government. It also must be said that the passage quoted above from Judge Wilner’s opinion goes beyond the ultimate hold- ing in Post. The ultimate holding in Post was not that MLRPC rules have the force of law, but, rather, that they are statements of important public policy. Post v. Bregman, 349 Md. at 169. To that ex- tent, the Post decision is consistent with Dingle, and supports the conclusion that the Court of Appeals would view ethical statements by the AMA concerning the duties of physicians to patients to be strong and persuasive evidence of public policy. Notwithstanding Dingle and Post,
Judge Wilner’s recent opinion in Buxton v. Buxton, 363 Md. 634, 770 A.2d 152 (2001) raises serious question as to whether the Court of Appeals views the physician/patient relationship as fiduciary in nature. In Buxton, a suit brought by a retarded adult against his step-mother and father alleging misuse, mismanagement and misappropriation of funds, Judge Wilner described at length the distinction between a fiduciary relationship and a confidential relationship.
A fiduciary relationship . . . such as between trustee and ben- eficiary, guardian and ward, agent and principle, attorney and client, partners in a partnership, corporate directors and their corporation, ‘in- volves a duty on the part of the fiduciary to act for the benefit of the other party to the relation as to matters within the scope of the re- lation….
That is not necessarily
the case with respect to persons in a confidential relationship….’ A fiduciary relationship is to be dis- tinguished from a merely confidential relation. A confiden- tial relation exists between two persons when one has gained the confidence of the other and pur- ports to act or advise with the other’s interest in mind. A confi- dential relation may exist although there is no fiduciary relation; it is particularly likely to exist where there is a family relationship or such a relation as that which arises be- tween physician and patient or priest and penitent.
Buxton v. Buxton, 363 Md. at 654-655
(quoting 1 SCOTT & FRATCHER, THE LAW OF TRUSTS ‘ 2.5 (4th ed. 1988)). However, in Buxton, the Court of Appeals was not directly confronted with the issue of the nature of a particu-
Summer 2002 Trial Reporter 13
lar physician/patient relationship and the above quoted passage is dicta. It is of note that Judge Wilner also observed that if, “as a result of the confidential relation- ship, the one in whom trust is reposed acted improperly, the transaction can be undone and the dominant person can be made to… make good the loss.” Buxton v. Buxton, 363 Md. at 655.
Query
whether, under proper circumstances, the Court of Appeals may approve of a cause of action by a patient against his physi- cian for breach of duty of confidentiality. It is clear that no cause of action could be maintained by a patient in Maryland against his physician claiming damages directly for breach of fiduciary duty, given Kann v. Kann, 344 Md. 689, 609 A.2d 509 (1997), in which the Court of Ap- peals stated that breach of fiduciary duty does not exist as an independent tort in Maryland. More recently, in Butler-Tulio v.
Scroggins, 139 Md. App. 122, 774 A.2d 1209, cert. denied, 366 Md. 247, 783 A.2d 221 (2001), the Maryland Court of Spe- cial Appeals gave broad blessing to the notions that patients have no privacy or confidentiality rights, no fiduciary duty is owed by a physician to his patient, and that there is no prohibition of ex parte con- tacts between physicians and their patient’s adversaries in Maryland. While
the record on which the Court of Special Appeals based its decision in Butler-Tulio is not clear, the broad general implications of the Court’s holdings are quite trou- bling.
The plaintiff in the Butler-Tulio case, Charlotte Butler-Tulio brought a medi- cal malpractice action against Dr. Carlton Henry Scroggins, and Prince George’s Hospital Center and alleged that a needle was negligently left in her wrist during a 1991 surgery. After Dr. Scroggins’ sur- gery, the plaintiff complained of continuing pain and required a second surgery in 1992. During the second sur- gery a “metallic splinter” six tenths of a centimeter long and less than one tenth of a centimeter in diameter was discov- ered and removed.
After the second
surgery, the plaintiff complained of weak- ness, abnormal sensations and lack of mobility of her wrist and hand. Butler- Tulio v. Scroggins, 139 Md. App. at 131 - 133. In 1995, the plaintiff was examined by a plastic surgeon, Dr. Ronald Luethke. Dr. Luethke concluded that plaintiff was suffering from an injury to her median nerve, but advised against further surgery. At the end of the examination, the plain- tiff asked Dr. Luethke if he could “support
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