Defense counsel contacting a personal injury plaintiff's treating physicians without authorization has been prohibited in Washington under the Loudon rule for decades. What has remained contested is what happens next: must the plaintiff demonstrate that the contact actually harmed the litigation, or is harm assumed once the violation is established? The Washington Supreme Court answered that question definitively in Snyder v. Virginia Mason Med. Ctr., No. 104136-5 (Wash. Oct. 1, 2026), adopting a presumed prejudice standard in a 6-3 decision and removing the burden from plaintiffs to quantify the litigation impact of an unauthorized communication they almost by definition cannot know about.
Background: The Loudon Rule and Ex Parte Physician Contacts
The Loudon rule, established in Loudon v. Mhyre, 110 Wn.2d 675 (1988), prohibits defense counsel in personal injury litigation from having ex parte communications with the plaintiff's non-party treating physicians. The policy rationale is protective of the patient-physician relationship: the physician's primary duty is to the patient, and ex parte communications create a structural risk that treatment information outside the formal medical record will be used to undermine the plaintiff's case without an opportunity for the plaintiff's counsel to be present and respond.
In Snyder, Virginia Mason Medical Center's defense counsel contacted non-party treating physicians in a medical malpractice case. The trial court found a Loudon violation but denied full relief because the plaintiff could not demonstrate that the communications had actually prejudiced the litigation outcomes at trial. The Washington Court of Appeals affirmed on similar reasoning. The Supreme Court granted review and reversed.
The Holding: Presumed Prejudice, Discretionary Remedy
The 6-3 majority held that prejudice is presumed once a Loudon violation is established, and that a plaintiff does not need to prove actual impact on the litigation to obtain a remedy. The court's reasoning is grounded in the nature of the violation itself: because the ex parte communication is secret by design, the plaintiff has no practical means of demonstrating exactly what was communicated or how it influenced defense strategy or the physician's subsequent conduct. Requiring proof of actual prejudice would effectively nullify the rule in all but the most egregious cases where the content of the communication happened to surface in discovery.
The majority was careful to clarify that the presumed prejudice standard does not determine the remedy, only the threshold for relief. Trial courts retain discretion to determine the appropriate remedy based on the extent of prejudice shown, including whether the communication affected trial preparation, influenced the physician's testimony, or resulted in the disclosure of confidential treatment information. Remedies available under the Loudon framework include exclusion of the physician's testimony, an adverse inference instruction, sanctions, and in the most serious cases dismissal. The majority's framing gives trial courts tools to calibrate the remedy without requiring impossible proof from plaintiffs.
The Dissent's Theory
The three-justice dissent argued that presuming prejudice without any evidence of actual harm to the litigation crosses from a prophylactic rule into a punitive one. The dissent would have required the plaintiff to make at least a threshold showing that the ex parte contact was substantive, meaning that it involved treatment information beyond what appeared in the medical record, before any remedy would attach. The dissent's framing preserves the distinction between a technical Loudon violation and a material one, while the majority's approach treats the act of unauthorized contact as categorically prejudicial regardless of its content.
Practical Implications for PI Counsel
For plaintiff counsel in Washington, Snyder simplifies the motion practice surrounding Loudon violations substantially. The threshold question is now binary: did defense counsel contact the treating physician without authorization? If so, the plaintiff is entitled to a remedy without the discovery burden of reconstructing what was said. Plaintiff attorneys should continue to monitor for Loudon violations through discovery requests targeting any communications between defense counsel or counsel's agents and non-party treating physicians, and should seek certification from defense counsel early in litigation that no such contacts have occurred.
For defense counsel, the decision raises the practical stakes of any informal contact with treating physicians dramatically. Even contacts that were intended to be logistical, such as scheduling, rather than substantive face the presumed prejudice framework if they occur without plaintiff's counsel present or without prior authorization. Defense firms handling Washington PI cases should update their discovery protocols to route all treating physician contacts through formal deposition or authorized record-request channels.
The decision also has implications beyond Washington. Several states have analogous rules governing ex parte physician contacts in PI cases, and the policy tension between the Snyder majority and dissent, actual prejudice versus presumed prejudice, will play out in other jurisdictions as more courts consider the question. The majority's approach aligns with the practical reality that ex parte violation consequences were previously under-enforced in cases where defense counsel could argue the contact was harmless. For a broader view of how courts are setting boundaries on defense discovery conduct in PI cases, the case-law-settlements category tracks the significant appellate decisions. The medical-malpractice category covers the specific procedural rules governing expert and treating physician discovery in med-mal cases specifically, including certificate-of-merit requirements and the peer-review privilege that often intersects with ex parte contact issues.
What the Ruling Does Not Address
Snyder does not resolve whether the presumed prejudice standard applies to defense contacts with treating physicians who are also designated as expert witnesses by the defendant, a scenario where the Loudon rule's application has historically been less clear. The majority's reasoning focuses on the patient-physician relationship's privacy interest, which may be analyzed differently when the physician has already been designated as a defense expert. That question will almost certainly reach the court in a future case.