder’s attorney learned that Drs. Chew and Downey placed the catheter that may have caused Snyder’s injuries months later, in February 2020. Two months later, Virginia Mason included Drs. Chew and Downey in a witness disclosure of over 100 potential witnesses without explaining their roles in the surgery. In that witness disclosure, Virginia Mason stated that “[t]he identity of those persons and the relevant knowledge they may possess is more readily available to 6 Snyder v. Virginia Mason, No. 104136-5 plaintiff’s counsel than defense counsel because plaintiff knows the involvement those providers have had, and plaintiff’s counsel can contact those providers while defense counsel cannot.” CP at 1669. This statement was, at least, misleading. By the time it made that statement in April 2020, Virginia Mason’s legal team had been in active communication with the three doctors’ lawyer concerning Snyder’s case, both directly and through Western Litigation. For example, shortly before Virgina Mason told Snyder it could not contact his former doctors, Virginia Mason’s risk manager had an hour conversation with Dr. Aranson and had informed him that he was “essential in prepping the case.” CP at 1662-63. Virginia Mason’s risk manager discussed her conversation with Dr. Aranson in an e-mail string with Oetter. A privilege log listed more than 400 separate instances of communication that potentially violated Snyder’s right to have his attorney present during communications with his nonparty doctors. Snyder did not know about these ongoing communications for the first few years of litigation. Then, in early 2021, two of Snyder’s experts, Drs. John Moriarty and Shawn Tsuda, were deposed by the defense. Both experts suggested that the three nonparty doctors might have been negligent. Dr. Tsuda stated that allowing residents to participate in the surgery was unreasonable given its high risk. Dr. 7 Snyder v. Virginia Mason, No. 104136-5 Moriarty was critical of Dr. Chew’s placement of the catheter line. Dr. Tsuda also suggested that Dr. Aranson’s advice might have been negligent, though Dr. Tsuda was careful to say he was not a vascular specialist and was not offering a direct opinion on that point. Dr. Moriarty was also critical of Dr. Aranson’s decision to withdraw the line. Not long afterward, Oetter asked Snyder’s counsel for transcripts of any expert depositions where Dr. Aranson was discussed. When Snyder’s counsel declined, Oetter obtained the transcripts from Western Litigation. Dr. Aranson moved to intervene in the case and be represented by separate counsel. Dr. Aranson’s motion referred to Dr. Tsuda’s deposition and attached transcripts of that deposition. Dr. Aranson contended that he should be allowed to intervene because he might be found negligent, such a finding could affect him professionally, and his interests, he believed, could not be adequately represented by the existing parties. Virginia Mason supported his motion on several grounds, including that their interests might conflict and, again, that it “did not have access” to Dr. Aranson, despite the fact it appears its agents had been in close communication with his 8 Snyder v. Virginia Mason, No. 104136-5 attorney. CP at 4427. Over Snyder’s objection, Dr. Aranson was allowed to intervene.2 Meanwhile, Snyder sought Virginia Mason’s communications with Dr. Aranson, among other things related to Virginia Mason’s communications with nonparty doctors. Virginia Mason responded by moving for a protective order. Virginia Mason argued that its communications with the nonparty doctors was privileged and not limited by Loudon.3 The trial court expressed surprise, observing that “it’s not clear to me how a communication which is disallowed by law would be protected under the cloak of privilege.” The court went on to say: So to summarize, I don’t understand what the privilege is. I don’t understand why it’s being raised now for the first time. And from my vantage point, which, in a moment I’m going to stop talking so you can correct me, there seems to be a pretty major ethical violation here—I don’t say that lightly—that it would be wiser for everyone to just acknowledge and address rather than creating smokescreens around it that aren’t particularly compelling. .... 2 Later, the trial court dismissed Dr. Aranson as a defendant based on the statute of limitations, while allowing Snyder to argue that Virginia Mason was vicariously liable for any negligence on Dr. Aranson’s part. Dr. Brandenberger was also dismissed as a defendant on the plaintiff’s motion. Virginia Mason is the sole remaining defendant. 