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mony was outweighed by its prejudicial impact on the jury. In dispensing with appellant’s argument, the Court of Spe- cial Appeals gave no consideration to the concept that, because of the confidential nature of the physician/patient relation- ship, the jury may have given undue weight to expert opinions expressed by a treating heath care provider as opposed to a non-treating expert witness. Appellant’s third argument, that allow- ing a treating physician as Dr. Luethke to testify as an expert witness against a pa- tient in a medical malpractice case “threatens the integrity of the judicial pro- cess” is, better put, an argument that allowing such testimony threatens the in- tegrity of the confidential relationship between physician and patient. The medi- cal profession’s


own ethical


pronouncements establish the premise that a duty and an expectation of confi- dentiality lies at the heart of the physician/ patient relationship. Unfortunately, in Butler-Tulio, the Court of Special Appeals rejected that premise without full consid- eration of the consequences of that action. Appellant’s fourth and final argument was that Dr. Luethke’s testimony should have been excluded because of his ex parte


contacts with defense counsel. That ar- gument, which is really at the center of the entire matter, fell of its own weight once the court refused to recognize any reasonable expectation of confidentiality on the part of a personal injury plaintiff with regard to patient/physician commu- nications.


The court’s treatment of this


issue is curious. Initially, the court found that the issue had not been preserved for appeal, but then ruled on the issue none- theless. The court then noted that appellant


does not cite any specific instances of so called ‘ex parte contacts’ be- tween appellees and Dr. Luethke. Instead, appellant asks us to assume such contacts occurred because de- fense counsel knew what Dr. Luethke’s testimony would be with- out deposing him.


That


information, we note, could have been obtained by other legitimate discovery tools.


Butler-Tulio v. Scroggins, 139 Md. App. at 150.


As stated above, the record before the Court of Special Appeals is unknown, so


we cannot discern, and the court did not state, why appellant’s assumption was unreasonable or what other “legitimate discovery tools” could have been em- ployed to discover Dr. Luethke’s opinions absent deposition. However, the court’s reference to “legitimate discovery tools” could provide the seeds of a solution to the problem caused by the conflict be- tween a patient’s reasonable expectation of confidentiality and a personal injury defendant’s need for discovery. As a com- promise, many states require that the opinions of treating physicians only be discovered through the use of such legiti- mate discovery tools as deposition, and not through ex parte communication. In Butler-Tulio, the Court of Special


Appeals created case law that will be ar- gued by some to attempt to gut the confidential relationship between physi- cian and patient. By denying certiorari, the Court of Appeals lost an opportunity to address issues that, absent legislative action, are sure to arise in the future as plaintiffs in personal injury actions strive to find ways to protect their confidential relationships with their physicians while pursuing their legal rights.


Summer 2002


Trial Reporter


15


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