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as an adverse expert witness or consultant is vexing and implicates the numerous, complicated issues that reside at the confluence of the medical care delivery system and the adversarial system of civil litigation, i.e., at the border of the patient’s expectation of privacy and confidentiality and of the defendant’s expectation of open discovery. It is a given that treating physicians can be called or

compelled to testify as fact witnesses in civil litigation in which the plaintiff has made his medical condition an issue and the physician’s care and treatment are relevant to the case. As a fact witness, the physician may freely testify as to the details of his treatment, his observations during treatment and to opinions formulated during the course of treatment. (1) However, as always, the devil is in the details. Can a physician ethically and appropriately meet with his patient’s litigation adversaries on an ex parte basis? Can a physician act as an expert witness, paid or unpaid, for his patient’s litigation adversaries? In a majority of opinions dealing with the issues, the propriety of ex parte communications between treating physicians and defense counsel plays a central role. After all, it is the initial ex parte communication between defense counsel and the physician that affords the opportunity for defense counsel to question the doctor without the patient’s consent or knowledge. Up until 2001, Maryland’s appellate courts had not

directly reached these questions, and defense counsel all too often viewed the vacuum of direct Maryland precedent to constitute a blessing of ex parte contact with plaintiffs’ treating physicians. Ten, with the Court of Special Appeals’ decision in Butler-Tulio v. Scroggins, 139 Md. App. 122, 774 A.2d 1209, cert. denied, 366 Md. 247, 783 A.2d 221 (2001), plaintiffs in Maryland faced the very real prospect of having

their trusted personal physicians actively cooperate with the patient’s litigation adversaries to the express detriment of the patient. In Butler-Tulio, the Maryland Court of Special Appeals gave broad blessing to the notions that, under (then existing) Maryland law, patients have no privacy or confidentiality rights; no fiduciary duty is owed by a physician to his patient; and there is no prohibition of ex parte contacts between physicians and their patient’s adversaries. Te plaintiff in the Butler-Tulio case, Charlotte Butler-

Tulio brought a medical malpractice action against Dr. Carlton Henry Scroggins, and Prince George’s Hospital Center alleging that a needle was negligently left in her wrist during a 1991 surgery. After Dr. Scroggins’ surgery, plaintiff complained of continuing pain, leading to a second surgery in 1992. During the second surgery a “metallic splinter” six tenths of a centimeter long and less than one tenth of a centimeter in diameter was discovered and removed. After the second surgery, plaintiff complained of weakness, abnormal sensations and lack of mobility of her wrist and hand. Butler- Tulio v. Scroggins, 139 Md. App. at 131 - 133. In 1995, 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, plaintiff asked Dr. Luethke if he could “support her claim of negligence” arising from the metallic splinter left in her wrist during the 1991 surgery. Dr. Luethke told 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 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 defendants. Te jury returned 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 fiduciary 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. Tird, allowing a treating physician to testify as an expert witness against a patient in a medical malpractice case, as Dr. Luethke was permitted to do, "threatens the integrity of the judicial process." And fourth, Dr. Luethke's testimony should have been excluded because he participated in ex parte contacts with appellees’ attorneys. Butler-Tulio v. Scroggins, 139 Md. App. at 134 - 135. Te Court of Special Appeals rejected each of those arguments. As to appellant’s first argument, the Court of Special

Appeals found that “no fiduciary duty [exists] in Maryland that would prohibit a physician, treating or otherwise, from giving expert testimony against a patient.” Butler-Tulio v. Scroggins, 139 Md. App. at 138. In dispensing with appellant’s second argument, the Court of Special Appeals found that the trial

38 Trial Reporter / Summer 2009

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