(concurring in part and dissenting in part)
[¶ 46.] I concur with the majority opinion regarding the claims against Fleming and Cummings.
[¶ 47.] I dissent regarding the claims against Dr. Buzzetta.
Claims against Dr. Buzzetta
[¶ 48.] Dr. Buzzetta was a licensed psychologist. He was hired by Larry Frois-tad in the North Dakota custody dispute to conduct an 'evaluation to respond to the allegations of Purdy and the information *437she offered from child therapist Liz Thorn, the counselor that was providing services to Amanda. The circuit judge in North Dakota ordered Dr. Buzzetta to also evaluate Purdy and the child Amanda. Dr. Buzzetta requested Richard Leir, counsel- or, to make some initial evaluations of the parents and the child. Leir did not interview the child. Leir sent his report to Dr. Buzzetta with certain reservations and did not intend his conclusions to be the final recommendation to the court. Dr. Buzzet-ta submitted his report to the North Dakota circuit judge, with the following perceived deficiencies:
1. There was a note in Dr. Buzzetta’s file indicating that Dr. Buzzetta deleted certain “Larry Facts” from the Leir report. Those facts include Larry’s suicide attempts and his sexual history (possible childhood sexual abuse) detailed in the Leir report.
2. Despite his failure to include Larry’s suicide attempts, Dr. Buzzetta reported Purdy’s suicide attempts. This shows his lack of impartiality.
8. Dr. Buzzetta retained that portion of the Leir report concerning sexually transmitted diseases, and recommended to the North Dakota court that all children (four) be tested for sexually transmitted disease. Despite concluding that Larry Froistad was not abusing the children.
4. Dr. Buzzetta knew that the Leir report was not comprehensive in nature.
5. Dr. Buzzetta’s report states that he interviewed the child. However, Dr. Buzzetta’s report contains nothing about Amanda. The report contains a summary of the findings regarding the parents and the following statement, “obviously this evaluation is based on self-report from Larry and Ann in addition to some very limited information from Ms. Liz Thorn, Ann’s Counselor.... ” The report seems to conflict as to whether he did or did not interview the child.
6. Dr. Buzzetta was ordered by the court to evaluate Amanda. If he did interview the child, where is the evaluation?
7. Dr. Buzzetta’s report (page one) specifically states: “The information provided to me by Mr. Leir is included in this report.” .Obviously, this is untrue by virtue of Dr. Buzzetta’s deletion of certain “Larry Facts.”
[¶ 49.] Purdy alleges a claim for the wrongful death of her daughter, Amanda. SDCL 21-5-3 provides a three-year statute of limitation after the wrongful death. Fraudulent concealment tolls a statute of limitation until the cause of action is discovered, or might have been discovered by exercise of diligence.
In the absence of some trust or confidential relationship between the parties there must be some affirmative act or conduct on the part of the defendant designed to prevent, and which does prevent, the discovery of the cause of action.... When, however, a trust or other confidential relationship does exist between the parties, silence on the part of one having the duty to disclose constitutes fraudulent concealment in the absence of any affirmative act.
Hinkle v. Hargens, 76 S.D. 520, 525, 81 N.W.2d 888, 891 (1957); Glad v. Gunderson, 378 N.W.2d 680, 682 (S.D.1985).
[¶ 50.] The majority opinion states that Purdy did not have the prerequisite “trust or confidential relationship” between herself and Dr. Buzzetta. Thus, Dr. Buzzetta did not have a duty to disclose and therefore his silence could not constitute fraudulent concealment. I disagree.
[¶51.] This Court has previously held that whether fraudulent concealment has *438occurred is a question of fact. McGill v. American Life and Casualty Ins. Co., 2000 SD 153, 619 N.W.2d 874. There is a jury question as to the existence of fraudulent concealment by virtue of the following:
1. There existed a “trust or confidential” relationship between Purdy and Dr. Buzzetta, imposing a duty to disclose on Dr. Buzzetta.
2. Dr. Buzzetta had an obligation of honesty, impartiality, fairness, and candor to the parties and the court, imposing a duty to disclose on Dr. Buzzetta.
Even if the above “relationships” are unpersuasive, then there is still a jury question as to the existence of fraudulent concealment, by virtue of Dr. Buzzetta’s professional code of conduct, and his affirmative acts.
3. Dr. Buzzetta was bound by his professional ethical code of conduct providing for a duty of substantial professional contact, a duty to disclose all pertinent information, and an obligation not to use fraud, misrepresentation, or deception in reporting the results of psychological evaluations or services. See AASPB Code of Conduct, May 1991, American Association of State Psychology Boards; SDAR 20:60:07:01 (Psychologists Code of Ethics).
4. Dr. Buzzetta’s intentional deletion of certain “Larry Facts” was an affirmative act for jury determination as to fraudulent concealment.
