case presents two questions of controlling law. First, does
the corporate attorney-client privilege apply to a nonparty
physician who is an agent, but not an employee, of a
hospital? And second, does the corporate attorney-client
privilege apply to nonphysician employees of a hospital who
are parties to the lawsuit? We answer the first question in
the negative, and the second question in the affirmative.
the course of a discovery dispute, the superior court issued
an order that (1) prohibited MultiCare Health System
Inc.'s counsel from having ex parte, privileged
communications with a physician who is an admitted agent of
MultiCare but not an employee; (2) prohibited MultiCare's
counsel from having ex parte, privileged communications with
a social worker employed by MultiCare; (3) allowed ex parte,
privileged communications with nurses employed by MultiCare;
and (4) required MultiCare to seek leave of court prior to
having ex parte communications with any other "MultiCare
affirm the superior court's order to the extent that it
(1) prohibited ex parte privileged communications with the
physician, and (2) allowed ex parte privileged communications
with the nurses. We reverse the superior court's order to
the extent that it (3) prohibited ex parte privileged
communications with the social worker, and (4) required
MultiCare to seek leave of court prior to having ex parte
communications with any other MultiCare healthcare providers.
Hermanson, while speeding in his pickup truck, sideswiped a
parked vehicle, crossed the center line, and collided head on
with a power pole. Hermanson's head penetrated the
windshield. He was transported to Tacoma General Hospital,
where he was treated by a trauma team for his injuries.
Relevant here, Hermanson received treatment from:
(1) Dr. David Patterson, a Trauma Trust employee, and
admitted agent of MultiCare;
(2) Nurse Pauleen Wheeler, a MultiCare employee;
(3) Nurse Carla Defibaugh, a MultiCare employee; and
(4) Clinical social worker, Lori Van Slyke, a MultiCare
was given a blood alcohol screen. He had a "high [blood
alcohol level] on admission," but he denied consuming
alcohol. Clerk's Papers (CP) at 88. The blood alcohol
screen indicated a blood alcohol level of 330 mg/dL.
enforcement went to Tacoma General as part of the accident
investigation. At some point, a healthcare provider allegedly
disclosed Hermanson's blood alcohol level to law
enforcement. At the hospital, Hermanson was issued a citation
for first degree negligent driving. Hermanson was later
charged with first degree negligent driving, and hit and run
of an unattended vehicle.
MultiCare and Trauma Trust Background
a nonprofit corporation, operates Tacoma General. MultiCare,
CHI Franciscan Health Systems, Madigan Army Medical Center,
and Pierce County Medical Society formed Trauma Trust, a
nonprofit corporation, to provide trauma services. Trauma
Trust was created to address the lack of adult trauma
services being offered in the area and to share the risk and
resources of providing those services.
Trust employs physicians and other professionals to deliver
trauma services. Trauma Trust employee physicians have
privileges at each participating hospital, including Tacoma
General. As it pertains to services provided at MultiCare
facilities, Trauma Trust's employees are agents of
MultiCare, and MultiCare is responsible for any care they
deliver within the scope of their duties providing trauma
Trust is closely affiliated with MultiCare. The
administrative offices for Trauma Trust are located within
Tacoma General, and MultiCare provides billing and technical
support to Trauma Trust. Dr. Patterson has an office at
on the disclosure of Hermanson's blood alcohol level,
Hermanson sued MultiCare, and Jane and John Does 1-10,
identified as individuals employed by MultiCare, for
negligence, defamation, false imprisonment, and violation of
physician-patient privilege under RCW
5.60.060(4). Hermanson did not allege personal injuries
or other medical malpractice. Hermanson's complaint did
not name either Trauma Trust or Dr. Patterson.
single law firm was retained to represent MultiCare, Dr.
Patterson, and Trauma Trust in connection with
Hermanson's lawsuit. Although Trauma Trust was not named
in the lawsuit, Trauma Trust retained counsel because
Hermanson's "demand letter clearly implicated the
Emergency Department at Tacoma General Hospital and trauma
services." CP at 543. Additionally, MultiCare recognized
that Dr. Patterson was an agent of MultiCare in providing
care to Hermanson. Trauma Trust, Dr. Patterson, and MultiCare
signed a letter confirming joint representation.
the initial stages of the lawsuit, MultiCare's counsel
notified Hermanson that it represented MultiCare and its
employee-social worker and employee-nurses, Trauma Trust, and
Dr. Patterson. Hermanson objected to MultiCare's counsel
representing the social worker, nurses, Trauma Trust, and Dr.
sought a protective order "confirming the right of
MultiCare's attorneys to have ex parte privileged
communications" with its clients, including but not
limited to Dr. Patterson, the nurses, and the social worker,
who had direct knowledge of the alleged negligence at
argued that it was entitled to have communications with Dr.