3 Virginia Mason also argued that Snyder had waived any objection to ex parte contact between the defendant hospital and Dr. Aranson by waiving any objection to Virginia Mason’s attorney representing Dr. Aranson after Dr. Aranson moved to intervene. These arguments are not before us. 9 Snyder v. Virginia Mason, No. 104136-5 That said, I will say to the defense, and I say this with a heavy heart and I do not say it lightly, there is some pretty considerable trust lost at this point between you collectively and me. The communications here it seems to me were per se a violation of Washington state law conducted by people who frankly know that law about 20 times better than I do and who are statewide experts on that law. So we have a pretty huge problem here, the extent of it is not yet known to me. The way to fix it is not yet understood by me, but the gravity of the situation I think cannot be understated. CP at 2378, 2380. The trial court directed the defense to produce communications between Virginia Mason’s defense counsel and nonparty health care providers for review by a special master.4 Virginia Mason produced hundreds of responsive documents and thousands of pages for the special master’s review. The special master identified 30 documents that they believed should be disclosed, which, over Virginia Mason’s strong objection, the trial court ordered. Dissatisfied with the limited document disclosure, Snyder moved the court to direct the special master to produce all of the documents for the trial court’s review. Before ruling, the judge directed Virginia Mason to produce a privilege log of all documents provided to the special master, as well as any correspondence with that special master, for in camera review. That privilege log described 467 documents. 4 The trial court did not require Virginia Mason to disclose communications with Dr. Aranson after the time he moved to intervene. 10 Snyder v. Virginia Mason, No. 104136-5 Much earlier in the lawsuit, Snyder had asked Virginia Mason if it had investigated the accident, for the names of anyone involved in such an investigation, and to identify material related to any such investigation. Originally, Virginia Mason acknowledged that its quality improvement program had investigated the accident but declined to give details, invoking RCW 70.41.200. This statute makes information and documents created for and collected and maintained by quality improvement committees exempt from discovery. In November 2021, Virginia Mason supplemented its answer to acknowledge that among others, Dr. Glenn, who had traveled to Prosser to meet with Dr. Chew in relation to the lawsuit, had been part of that quality improvement investigation. Snyder moved for production of Virginia Mason’s relevant quality improvement documents in February 2022. That motion was denied. A month later, Virginia Mason’s risk manager submitted a declaration saying that “[o]utside of the quality improvement process, [Virginia Mason] has never conducted an ex parte interview with Drs. Chew, Downey, or Aranson regarding any care they provided to Plaintiff.” CP at 3972 (italics omitted). Meanwhile, in January 2022, Virginia Mason moved for leave to have ex parte communication with the three doctors. It contended that Loudon should not apply to situations where the nonparty doctor provided the allegedly negligent care. Virginia Mason also argued that it should be able to share privileged ex parte 11 Snyder v. Virginia Mason, No. 104136-5 communications with its three former employees under the common interest doctrine. The trial court denied the motion on the grounds that the issue had already been extensively litigated, and Virginia Mason had offered no new law or facts. Virginia Mason sought discretionary review of the trial court’s ruling directing it to produce documents, directing a CR 26(i) conference, and reserving ruling on the plaintiff’s motion to direct the special master to produce documents. 5 Later, Virginia Mason moved for discretionary review of whether it was allowed to have ex parte contact with former employees whose care may have given rise to liability and whether counsel was permitted to invoke the common interest privilege. Virginia Mason argued that Loudon did not apply to doctors whose conduct may give rise to the hospital’s liability. Virginia Mason also argued that review was necessary because without it, it was “forced to defend this case through verdict without access to those very providers whose care is alleged to form the basis of vicarious liability against it.” Mot. for Discr. Rev. at 31. (Wash. Ct. App. No. 83526-2-I (2022)). While that motion was pending, Snyder moved for production of the documents provided to the special master and quality assurance documents. After 5 Virginia Mason did not seek this court’s review of these issues. 