Balancing The Attorney-Client And Physician-Patient Privileges

The Washington State Supreme Court has held that “an attorney hired by a corporate defendant to investigate or litigate an alleged negligent event may engage in privileged (ex parte) communications with the corporation’s physician employee where the physician-employee has firsthand knowledge of the alleged negligent event and where the communications are limited to the facts of the alleged negligent event.”

The ruling does not encompass health care provided before and after the event that resulted in litigation.

The court considered the application of the rule from a 1988 decision that barred ex parte communication between a doctor and his or her employer’s attorney “where the employer is a corporation and named defendant whose corporate attorney-client privilege likely extends to the physician, at least as to certain subjects” and “balance[d] the values underlying the attorney-client privilege against those underlying the physician-patient privilege.”

Justice Stephens concurred and dissented, finding the court’s new rule an “unworkable” one that “erodes the sound policy decision” of the earlier case. (Mike Frisch)