Turncoat Doctors (Continued from page 13)
her claim of negligence” arising from the metallic splinter left in her wrist during the 1991 surgery. Dr. Luethke told the plaintiff that he could not support a claim of negligence and that in his opinion, the “small microsurgical needle” had “little, if any, effect,” on her condition. Although Dr. Luethke offered to see the plaintiff in follow-up, she did not return to see him. Butler-Tulio v. Scroggins, 139 Md. App. at 132 - 133. At trial, Dr. Luethke testified, over
plaintiff’s objection, as an expert witness on behalf of the defendants. The jury re- turned a verdict for the defendants and an appeal was taken. On appeal, Ms. Butler-Tulio contended that the trial court erred in allowing Dr. Luethke to testify as an expert witness on behalf of defendants. In support of her appeal, appellant offered four reasons that the testimony should have been excluded. First, as a “treating physician,” Dr. Luethke violated a fidu- ciary duty arising out of the physician/ patient relationship when he gave expert testimony against his patient. Second, the probative value of Dr. Luethke’s testimony was outweighed by its prejudicial effect. Third, allowing a treating physician to testify as an expert witness against a pa- tient in a medical malpractice case, “threatens the integrity of the judicial pro- cess.” And fourth, Dr. Luethke’s testimony should have been excluded be- cause he participated in ex parte contacts with appellees’ attorneys. Butler-Tulio v. Scroggins, 139 Md. App. at 134 - 135. The grounds stated by appellants, despite somewhat different phrasing, reflect the same issues that have been considered by the courts in the numerous decisions de- scribed above. By rejecting each of appellant’s arguments, the Court of Spe- cial Appeals adopted the minority position
on each of those issues. As demonstrated by the Kitzmiller,
Hammond and Duquette decisions, the courts of most jurisdictions having con- sidered the question have concluded that a fiduciary relationship exists between the physician and patient. However, given the Court of Appeals opinion in Buxton and in other opinions, it is not surprising that the Court rejected the premise that a phy- sician owes a fiduciary duty to the patient. Nonetheless, the rejection of a fiduciary duty on the part of the physician does not necessarily imply that the patient does not have a reasonable expectation of confiden- tiality, i.e., a “confidential relationship” in physician/patient interactions. Unfortu- nately, the appellant in Butler-Tulio, while making the necessary concession that no statutory or common law physician/pa- tient privilege exists in Maryland, apparently failed to draw the distinction between a physician/patient privilege and the physician’s duties of confidentiality. Appellant also apparently conceded that any privilege that may have arisen in the physician/patient relationship was waived by appellant when she put her medical condition at issue. Butler-Tulio v. Scroggins, 139 Md. App. at 136. How- ever, as addressed in Kitzmiller, Petrillo and other decisions, the type of implied waiver that arises when a plaintiff places his medi- cal condition at issue in a civil action should not be construed as an assent to the physician’s discussing that patient’s medical confidences with third parties outside court authorized discovery meth- ods.
Curiously, the Court of Special Appeals questioned whether Dr. Luethke was, in fact, appellant’s treating physician as she only saw him one time, apparently in or- der to find a physician to “support her claim of negligence.” Butler-Tulio v. Scroggins, 139 Md. App. at 138.
This raises an interesting issue. If, in fact, Dr.
Luethke was consulted by appellant as an expert witness, i.e., retained to offer an expert opinion on appellant’s potential cause of action, would he not fall under the rubric of Rule 2-402(e)(2) of the Maryland Rules of Civil Procedure regard- ing expert witnesses not expected to be called to testify at trial? If so, an argu- ment could be made that Dr. Luethke’s opinions were not discoverable without a showing of substantial need.
After rais-
ing the issue, the Court of Special Appeals found it to be of no consequence in light of the lack of a fiduciary duty “that would prohibit a physician, treating or otherwise, from giving expert testimony against a patient.” Butler-Tulio v. Scroggins, 139 Md. App. at 138. The Court of Special Appeals also found appellant’s citation to Md. Health General Code Annot., Section 4-302 unpersuasive, stating that “when a patient puts his or her medical condition at issue in a civil action. . . a health care pro- vider must disclose, in accordance with § 4-306(b)(3), all medical information that forms the basis of the patient’s claim, re- gardless of whether the patient consents to that disclosure.” Butler-Tulio v. Scroggins, 139 Md. App. at 141. This is a very broad interpretation of Section 4- 306(b)(3), even if it is limited to medical malpractice actions.” Under certain circumstances, Section 4-306(b)(3) requires the healthcare pro- vider to disclose, without authorization, all information in a medical record relat- ing to a patient’s health. As previously noted, “medical record” is a statutorily defined term. In Butler-Tulio, the Court of Special Appeals arguably enlarged the statutory definition of “medical record” to include not only the actual contents of a patient’s medical chart, but also all in- formation and thought processes possessed by the physician regarding the patient.” Under the more expansive read- ing of the statute, the treating physician is allowed to provide this information to the patient’s adversaries in an ex parte fash- ion. Given that §’ 4-306(b)(3) provides an imperative to a treating health care provider, the holding of the Butler-Tulio decision allows an argument that treating health care providers are required to par- ticipate in ex parte discussions with their patients’ adversaries, at least in the con- text of medical malpractice cases. Such an outcome was not intended by the Maryland Legislature when it passed the Maryland Confidentiality of Medical Records Act. Appellants second contention was that the probative value of Dr. Luethke’s testi-
14 Trial Reporter Summer 2002
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