12 Snyder v. Virginia Mason, No. 104136-5 those motions were denied, Snyder moved for a default judgment on liability. Snyder contended that Virginia Mason was “secretly educating, preparing and coaching . . . critical fact witnesses, directly and through third parties,” as well as willfully violating Loudon. CP at 3656. Snyder stressed that Virginia Mason represented it was unable to contact his nonparty doctors while actively doing so. He argued that Virginia Mason “secretly provided strategy, litigation information and coaches to [Drs. Chew, Downey, and Aranson] for months, to shape and influence their testimony for deposition and trial” and that their testimony was irremediably spoiled. CP at 3657-59. “Because that evidence is ‘spoiled and lost forever’ due to the improper actions of [Virginia Mason],” he contends, default judgment is the only remedy. CP at 3659. The trial court found Virginia Mason had violated Loudon. The court denied the motion for default judgment on the grounds that the record lacked sufficient information to determine whether Snyder had been substantially prejudiced. The trial court indicated it would entertain a renewed motion. Snyder filed a conditional motion for discretionary review, contending that a defendant who violated Loudon has the burden of disproving prejudice, that communications in violation of Loudon are not protected by privilege, and that only communications that reflect the inner workings of a quality improvement 13 Snyder v. Virginia Mason, No. 104136-5 committee are protected from discovery when the committee includes a participant who was not screened from the litigation at issue. A Court of Appeals commissioner granted review of Virginia Mason’s motion in full and of Snyder’s motion in part. She limited Snyder’s issues to “whether a showing of prejudice is required for sanctions for Loudon violations and whether and to what extent a quality improvement (QI) committee member’s participation in the litigation precludes the hospital’s assertion of the QI privilege.” Comm’r’s Ruling Granting Discr. Rev., Snyder v. Virginia Mason Med. Ctr., No. 85326-2-I, at 2 (Wash. Ct. App. May 9, 2022). The Court of Appeals affirmed. Snyder v. Virginia Mason Med. Ctr., 34 Wn. App. 2d 146, 566 P.3d 873, review granted, 5 Wn.3d 1001 (2025). The Court of Appeals concluded that Virginia Mason had violated Loudon by communicating ex parte without Snyder’s consent, that Snyder bore the burden of establishing prejudice, that his ability to establish prejudice is a factor in the appropriate sanction, and that the failure to screen Dr. Glenn from this litigation did not waive the protections of the quality improvement statute. Id. at 152-53. Both sides petitioned for review. We granted both petitions.6 6 The Washington Defense Trial Lawyers; the University of Washington and the University of Washington School of Medicine; the Washington State Healthcare Defense Law Firms; and the Washington State Medical Association, Washington State Hospital Association, and the American Medical Association have submitted amici briefs in support of Virginia Mason. The Washington Association for Justice Foundation has submitted an amicus brief in support of Snyder. 14 Snyder v. Virginia Mason, No. 104136-5 ANALYSIS A trial court’s discovery rulings are generally reviewed for abuse of discretion. Cedell v. Farmers Ins. Co. of Wash., 176 Wn.2d 686, 694, 295 P.3d 239 (2013) (citing T.S. v. Boy Scouts of Am., 157 Wn.2d 416, 423, 138 P.3d 1053 (2006)). We review the trial court’s interpretation of law de novo. Hermanson v. MultiCare Health Sys., Inc., 196 Wn.2d 578, 585, 475 P.3d 484 (2020). This case is part of a long line of cases concerning the scope of the doctor- patient privilege in personal injury and wrongful death actions, the scope of corporate attorney-client privilege in such actions, and the scope of the corporate attorney-client privilege once the employment relationship has ended. We begin with a brief discussion of the leading cases. Loudon was a wrongful death action brought by the father of a son who had been seriously injured in a car accident in Washington. See 110 Wn.2d at 676. After doctors in Washington had released the son from the hospital, he returned home to Oregon and saw other doctors. Id. Not long afterward, the son died of complications related to the accident. Id. His father brought a wrongful death action against his son’s Washington doctors and hospital, alleging that their medical negligence caused his son’s death. Id. He did not sue the Oregon doctors and voluntarily provided their records to the defense. Id. Contending that doctor- 15 Snyder v. Virginia Mason, No. 104136-5 patient confidentiality had been waived, defense counsel also moved for ex parte contact with the son’s