Butler Tulio v. Scroggins,
No. 1478 (Md. Ct. Spec. App. June 29, 2001)

A Maryland woman brought a negligence action against her surgeon and the hospital where the procedure was performed. She claimed that the defendants were negligent in leaving a foreign object, a microsurgical needle, in her wrist at the completion of the surgery. Following this procedure, she consulted another physician for a medical evaluation of her continuing discomfort and for possible treatment. During this consultation, the patient asked the physician if he would support her negligence claim against her previous surgeon. The physician refused to do so, and later testified as an expert witness on behalf of the original surgeon. At trial, the jury sided with the surgeon and the hospital and dismissed the negligence claims. The patient appealed.

On appeal, the patient argued that the trial court had erred in permitting the second physician to testify as an expert witness against her. She argued that this testimony should have been excluded because the physician had violated a "fiduciary duty" to the patient, which arose out of the physician-patient relationship. The Court of Special Appeals of Maryland first noted that it was well-established in Maryland that there is no physician-patient privilege outside the mental health area. The court then addressed the patient's "novel" claim related to fiduciary duty. After reviewing all of the authorities cited by the patient, the court concluded that a "physician, treating or otherwise, has no fiduciary duty to refuse to give expert medical testimony adverse to his patient's legal interests." The court affirmed the trial court judgment.