Patterson, the nurses, and the social worker based on
corporate attorney-client privilege under Loudon v.
Mhyre,  Upjohn Co. v. United States,
Youngs v. PeaceHealth. Specifically, it argued that its
attorney-client privilege allowed ex parte privileged
communications with MultiCare's agents who had firsthand
knowledge of the alleged negligent event, namely Dr.
Patterson, the social worker, and the nurses. MultiCare also
argued that it was entitled to ex parte privileged
communications with Dr. Patterson under the joint
Hermanson argued that counsel was
prohibited from having ex parte privileged communication with
Dr. Patterson under Loudon, and because he was not a
MultiCare employee, Youngs did not apply. Hermanson
further argued that counsel was prohibited from having ex
parte privileged communication with the nurses under
Youngs because they are not physicians. Further,
Hermanson argued that because the nurses did not appear to
have released Hermanson's healthcare information, they
could not have firsthand knowledge of the alleged negligent
event "unless MultiCare intends on certifying [they
were] present when Dr. Patterson or [the social worker]
disclosed plaintiffs health care information." CP at 66.
Hermanson also argued that counsel was prohibited from having
ex parte privileged communication with the social worker
under Loudon and Wright v. Group
The Superior Court's Decision
superior court ruled that, under Youngs, ex parte
privileged communication with Dr. Patterson was prohibited
because he was not MultiCare's employee. With regard to
the nurses, the court allowed ex parte privileged
[The] nurses who may have had contact with the injured
individual in this case, even though they're not
physicians, that would fall under the physician-patient
purview that was before the Court with Youngs vs.
PeaceHealth. These are employees of MultiCare Health
System, it appears; and I think, in line with the reasoning
given by the Court, they would fall under something that the
Court did not have before it but very similar reasoning.
Report of Proceedings (VRP) (Aug. 11, 2017) at 25.
with regard to the social worker, the court prohibited ex
parte privileged communications, saying:
I believe this individual is a social worker; and I don't
believe [the social worker] falls under either the
employee-physician or anything like a physician-patient
analysis that the Court went through for the physicians, even
though she is an employee of MultiCare; and, therefore, I
don't believe Youngs vs. PeaceHealth, she falls
under that privilege that can be afforded [the nurses]; and,
therefore, that ex parte communication would be denied.
VRP (Aug. 11, 2017) at 25.
court entered an order granting in part and denying in part
MultiCare's motion for protective order. The court's
order also required MultiCare's counsel to seek leave of
the court prior to ex parte communications with "other
MultiCare healthcare providers."  CP at 136.
MultiCare moved for reconsideration, which was denied.
trial court certified for discretionary review the protective
order and order denying MultiCare's motion for
reconsideration. We granted MultiCare's motion for
discretionary review under RAP 2.3(b)(4),  and
considered Hermanson's response to the motion as a cross
motion for discretionary review, which we also granted.
Standard of Review
review a superior court's discovery order for abuse of
discretion. Richardson v. Gov't Emps. Ins. Co.,
200 Wn.App. 705, 711, 403 P.3d 115 (2017), review
denied, 190 Wn.2d 1008 (2018). A superior court abuses
its discretion where the court's decision was manifestly
unreasonable or made for untenable reasons.
Richardson, 200 Wn.App. at 711. Further, a superior
court abuses its discretion if its decision is based on the
wrong legal standard, or on an improper understanding of the
law. Richardson, 200 Wn.App. at 711. When a superior
court's decision rests on a question of law, such as
statutory interpretation or judicial decisions, we review the
decision de novo. Fellows v. Moynihan, 175 Wn.2d
641, 649, 285 P.3d 864 (2012); Richardson, 200
Wn.App. at 711.
Legal Background: Attorney-Client Privilege
attorney-client privilege is the oldest of the privileges for
confidential communications known to the common law."
Upjohn Co. v. United States, 449 U.S. 383, 389, 101
S.Ct. 677, 682, 66 L.Ed.2d 584 (1981). The purpose of the
privilege "is to encourage full and frank communication
between attorneys and their clients," recognizing
"that sound legal advice or advocacy serves public ends
and that such advice or advocacy depends upon the
lawyer's being fully informed by the client."
Upjohn, 449 U.S. at 389.
attorney-client privilege is codified in Washington at RCW
5.60.060(2)(a), which provides: "An attorney or
counselor shall not, without the consent of his or her
client, be examined as to any communication made by the
client to him or her, or his or her advice given thereon in
the course of professional employment." To qualify for
the privilege, communications must have been made in
confidence and in the context of an ...