A road trip, 400 hidden communications, and a new legal standard no employer wants to trigger
A Seattle hospital's secret talks with former employee doctors just cost it critical legal protections.
The Washington Supreme Court ruled on October 1, 2026, that Virginia Mason Medical Center broke state law by privately communicating with three former doctors involved in a patient's surgery - without his knowledge or consent - and partly forfeited its quality improvement committee privilege.
The patient had surgery at Virginia Mason in January 2018. A catheter was misplaced. When the team withdrew it, he suffered a massive hemorrhage, cardiac arrest, and permanent disabling injuries. He sued in March 2019.
He did not name the three doctors who assisted - two residents and a vascular surgeon. All three had already left.
That did not stop Virginia Mason from reaching out.
The hospital arranged separate counsel for the doctors. Its defense team, risk managers, and a third-party claims administrator all stayed in contact with them. A privilege log later listed more than 400 instances of communication.
Virginia Mason told the patient's lawyer the former doctors' knowledge was "more readily available to plaintiff's counsel than defense counsel" because it could not contact them. The court called that, at minimum, misleading - the hospital's own risk manager had already spent an hour on the phone with one of the doctors.
Then there was the road trip. The hospital's chief medical officer - who sat on its quality improvement committee - traveled across the state to reassure one of the former doctors. Defense counsel coordinated the visit and provided talking points.
Under Washington's Loudon rule from 1988, defendants must use formal discovery to contact a plaintiff's nonparty doctors. Virginia Mason pressed six arguments for an exception. The court rejected every one.
It then adopted a presumed prejudice standard: once a Loudon violation is found, prejudice is presumed. The plaintiff need not show the communications hurt their case. Remedies range from monetary sanctions to default judgment.
On quality improvement, the court found Virginia Mason at least partially waived its statutory privilege by failing to screen the chief medical officer from the case. He had received litigation talking points and was on the witness list.
Two dissenting justices said the majority stretched Loudon beyond its scope.
For HR and risk teams at self-insured employers: informal contact with former staff at the center of active litigation is now presumptively prejudicial in Washington, and it can strip away internal investigation protections.