Oregon doctors. Id. Loudon surveyed cases from around the country, which were split on whether defense counsel was allowed to have ex parte communications with the plaintiff’s nonparty doctors. Id. at 677 (collecting cases). The Loudon court concluded limiting such contact was appropriate for three reasons. First, allowing defense counsel to communicate with the plaintiff’s nonparty doctors without the plaintiff’s knowledge and consent could have a chilling effect on the doctor-patient relationship because at least some patients would be less likely to seek medical aid. Id. at 679. Second, doctors themselves have an interest in avoiding inadvertent improper disclosure of patient confidence in such ex parte conversations, especially as such disclosures could give rise to liability. Id. at 680. Third, such ex parte conversations could lead to disputes when counsel’s recollection differs from the doctor’s, which may require defense counsel to testify as an impeachment witness. Id. To avoid these consequences, the court unanimously adopted the Loudon rule, which requires the defense to use formal discovery rules. Based on Loudon, this court concluded ex parte contact between defense counsel and a nonparty doctor’s attorney is also improper. Smith v. Orthopedics Int’l, Ltd., 170 Wn.2d 659, 668, 244 P.3d 939 (2010) (Alexander, J., lead opinion); id. at 678 (C. Johnson, J., concurring/dissenting). Smith was a wrongful death 16 Snyder v. Virginia Mason, No. 104136-5 action brought by the surviving husband of a woman who contracted a deadly infection after a spinal surgery. The defense called one of the plaintiff’s doctors, Dr. Johansen, as a fact witness. Id. at 663. During trial, it became clear that defense counsel had sent Dr. Johansen’s lawyer the plaintiff’s trial brief and a copy of the deposition of the plaintiff’s expert, among other documents relevant to the case, and that the doctor had reviewed some of that material before testifying. Id. Defense counsel had also left a voicemail for the doctor’s attorney telling her that the plaintiff’s expert had been critical of the care Dr. Johansen had provided. Id. at 679 (C. Johnson, J, concurring/dissenting). Seven justices agreed that the communications violated Loudon. Id. at 661 (Alexander, J., lead opinion); id. at 678 (concurring & dissenting opinion of C. Johnson, J., concurring/dissenting). The lead opinion, signed by three justices, emphasized that Loudon and subsequent cases prohibited not just ex parte interviews, but ex parte contact and communications. Id. at 666 (citing Holbrook v. Weyerhaeuser Co., 118 Wn.2d 306, 309, 822 P.2d 271 (1992); Carson v. Fine, 123 Wn.2d 206, 227, 867 P.2d 610 (1994)). “[T]he prohibition on ex parte contact, which we set forth in Loudon, is broad and not confined to merely limiting interviews by defense counsel with a plaintiff’s treating physician.” Id. The lead opinion also emphasized two reasons to apply the Loudon rule broadly: first, to protect the sanctity of the doctor-patient relationship, and second, 17 Snyder v. Virginia Mason, No. 104136-5 to protect the treating doctor’s role as a fact witness by guarding them from becoming a witness for the defense. Id. at 667-68. Four justices joined the lead opinion in concluding that the defendant hospital’s contacts with the plaintiff’s doctor violated Loudon. Id. at 678 (C. Johnson, J., concurring/dissenting). Two justices would have limited Loudon to prohibiting defense counsel from directly seeking or soliciting information from the plaintiff’s nonparty doctors ex parte. Id. at 675 (Fairhurst, J., concurring). The rule set forth in Loudon and Smith has been limited in the context of a hospital’s current employees in light of the corporate attorney-client privilege. See Youngs v. PeaceHealth, 179 Wn.2d 645, 664, 316 P.3d 1035 (2014). The plaintiffs in Youngs had brought medical malpractice actions against hospitals that had provided them care. Id. at 651, 653-54. They objected to the defendant having ex parte contact with nonparty doctors who still worked at the defendant hospital. Id. at 654. The court allowed such contacts but with significant limitations. When a doctor-patient relationship exists between the plaintiff and an employee of the defendant hospital, Youngs limits such ex parte contact communications to the facts of the alleged negligent event. Id. at 664, 671. Youngs is grounded in the statutory attorney-client privilege and Upjohn Co. v. United States, 449 U.S. 383, 386, 390, 101 S. Ct. 677, 66 L. Ed. 2d 584 (1981). Youngs, 179 Wn.2d at 651; see also RCW 5.60.060(2)(a). The court rejected the 18 Snyder v. Virginia Mason, No. 104136-5 hospital’s argument “that Upjohn completely trumps Loudon.” Youngs, 179 Wn.2d at 652. Instead, it