Update on Trump’s Coup: Do Not Think That This Is Guaranteed to End Well

NEIL H. BUCHANAN

UF Levin College of Law professor Neil H. Buchanan explains why “being patient with Trump” is a recipe for disaster, why there are still reasons to be guardedly optimistic, and why this all could still end very badly. Buchanan argues that the present situation is not guaranteed end badly, but he cautions that a Trump coup is eminently possible.

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Hermanson v. Multicare Health Sys., Inc.

Docket: 97783-6

Opinion Date: November 12, 2020

Judge: Susan Owens

Areas of Law: Civil Procedure, Health Law, Legal Ethics, Personal Injury

The issue this case presented for the Washington Supreme Court's review related to the boundaries of the corporate attorney-client privilege and how it operated when in conflict with a plaintiff’s physician-patient privilege. In 2015, Doug Hermanson sideswiped an unoccupied vehicle and crashed into a utility pole. Hermanson was transported to Tacoma General Hospital, which was owned by MultiCare Health System Inc. Hermanson was treated by several MultiCare employees, including two nurses and a crisis intervention social worker. However, the physician who treated Hermanson, Dr. Patterson, was an independent contractor of MultiCare pursuant to a signed agreement between MultiCare and Trauma Trust, his employer. Trauma Trust was created by MultiCare; Dr. Patterson had his own office at Tacoma General Hospital and was expected to abide by MultiCare’s policies and procedures. During Hermanson’s treatment, an unidentified person at Tacoma General Hospital conducted a blood test on Hermanson that showed a high blood alcohol level. As a result, someone reported this information to the police, and the police charged Hermanson with first degree negligent driving and hit and run of an unattended vehicle. Based on this disclosure of his blood alcohol results, Hermanson sued MultiCare and multiple unidentified parties for negligence, defamation/false light, false imprisonment, violation of Hermanson’s physician-patient privilege, and unauthorized disclosure of Hermanson's confidential health information. MultiCare retained counsel to jointly represent MultiCare, Dr. Patterson, and Trauma Trust, reasoning that while Dr. Patterson and Trauma Trust were not identified parties, Hermanson’s initial demand letter implicated both parties. Hermanson objected to this joint representation and argued that MultiCare’s ex parte communications with Dr. Patterson violated Hermanson’s physician-patient privilege. The Supreme Court determined that Dr. Patterson still maintained a principal-agent relationship with MultiCare, and served as the "functional equivalent" of a MultiCare employee; therefore MultiCare could have ex parte communications with the doctor. The nurse and social worker privilege were "essentially identical in purpose" to the physician-patient privilege, making ex parte communications permissible between MultiCare and the nurse and social worker.

Gronquist v. Dep't of Corrections

Docket: 97277-0

Opinion Date: November 12, 2020

Judge: Debra Stephens

Areas of Law: Civil Procedure, Legal Ethics

At issue before the Washington Supreme Court in this matter was whether trial courts had discretion to impose remedial sanctions under RCW 7.21.030(3) in the absence of ongoing, continuing contempt. Derek Gronquist was convicted of violent sexual offenses in 1988. While confined, he participated in a sex offender treatment program until 1991. That same year, former participants of the program brought a class action against the Department of Corrections (Department) to enjoin the release of their treatment files, which contained extensive medical and personal information. Gronquist was not a named class member. The case resulted in a permanent injunction in 1993 that prohibited the Department from releasing certain documents from any class member’s file. Though not a named party, Gronquist fell within the class of persons protected by the injunction. As Gronquist approached his earned early release date, the Department referred him to the King County prosecutor for possible commitment as a sexually violent predator. Under then-current statutory law, the prosecutor sought all records relating to Gronquist’s treatment. Gronquist filed a civil contempt motion against the Department and the King County prosecutor for releasing his treatment records. He also sought an accounting for all breaches of the injunction, an order transferring him to community custody, destruction of all improperly disclosed confidential information, at least $500 a day per contemnor, disqualification of a potential expert witness, and attorney fees and costs under RCW 7.21.030(3). The Department and the prosecutor may have shared some of Gronquist’s files in direct contravention of a valid injunction. On the Department's motion, but before considering Gronquist's contempt motion, the trial court prospectively invalidated the injunction as to Gronquist. The Department them moved to dismiss the contempt motion as moot. The Washington Supreme Court determined courts had discretion to impose remedial sanctions in the absence of contempt, but in this case, Gronquist failed to establish he suffered any compensable losses. With no ongoing contempt, any claim for sanctions here was moot.