Trust or Confidential Relationship between Dr. Buzzetta and Purdy
[¶ 52.] The circuit court in North Dakota ordered Dr. Buzzetta to also evaluate Purdy and the child, Amanda. In Hinkle, supra, our Court held that where there is a “trust or confidential relationship” then silence on the part of one having the duty to disclose, constitutes fraudulent concealment. The majority opinion states that the relationship between Purdy and Dr. Buzzetta was not confidential in nature because it was a court-ordered relationship and not voluntary on Purdy’s part. Further, the majority opinion states that Pur-dy knew that the information obtained during the interview with Dr. Buzzetta would not be kept confidential.
[¶ 53.] A confidential relationship is not restricted to any particular association of persons. It exists whenever there is trust and confidence, regardless of its origin. Such a confidential relationship exists between two persons when one has gained the confidence of the other and purports to act or advise with the other’s interest in mind. Kase v. French, 325 N.W.2d 678, 680 (S.D.1982). The mere fact that the information obtained was court-ordered and would be used in a court proceeding does not destroy this confidential relationship. If the majority opinion is correct, then whenever a court-appointed (ordered) expert is named in a custody hearing, the relationship between the expert and his patient will not be confidential. This would allow the expert to commit fraud, misrepresentation, and/or deception with no duty to disclose all pertinent and relevant information to the court.
[¶ 54.] If the relationship between Dr. Buzzetta and Purdy is not one of “confidentiality” then it is certainly one of “trust.” Notice the phrase “trust or confidential relationship” is in the disjunctive. In Webster’s New World Dictionary, Third College Edition, the word “trust” is defined as, “firm belief or confidence in the honesty, integrity, reliability, justice, etc. of another person; faith; reliance.” If Dr. Buzzetta performs a psychological evaluation of Purdy there exists some sort of relationship. I believe it includes a relationship of “trust,” which denotes fairness, impartiality, honesty, candor, and justice. *439It does not mean Dr. Buzzetta can be selective in the information contained in his report, to the detriment of Purdy. Dr. Buzzetta had a duty to disclose. His silence could constitute fraudulent concealment and the merits of the claim should be determined by a jury.
Dr. Buzzetta’s Obligation to the Parties and the Court
[¶ 55.] Because he was ordered by the circuit court in North Dakota to perform a psychological evaluation on the whole family, Dr. Buzzetta could be considered a court appointed expert. As such, Dr. Buz-zetta had an obligation of trust, impartiality, candor, and fairness to the parties and the court. By virtue thereof, Dr. Buzzetta had the duty to disclose. His failure to do so could constitute fraudulent concealment and the merits of the claim should be determined by a jury.
[¶56.] Pursuant to ND St Rev Rule 706, the court may select its own expert, with the consent of the expert witness. The rule further provides, “A witness so appointed shall advise the parties of the witness’ findings, if any....” ND St Rev Rule 706. Pursuant thereto, Dr. Buzzetta had a duty to disclose all the relevant and pertinent information concerning his evaluations, including the findings of Leir. This obligation extends to both the parties and the court. How else can the parties receive a fair and impartial evaluation? How else is the judge to make an informed and fair determination of custody?
[¶ 57.] Pursuant to ND St Rev Rule 705 the expert may testify in terms of opinion and give reasons therefore without first testifying to the underlying facts, unless the court requires otherwise. ND St Rev Rule 705. Further, the expert may be required to disclose the underlying facts or data on cross-examination. Id. At first glance one might think that the court or Purdy had the opportunity to ask for the underlying facts and it was not done. However, we must remember that Dr. Buzzetta intentionally deleted the aforementioned pertinent facts from his report; therefore, these were not underlying facts or data of his report subject to disclosure on cross-examination. In addition, given his lack of disclosure it is unclear if Dr. Buzzetta would have revealed this information during his cross-examination. In any event, this would be for a jury to decide.
[¶ 58.] The aforementioned North Dakota statutes require disclosure of all the expert’s findings. The court is also entitled to a full disclosure. 31A AmJur2d, Expert and Opinion Evidence, § 10 (2002) provides: “An expert witness appointed by the trial court to obtain disinterested and unbiased testimony, ... is an officer of the court and does not appear as the witness of either party.” Recently, this Court dealt with an attorney (officer of the court) and his obligation for full disclosure. In Re Discipline of Wilka, 2001 SD 148, 638 N.W.2d 245. The Court recognized:
Clearly the requirement of candor towards the tribunal goes beyond simply telling a portion of the truth. It requires every attorney to be fully honest and forthright. We cannot over emphasize the importance of attorneys in the State being absolutely fair with the Court. Every court has the right to rely upon an attorney to assist it in ascertaining the truth of the case before it.
Id. ¶ 15. Does the obligation and duty of Dr. Buzzetta, under these circumstances, allow him to be selective in what he informs the court, to conceal relevant and pertinent information, to be partial, to fail to follow the court’s order, to mislead the court, and to violate his own professional code of conduct? Certainly not. Dr. Buz-zetta’s duty and obligation was to be fair and impartial with all those evaluated and *440to disclose all information relevant and pertinent to a custody hearing so the parties could receive fair and impartial consideration and also assist the court in ascertaining the truth. This requirement allows the judge to make an intelligent, informed, and fair determination of custody.