harmonized the attorney-client and doctor-patient privileges into a new rule: To protect the values underlying both the physician-patient and the attorney-client privileges, we adopt a modified version of the Upjohn test in this context. Under this test, an attorney hired by a defendant health care provider to investigate or litigate an alleged negligent event may conduct privileged ex parte communications with a plaintiff’s nonparty treating physician only where the communication meets the general prerequisites to application of the attorney-client privilege, the communication is with a physician who has direct knowledge of the event or events triggering the litigation, and the communications concern the facts of the alleged negligent incident. Id. at 179 Wn.2d at 653 (footnote omitted) (citing Haines v. Liggett Grp., Inc., 975 F.2d 81, 90 (3d Cir. 1992)). We have declined to extend Youngs to former employees. Newman v. Highland Sch. Dist. No. 203, 186 Wn.2d 769, 777, 782, 381 P.3d 1188 (2016). In Newman, a high school student sustained a head injury during a football practice, was allowed to play the game even though he showed signs of a concussion, and consequently suffered a permanent brain injury. Id. at 774-75. Before trial, the school’s counsel interviewed several former football coaches and appeared on their behalf at depositions. The school argued that these former employees should be treated the same as current employees for the purposes of the corporate attorney- client privilege. Id. at 783. 19 Snyder v. Virginia Mason, No. 104136-5 While recognizing that some courts had accepted the argument that former employees should be treated the same as current employees for purposes of corporate attorney-client privilege, this court rejected that argument. Id. at 782 (citing In re Allen, 106 F.3d 582, 605-06 (4th Cir. 1997) (collecting cases)). Newman reasoned: Highland’s argument for extending the attorney-client privilege to its communications with the former coaches emphasizes that these former employees may possess vital information about matters in litigation, and that their conduct while employed may expose the corporation to vicarious liability. These concerns are not unimportant, but they do not justify expanding the attorney-client privilege beyond its purpose. 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. State v. Chervenell, 99 Wn.2d 309, 316, 662 P.2d 836 (1983). This purpose is preserved by limiting the scope of the privilege to the duration of the employer-employee relationship. See RESTATEMENT (THIRD) OF THE LAW GOVERNING LAWYERS § 73(2). Upon termination of the employment relationship, the interests of employer and former employee may diverge. But the attorney-client privilege belongs solely to the corporation, and it may be waived or asserted solely by the corporation, even to the detriment of the employee. Id. at 781 (footnote omitted). Most recently, in Hermanson, the court extended Youngs to a hospital’s nurses and social workers, and to independent contractors working at a hospital who are deemed the functional equivalent of employees. Hermanson, 196 Wn.2d at 581. The court held that a defendant hospital’s legal team could have privileged 20 Snyder v. Virginia Mason, No. 104136-5 ex parte communications with nurses, social workers, and Dr. Patterson, an independent contractor, subject to the limitations imposed in Youngs. Id. Hermanson analogized Dr. Patterson to an employee covered by corporate attorney-client privilege for several reasons. First, it recognized that Dr. Patterson himself had a principal-agent relationship with the hospital because the hospital had the right to control the details of his work. Id. at 587-88. These facts distinguished Dr. Patterson from the former employees in Newman, who did not have a principal-agent relationship with their former employer, “‘c[ould] no longer bind the corporation and no longer owe[d] duties of loyalty, obedience, and confidentiality.’” Id. at 588 (alterations in original) (quoting Newman, 186 Wn.2d at 780). Second, the court concluded Dr. Patterson was the functional equivalent of an employee due to the nature of his work and his contract with his direct employer and the hospital. Id. at 589-90. Thus, the court concluded the hospital was entitled to have privileged ex parte contact with Dr. Patterson. Id. MultiCare, the defendant in Hermanson, had argued that since the plaintiff was attempting to hold it vicariously liable for Dr. Patterson’s conduct, it was entitled to have privileged ex parte contact with Dr. Patterson. Id. at 590 (citing court document). The court rejected that approach. Id. Instead, it concluded that whether the hospital could have limited, privileged ex parte communications