October 14, 2026 by matray

A divided Washington Supreme Court ruled that a hospital violated restrictions on private communications with a malpractice plaintiff’s treating physicians who were former employees. The court ordered reconsideration of sanctions, including possible default judgment, with a presumption of prejudice to the plaintiff. 

Case: Snyder v. Virginia Mason Medical Center, No. 104136-5, 10/01/2026, published.  

Facts: Michael Snyder underwent surgery at Virginia Mason Medical Center in January 2018.  

Dr. Jared Brandenberger was the lead surgeon for the procedure. 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 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. 

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.  

Snyder began to bleed heavily, then 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. 

Procedural history: Snyder sued Virginia Mason and Brandenberger, but not Chew, Downey and Aranson.  

After Snyder filed his lawsuit, Virginia Mason’s counsel determined Downey, Chewand Aranson were involved in the care that gave rise to this lawsuit. None of these doctors worked at Virginia Mason anymore, but Virginia Mason was still responsible for providing them with a defense and covering any liability they may have for Snyder’s injuries.  

Virginia Mason arranged for the three doctors to be represented by separate counsel, attorney Jennifer Oetter, but 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.  

In December 2019, Virginia Mason’s chief medical officer, Dr. Michael Glenn, went to see Chew. Virginia Mason’s defense team worked with Glenn in coordinating the trip and provided him with talking points for that conversation.  

Glenn later testified in a deposition that he had not discussed the surgery or the litigation details with Chew at that meeting and had not received talking points in writing. 

Oetter was present for the meeting and had discussed traveling there with Glenn.  

In April 2020, Virginia Mason included 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 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.”  

But 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.  

In early 2021, two of Snyder’s experts were deposed by the defense. Both experts suggested that the three nonparty doctors might have been negligent.  

Oetter then sought and obtained transcripts of the expert depositions where Aranson was discussed, and Aranson filed a motion to intervene.  

Virginia Mason supported his motion on several grounds, including that their interests might conflict and, again, that it “did not have access” to Aranson.  

A trial judge allowed Aranson to intervene.  

Meanwhile, Snyder sought Virginia Mason’s communications with the nonparty doctors. Virginia Mason responded by moving for a protective order. 

The judge directed the defense to produce communications between Virginia Mason’s defense counsel and nonparty healthcare providers for review by a special master. The special master identified 30 documents that they believed should be disclosed, and the judge ordered them to be disclosed.  

Snyder moved the court to direct the special master to produce all of the documents for the judge’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. The privilege log described 467 documents. 

Snyder also 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.”  

Virginia Mason also moved for leave to have ex parte communication with the three doctors. The judge denied the motion.  

Virginia Mason sought discretionary review of the judge’s ruling directing it to produce documents, and on whether it was allowed to have ex parte contact with former employees.  

While that motion was pending, Snyder moved for production of the documents provided to the special master and quality assurance documents. After those motions were denied, Snyder moved for a default judgment on liability.  

The trial judge found Virginia Mason had violated the rule from Loudon v. Mhyre, but denied Snyder’s motion for a default judgment as a sanction for the violation.  

Loudon held that defendants in personal injury cases must use formal discovery rules to communicate with a plaintiff’s nonparty doctors, unless the defendant is a corporation; in that situation, corporate counsel may have privileged conversations with the corporation’s current employees without going through the formal discovery process.  

The Court of Appeals affirmed.  

Analysis: The Washington Supreme Court agreed that Virginia Mason had violated Loudon through its ex parte communications with Chew, Downeyand Aranson.  

“Loudon rests on the premise that ex parte contact with a plaintiff/patient’s healthcare providers is harmful to the fiduciary relationship, to the trust it is built on, and ultimately to healthcare outcomes,” the court said. “For this reason, it is appropriate to recognize a baseline of prejudice that flows from any Loudon violation, regardless of whether it negatively impacts a plaintiff’s litigation interests.”  

In determining the appropriate remedy, the court said, a judge has discretion to weigh the extent of prejudice, and depending on the degree of prejudice shown, an appropriate remedy might range from a monetary sanction to a default judgment of liability.  

The court said remand was necessary for the judge to reconsider the denial of Snyder’s motion for default judgment with a presumption of prejudice from Virginia Mason’s Loudon violations.  

Dissent: Justice Sheryl Gordon McCloud argued that Loudon should not apply to free communication between an employer and its nonparty former employee doctors if it prevents the employer from investigating or defending itself.  

“I would hold that Loudon does not bar ex parte contact between a defendant and nonparty treating doctors who are employees or former employees of the defendant and whose care gave rise to the plaintiff’s claim against the defendant,” Gordon McCloud said.  

Disposition: Vacated in part and remanded.  

To read the court’s decision, click here.