[¶ 59.] Dr. Buzzetta’s obligation to the parties and to the court is an independent foundation for fraudulent concealment irrespective of any question of a “trust or confidential” relationship.
[¶ 60.] Dr. Buzzetta was hired as an expert by Larry Froistad, and ordered by the court to conduct an evaluation as an expert. This is unusual but there are no facts in the record to show its proper perspective. Even if Dr. Buzzetta was some sort of hybrid expert witness, can you question an obligation of full disclosure? Witnesses are sworn to tell the whole truth not suppress the truth. Whether this conduct constituted fraudulent concealment is for a jury to decide. Ethical Code of Conduct for Dr. Buzzetta
[¶ 61.] If we assume that we are absent a “trust or confidential” relationship, Dr. Buzzetta had a duty to disclose, pursuant to his ethical code of conduct. SDAR 20:60:07:01 provides that the code of ethics for licensed psychologists is the AASPB Code of Conduct, May 1991. Pertinent provisions follow:
III. A. 5 (page 8-9). Sufficient professional information, provides: A psychologist rendering a formal professional opinion about a person, for example about the fitness of a parent in a custody hearing, shall not do so without direct and substantial professional contact with or a formal assessment of that person.
III. H. 3 (page 17). Reservations concerning results, provides: The psychologist shall include in his/her report of the results of an assessment procedure any deficiencies of the assessment norms for the individual assessed and any relevant reservations or qualifications which affect the validity, reliability, or other interpretation of results. III. I. 2 (page 18). Use of fraud, misrepresentation, or deception, provides in part: The psychologist shall not use fraud, misrepresentation, or deception ... in providing psychological service, in reporting the results of psychological evaluations or services, or in conducting any other activity related to the practice of psychology.
[¶ 62.] In City of Aberdeen v. Rich, 2001 SD 55, 625 N.W.2d 582, this Court held that fraud and deceit include not only affirmative acts, but also acts of omission. The necessary relationship is satisfied since the professional code of conduct extends to all those Dr. Buzzetta evaluated or treated. Dr. Buzzetta had a duty to disclose.
[¶ 63.] I believe it is a jury question whether Dr. Buzzetta violated the above code of conduct by possibly not interviewing the child; by not providing a report on the child; by not conducting a more comprehensive evaluation of the parents; by providing detrimental information about the mother and not providing similar information about the father; by omitting relevant and pertinent information about the father; and, by stating that his report contained the information provided by Leir.
[¶ 64.] The professional code of conduct is an independent foundation for fraudulent concealment irrespective of any question of a “trust or confidential” relationship.
Dr. Buzzetta Committed an Affirmative Act
[¶ 65.] If we assume that we are absent a “trust or confidential” relationship, *441“fraudulent concealment” must consist of some affirmative act or conduct on the part of the defendant designed to prevent, and which does prevent, the discovery of the cause of action. Strassburg v. Citizens State Bank, 1998 SD 72, 581 N.W.2d 510. Dr. Buzzetta’s failure to disclose pertinent information is identified by his writing, “deleted certain Larry Facts.” This was an affirmative act and continued to be so. It was also an affirmative step to prevent Purdy from discovering her cause of action. If this constitutes fraudulent concealment is a question for the jury to decide.
[¶ 66.] The majority opinion further states that even if Purdy’s contentions are correct she had the necessary documents that put her on notice of the fraud. Therefore, the fraud was discoverable as a matter of law. This purported notice of the discoverable fraud consisted of Purdy having access to Dr. Buzzetta’s report, her taking no action to determine if any other omissions existed, and never contacting Dr. Buzzetta to discuss the report.
[¶ 67.] Having a copy of Dr. Buzzetta’s report would not show the intentional deletions by Dr. Buzzetta. Requiring Purdy to go to Dr. Buzzetta to discuss the report and presumably ask him if there were any omissions is equally disconcerting. How reasonable is it to expect a lay person to walk into a doctor’s office and challenge him regarding his report? Further, if Dr. Buzzetta felt no compunction about deleting certain “Larry Facts” and concealing them from the judge, what makes a reasonable person think Dr. Buzzetta would reveal the fraudulent concealment to Pur-dy? Her lawsuit was commenced on March 20, 1999. The note in Dr. Buzzet-ta’s file was not discovered until September 1999, pursuant to a motion to order the disclosure. To hold that Purdy knew of the existence of omissions because she had Dr. Buzzettas report, or that she should have discovered the note earlier, as a matter of law, is untenable. It should be a jury question.
CONCLUSION
[¶ 68.] It is unfortunate that Dr. Buz-zetta is now deceased. He may very well have answers to the aforementioned perceived deficiencies on his part. However, we take the record as it is. In a summary judgment motion, all reasonable inferences drawn from the facts must be viewed in favor of the non-moving party. Viewing the facts in Purdy’s favor creates a jury question of fraudulent concealment that would toll the pertinent statute of limitations and allow Purdy to pursue her cause of action for wrongful death.
[¶ 69.] Therefore, I respectfully dissent as to Issue Four.