with Dr. Patterson was a separate question from whether the hospital was vicariously 21 Snyder v. Virginia Mason, No. 104136-5 liable for Dr. Patterson’s conduct. Id. The court also rejected MultiCare’s argument that it should be allowed to have ex parte communications with a treating physician when it had entered into a representation agreement with that physician. Id. at 590 n.1. The court observed that “MultiCare’s argument would allow any corporation to circumvent a plaintiff’s physician-patient privilege by entering into a representation agreement with a treating physician, rendering the physician- patient privilege moot whenever the corporation chooses.” Id. In a separate line of cases, Washington courts have recognized a “common interest doctrine.” Under this doctrine, “when multiple parties share confidential communications pertaining to their common claim or defense, the communications remain privileged as to those outside their group.” Sanders v. State, 169 Wn.2d 827, 853, 240 P.3d 120 (2010) (citing Broyles v. Thurston County, 147 Wn. App. 409, 442, 195 P.3d 985 (2008)). The doctrine is an exception to the general rule that sharing attorney-client privileged communications or documents waives the attorney-client privilege. Id. at 853-54. With this history in mind, we turn to the issues before us. 1. Did Virginia Mason violate Loudon? The trial court concluded Virginia Mason violated Loudon through its ex parte communications with Drs. Chew, Downey, and Aranson. We agree. 22 Snyder v. Virginia Mason, No. 104136-5 Virginia Mason does not deny that these communications occurred. Instead, it offers several different arguments for why Loudon should not apply. In essence, it, strongly supported by amici, argues that Loudon should be limited to cases where the nonparty doctor was not potentially implicated in the plaintiff’s injury. First, Virginia Mason attempts to distinguish Loudon and its progeny on the theory that in those cases, the nonparty doctors were not implicated in the care that gave rise to the cause of action. But we note that in Smith, the improper ex parte communications began with a phone call from the hospital’s counsel to the nonparty doctor’s counsel informing him that the plaintiff’s expert was critical of the doctor’s work. 170 Wn.2d at 679 (C. Johnson, J., concurring/dissenting). That fact was not enough to defeat application of Loudon in the minds of a majority of the court. Virginia Mason also suggests the plaintiff in Youngs conceded that defense counsel could have ex parte contact with doctors whose conduct was at issue, regardless of whether those doctors were parties to the case. Virgina Mason’s Suppl. Br. at 3 n.2 (citing Youngs’ response to an amicus brief). We find no clear concession in that brief. But even if the party made such a concession—which is far from clear—the rule articulated in Youngs did not turn on whether the corporate employees’ conduct was at issue. Put plainly, this court has never made application of the Loudon rule turn on whether the nonparty doctor was potentially at fault, and to allow the 23 Snyder v. Virginia Mason, No. 104136-5 protection afforded by Loudon to be evaded by the defense counsel without leave of the court would gut our holding in that case. More importantly, nothing in Loudon or subsequent cases suggests that the doctor-patient privilege has less force when the doctor may have been negligent or otherwise at fault. Loudon gave three reasons for its holding—to prevent chilling the doctor-patient relationship, to avoid inadvertent improper disclosure of patient confidences, and to avoid a situation where defense counsel might be called upon to be an impeachment witness. 110 Wn.2d at 678-80. None of these three reasons have any different force when the doctor might have been at fault. Second, Virginia Mason argues that once a doctor is allegedly at fault, there should no longer be any concern about the defense shaping their testimony through ex parte contact. Regardless of whether that is true in the abstract, Snyder himself has not alleged that these doctors are at fault or named them as parties. Adopting Virginia Mason’s approach would also gut Loudon by effectively allowing the defense to decide which doctors might be at fault and thus outside of Loudon’s scope. Third, Virginia Mason contends, prior to Newman, it was generally understood that “corporate attorney-client privilege extends to communications between corporate counsel and former employees with respect to relevant knowledge gained during their relationship with the company.” Virginia Mason’s 24 Snyder v. Virginia Mason, No. 104136-5 Suppl. Br. at 4 & n.3 (citing In re Coordinated Pretrial Procs. in Petrol. Prod. Antitrust Litig., 658