Plaintiff filed this action against the defendants alleging three separate causes of action. Count I alleges that the defendant doctor and his employer breached their fiduciary duty to the plaintiff in disclosing certain medical information to the plaintiff’s employer without his authorization. A second claim contained in Count I of the complaint is a claim for fraudulent misrepresentation, alleging that the defendant physician fraudulently misrepresented to the plaintiff certain facts that caused plaintiff to be terminated from his employment. Count II of the complaint alleges professional negligence against the defendant physician.
At a pre-trial conference on December 16, 1992, this court entered an order precluding expert testimony against the defendants on the theory of medical negligence. It was represented by plaintiff’s counsel at that time that he was abandoning this cause of action in any event. Defendants have filed a motion for summary judgment contending that plaintiff’s other two claims must be dismissed since there are no disputed issues of fact and that defendants are entitled to judgment in their favor as a matter of law.
Plaintiff claims that he suffered a work-related injury in the nature of a lumbar strain on March 24, 1987, while in the course of his employment with Triangle Building Supplies. He further claims that on September 5, 1989, Triangle informed plaintiff that light duty work which had been provided to him was no longer available and
The plaintiff also alleges that, after examining him, Dr. Goren ordered the plaintiff not to return to work until Dr. Goren released him. Plaintiff further claims that, reasonably relying upon Dr. Goren’s orders, he did not return to work on September 5, 1989, and that, therefore, Triangle terminated plaintiff’s employment. He contends that Dr. Goren breached a “fiduciary duty” to him by telling Triangle that plaintiff was able to do regular work as of that date and that he fraudulently misrepresented to the plaintiff that plaintiff could not return to regular work as of that date. Plaintiff alleges that, as a result of Dr. Goren’s actions in this regard, he was terminated from his employment.
Plaintiff’s brief in opposition to defendants’ motion for summary judgment contends that plaintiff may maintain a cause of action against his physician based upon a breach of confidentiality by disclosing medical information about the plaintiff to plaintiff’s employer. We first note that plaintiff has never pleaded a breach of physician/patient confidentiality in his complaint and therefore we may grant summary judgment on that issue against the plaintiff on the face of the pleadings. However, we also believe that, under the circumstances presented in this case, a claim for breach of the physician/patient privilege does not lie. For both reasons, we grant defendants’ motion for summary judgment on this issue.
The Pennsylvania courts have not yet decided the broad issue of whether to recognize a general cause of action
Plaintiff contends that Dr. Goren breached the physician/patient privilege by informing plaintiff’s employer that he was able to do regular work as of September 5, 1989. That is the extent of the alleged breach upon which plaintiff seeks to maintain his cause of action. Although this case does not involve a situation where the plaintiff was suing a third party for injuries sustained, the matter does involve a type of “litigation” in that the plaintiff was receiving workmen’s compensation benefits based upon a reduction of wages because of the light duty work which he was performing for his employer. Therefore, plaintiff’s medical condition was at issue and the plaintiff should have had a reduced expectation of confidentiality/privacy with regard to his medical condition. The Superior Court in Moses, supra, gave substantial weight to the fact that the plaintiff therein had instituted a medical malpractice action against one of the defendants and had thereby placed in issue her medical condition. Mr. Makhoul’s physical condition was just as much an issue in the present case as in Moses, albeit in a different forum.
Plaintiff also alleges a fraudulent misrepresentation claim against these defendants, upon which the defendants have requested summary judgment. Defendants allege that the fraudulent misrepresentation claim is barred by res judicata and/or collateral estoppel since the claim of fraudulent misrepresentation was not accepted as true in the workers’ compensation proceeding brought by the plaintiff. The findings of fact made by the referee in the workers’ compensation case, even if binding upon this court, do not address the issues involved in this case. Defendants also allege that plaintiff’s inability to produce expert testimony is fatal to his claim for fraudulent misrepresentation. However, if plaintiff can prove the fraudulent misrepresentation and that the misrepresentation led
ORDER
Now, July 13,1993, upon consideration of defendants’ motion for summary judgment, and after considering the briefs of counsel and oral argument, it is hereby ordered that the said motion for summary judgment is granted in part and denied in part for the reasons set forth in the accompanying opinion.
It is therefore ordered that this case shall proceed to trial on the allegation of fraudulent misrepresentation only.
