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Imagine something goes wrong during your surgery. Imagine suing the hospital that injured you. Now imagine learning that, for years, the hospital’s lawyers and risk managers were quietly talking with your own doctors about your case, more than 400 times, without telling you. That is what happened to Michael Snyder. On October 1, 2026, in Snyder v. Virginia Mason Medical Center, No. 104136-5, 2026 WL 2945771, the Washington Supreme Court said that crossed the line. In a 6-3 opinion by Justice González, the court affirmed the longstanding rule that a medical malpractice defendant cannot talk with a patient’s doctors about the lawsuit behind the patient’s back.
Snyder’s surgery goes wrong at Virginia Mason
Michael Snyder had major surgery at Virginia Mason in 2018. Besides the lead surgeon, two residents and a vascular surgeon took part. The tip of a catheter line went through an artery into his chest. When the team removed it, he bled heavily and his heart stopped for an extended period of time. He survived, but with permanent, disabling injuries.
Snyder sued Virginia Mason and his lead surgeon for medical malpractice. He did not sue the two residents or the vascular surgeon. All three had left Virginia Mason by the time of his lawsuit.
For years after Snyder sued, Virginia Mason’s lawyers, risk managers, and claims administrator talked with those three doctors behind the backs of Snyder and his lawyers. They had more than 400 communications. Virginia Mason’s chief medical officer, who sat on its quality improvement committee, even traveled across the state to meet with one of the doctors, armed with talking points from defense counsel.
Snyder moved for sanctions, arguing the direct communications with his doctors violated a longstanding rule from Loudon v. Mhyre.
Can their lawyers talk to my doctor? (The Loudon rule)
In medical malpractice cases, two important legal principles collide: a doctor’s duty to keep patient information confidential, and a hospital’s right to have privileged talks between its lawyers and its employees, including healthcare providers, about the case.
In Loudon v. Mhyre, 110 Wn.2d 675 (1988), the court held that defense lawyers in injury cases cannot have private, one-sided (called “ex parte”) conversations with the plaintiff’s doctors. This is true even though the plaintiff has waived their physician-patient privilege related to their injuries by filing a lawsuit. The court made a policy decision to prohibit ex parte discussions and held the defense must use formal discovery, like a deposition, or get the plaintiff’s consent to talk to their doctors
The court carved out one exception in Youngs v. Peacehealth, 179 Wn.2d 645 (2014). There, the court decided the corporate attorney-client privilege trumps the Loudon rule with medical practitioners employed by the defendant. This exception is limited to only physician-employees with firsthand knowledge of the triggering event and then only as to the facts of the alleged negligent event.
Why does the Loudon rule exist? Two reasons. First, it protects confidentiality. Patients tell their doctors things they tell no one else. If the defense lawyer communicates with a patient’s doctor behind their back, no one is there to object if the doctor shares irrelevant health information — and once it is out, it cannot be taken back. Second, this secret contact can subtly shape the doctor’s testimony. Juries trust a patient’s own doctor as neutral; in ex parte discussions the defense can preview the evidence and pull the doctor toward its theory, with no way for the patient to know what was said, to rebut it, or test it on cross-examination. Snyder argued Virginia Mason did exactly that — “secretly educating, preparing and coaching” his doctors.
Loudon covers all doctors, regardless of their role in the case
Snyder addressed the unanswered question post-Youngs: does the Loudon rule apply to physicians that are no longer employed by the defendant-corporation? Because the court in other circumstances held that corporations no longer had a protected attorney-client relationship with former employees, Virginia Mason changed tactics. Virginia Mason argued that Loudon should not apply to any doctors who may have caused the injury. The court disagreed, holding Loudon does not turn on whether a doctor might be at fault. The reasons for the rule, like protecting the trust between patient and doctor, apply just as strongly when the doctor makes a mistake.
Hospitals can still get information from these doctors. But they must do it with the patient’s consent or through formal discovery so the patient’s lawyer can also be present.
Washington courts now presume prejudice when defense lawyers communicate with plaintiff’s doctors behind their back
For me, the section on prejudice is key. Before Snyder, the court had never settled who must prove harm when the defense breaks the Loudon rule. It came close in 2010, in Smith v. Orthopedics International, but only four justices supported shifting the burden to prove harm away from the plaintiff.
Snyder is a good illustration of why the burden matters. The trial court denied Snyder’s request for a default judgment because it “lacks the information to determine if the violation substantially prejudiced plaintiff.” The Court of Appeals affirmed. It treated a Loudon violation like any other discovery violation, which requires a party to prove a violation impaired their ability to prepare for trial.
The Supreme Court rejected that approach. Loudon is not just about a fair trial. It protects the doctor-patient relationship, itself a vitally important relationship regardless of what happens in court. The court noted that the ex parte contact with doctors harms the trust that the doctor-patient relationship is built on, which the court noted can in turn harm “health care outcomes.” That harm happens every time the rule is broken, regardless of whether it actually impacts the lawsuit. So the court adopted a new rule: once a court finds a Loudon violation, prejudice is presumed. The patient does not have to prove the violation affected the case to get relief.
The court noted it would be unfair for the rule to be different. The patient is not in the room when the talks happen. Only the defense knows what was said. Making the patient prove harm would condemn the misconduct but leave the patient with no remedy because they cannot prove what occurred. As the court put it, quoting Smith, that places “an almost insurmountable burden on the party that has done nothing wrong.”
This does not mean the plaintiff automatically wins the case. The trial court still weighs how much prejudice the violation caused, which can include its effect on the case. Remedies range from money sanctions at the low end to a default judgment on liability at the high end. The court vacated the denial of Snyder’s default motion and sent it back for the trial court to reconsider, this time presuming prejudice.
Washington’s quality improvement privilege has limits
Washington law shields a hospital’s internal quality improvement reviews from discovery under RCW 70.41.200, so doctors can review mistakes candidly. But Virginia Mason never screened its chief medical officer, Dr. Michael Glenn, from the lawsuit. He sat on the committee that reviewed Snyder’s surgery. He also worked with defense counsel, talked with the former doctors, and is on the hospital’s witness list. The court held he cannot play both roles. The court in Snyder held that Virginia Mason “at least partially waived” the privilege for records about his litigation role and his talks with those doctors. The trial court will sort out which records.
Why this case matters
The court in Snyder used strong language to affirm the Loudon rule and the reasons for it. It refused to weaken Loudon’s protection or let defendants turn a patient’s own doctor into a defense witness. It applies Loudon to former employees, even if they are
The court expressly rejected the argument that a Loudon violation is treated like an ordinary discovery violation from which a plaintiff must prove actual prejudice, instead imposing the presumption of prejudice. This presumption is a new standard in this context, and the trial courts will need to spend time fleshing out what it means for each case.
For lawyers, here are some practical suggestions:
- Ask about contact early. Find out whether the defendants, lawyers, or any of their agents contacted the patient’s doctors (or their lawyers). Force the production of a CR 26(g)-compliant privilege log so you can understand the depth and breadth of the ex parte contact.
- Check the QI committee. Find out who sits on it, and whether and how the hospital screened them from the litigation. Cross-reference the names on the privilege log with the participants on the QI committee. If screening did not happen or is unclear, move to compel the QI records.
- Look to insurance bad faith law. Snyder analogizes the quasi-fiduciary duty an insurer owes its insured to the duty a doctor owes to patients. Because of those similarities, the court expressly adopted the in camera review procedures laid out in Cedell, an insurance bad faith case. Washington insurance law is strongly pro-consumer, and there may be other opportunities to borrow from insurance bad faith law.