dissenting:
The majority has focused on whether there has been a violation of fiduciary duty under section 523(a)(4). Although a fiduciary relationship attends the furnishing of professional services by doctors, that is not the problem here.
The issue essentially is whether there was a tortious invasion of privacy. A patient is entitled to privacy not only by statute, Cal.Civ.Code § 56.10, but also by virtue of specific understandings, attaching to the relationship of doctor and patient as developed from ancient times.
The doctor obtained the consent of the patient to divulge aspects of treatment for “instructional or professional” purposes. The consent language does not come close *240to authorizing Karlin to be an advertisement. The doctor breached this understanding by releasing the information for his private economic gain. The evidence that he knew the difference is clear. After he had violated the agreement, he attempted to obtain the consent of the patient for having done what he was not supposed to do. He intentionally violated the patient’s right to privacy by releasing the information to Ms. Hirsch for purely self-promotional purposes. He had intentionally ventured on to a slippery slope. That he tried to do what he could to arrest his fall should not exculpate him from the consequences of his intentional wrong.
The doctrine of In re Cecchini, 780 F.2d 1440 (9th Cir.1986) is applicable. That he did not intend the harm does not render the tort unwillful or nonmalicious. This is not simply “a question of negligence” as stated by the trial court. The doctor intended to release the information for his own private ends, and, pursuant to this intention, placed it into the hands of a publicist who published before the doctor could reverse what he had intentionally set in motion.
The appellee’s action was an invasion of privacy and a willful and malicious injury under California law. See Cal.Civ.Code § 3344 (“Any person who knowingly uses another’s ... photograph ..., in any manner, ... for purposes of ... advertising or selling, or soliciting purchases of ... services, without such person’s prior consent, ... shall be liable for any damages sustained by the person or persons injured as a result thereof.... Punitive damages may also be awarded to the injured party or parties..."; Briscoe v. Reader’s Digest Ass’n 4 Cal.3d 529, 93 Cal.Rptr. 866, 483 P.2d 34 (Cal.1971) (complaint for invasion of privacy by publishing plaintiff’s name in connection with criminal activity eleven years after rehabilitated plaintiff’s involvement stated a cause of action under the protection for privacy in section 1 of article I of the California Constitution, which was directed inter alia against the improper use of information properly obtained for a specific purpose); see also Vassiliades v. Garfinckel’s, 492 A.2d 580 (D.C.1985) (although plastic surgeon had plaintiff patient’s consent to use her “before” and “after” pictures to help other patients, evidence of his use of her photographs on television and in a department store was sufficient to support a claim for invasion of privacy, i.e. unreasonable public disclosure of private facts, citing the Restatement (Second) of Torts § 652(A); S.D. Warren & L.D. Brandéis, The Right to Privacy, 4 Harv.L.Rev. 193 (1890); W. Prosser, Law of Torts § 117 (4th ed. 1971)).
I respectfully dissent.