CHAPTER VI.

MALPRACTICE.

DEFINITION.—MALPRACTICE may be defined to be—

1st. Wilful acts on the part of a physician or surgeon toward a person under his care, by which such person suffers death or injury;

2d. Acts forbidden by express statute, on the part of a physician or surgeon, toward a person under his care, by which such person suffers death or injury;

3d. Negligent acts on the part of a physician or surgeon in treating a patient, by means of which such patient suffers death or unnecessary injury.

These various divisions will be considered in the order in which they are above set forth.

=Wilful Malpractice.=—The cases which fall within the first two divisions of this definition are such acts as render the medical man liable to punishment in a criminal prosecution, and may not necessarily, although in some instances they may, constitute grounds of liability in a civil suit against him.

As examples of the first class of cases may be cited those instances, happily not numerous in the annals of the profession, where a physician or surgeon when treating a female patient has had carnal connection with her, representing that he was using that method of treating her to cure her disease. Such a case was Reg. _v._ Case, 1 Eng. Law & Eq., 544 (s. c., 1 Den. C. C., 580).[186]

_Honest Intent no Defence in Such Cases._—In Reg. _v._ Reed, 1 Den. C. C., 377 (s. c., 2 Car. & K., 967), it was contended as a defence that the defendant really believed that he was curing his patient by treating her in this extraordinary way. The Court, per Wildes, C. J., brushed aside this contention with scorn, saying: “The notion that a medical man may lawfully adopt such a method of treatment is not to be tolerated in a court of justice;” and in this case and in others, convictions have been sustained for the crime of rape or of attempting to commit rape.[187]

Another example of wilful malpractice would be wilful neglect of a patient by his medical attendant, who became intoxicated voluntarily, though this will generally come under the second subdivision, as most states and countries have enacted statutes making it a criminal offence to practise medicine or surgery when intoxicated.

=Acts Forbidden by Statute.=—Within the second subdivision of the definition, or acts declared unlawful by statute, fall the cases of committing or attempting to commit an abortion, and cases of prescribing for or treating a patient by one voluntarily intoxicated. If the abortion is attempted without the knowledge or consent of the woman, and under the pretence of performing a necessary operation upon her to cure disease, undoubtedly the physician would be liable to a criminal prosecution by the State for the offence of committing an abortion and to civil action by her to recover damages. If the abortion was committed with her consent, while she would have no right of action against him for damages, he would be liable to criminal prosecution under the statute.

_Abortion Not a Crime by the Common Law._—At common law it was not a crime to commit an abortion with the mother’s consent if the child had not quickened. In Mitchell _v._ Com., 78 Ky., 204 (s. c., 39 Am. Reports, 227), the Court, per Hines, J., says: “After a patient investigation we are forced to the conclusion that it was never called a punishable offence at common law to produce, with the consent of the mother, an abortion prior to the time when the mother became quick with child. It was not even murder at common law to take the life of the child at any period of gestation, even in the very act of delivery.” See also Evans _v._ People, 49 N. Y., 86.

The inhumanity and danger to society of this rule became manifest at a very early period, and both in England and in this country statutes were adopted, varying somewhat in the degree and kind of punishment and in the nomenclature of the crime, but all of them making the offence of committing an abortion, no matter at what stage of gestation, a crime.[188]

_The Common-Law Doctrine Criticised._—Professor Elwell in his valuable work on “Malpractice, Medical Evidence and Insanity,” pp. 250, 251, makes the following remarks upon this subject: “The idea once existed quite generally, and it still exists to some extent, that there is no offence in destroying the embryo or fœtus before there is a manifest knowledge of life by the mother, derived from motion of the child called ‘quickening.’ How absurd to suppose that there is no life until the mother can feel the muscular motions of the child! As well might we deny the vitality of the blood because it cannot be felt. The muscular tissues, and even the bones to which they are attached, must have some degree of substance before there can be motion, and of course this development depends upon life. Though this foolish notion is now fully exploded in medicine, it still lingers in the popular mind, and doubtless leads to much crime. The life of the fœtus or embryo immediately after conception is just as positive physiologically as at any subsequent period. Quickening being an incident or sign in the course of development of the fœtus, it indicates not the commencement of a new state of existence, but only a new manifestation of pre-existing life.... It is uncertain in its appearance, sometimes coming on at three months, sometimes at six months, and sometimes not at all.”

_Legal Definitions of Terms, “Quick with Child,” etc._—In Evans _v._ People, 49 N. Y., 86, following R. _v._ Wycherly, 8 C. & P., 262, it was held that a woman is “quick with child” from the period of conception after the commencement of gestation, but is “pregnant with quick child” only when the child has become “quickened in the womb.” This distinction has been discussed in State _v._ Cooper, 2 Zab., N. J., 52, and since the Evans case, the same court in New York State has held that the expression, “woman with child,” means “pregnant woman.” Eckhardt _v._ People, 83 N. Y., 42 (s. c., 38 Am. Rep., 462).

_Death of Child by Abortion._—If, in attempting to produce an abortion, the child is caused to be born alive but before the end of the period of gestation, and when it is not capable of sustaining life, and it dies, the person producing the abortion and bringing the child into the world at this time and in this manner is guilty of murder. Wharton’s Crim. Law, sec. 942; Rex. _v._ West, 2 Cox Crim. Cases, 500; Com. _v._ Brown, 14 Gray, Mass., 419.

_Death of Mother by Abortion._—So also where in consequence of producing an abortion the death of the mother occurs, the person producing the abortion is guilty of murder at common law. 4 Blackstone’s Com., 201; 1 Bishop’s Crim. Law, 328. In some of the States, however, these offences are declared to be only manslaughter.

Further consideration of the subject of abortion will be had under that title in another part of this work.

_Statutes Generally Except Abortions Necessary to Save Life._—It should be noted here, however, that nearly all the statutes which define and punish the crime of abortion, or the crime of manslaughter or murder committed in consequence of abortion, declare that when it is necessary to produce a miscarriage in order to save life, the act of doing so is excepted from the effect of the statute.

=Negligent Malpractice.=—Under the third subdivision of the definition, viz., when by reason of the negligent acts on the part of the physician or surgeon the patient suffers death or unnecessary injury, may be placed the most numerous cases of malpractice, according to the generally accepted meaning of the term.

_Criminal Liability for Negligent Malpractice._—It is manifest that not every degree of negligence which causes death or injury ought to render the physician or surgeon liable to indictment and punishment for a crime. The general theory of the criminal law is based upon the doctrine that in order to constitute a crime there must be either an intent to do the wrong, or such a degree of negligence in the performance of a given act as to supply the place of the intent to do wrong, and require punishment for the protection of society, upon the ground that the carelessness of the defendant is so great as to make it necessary and proper to punish him, in order to deter others from following his example.

_Doctrine of Leading Case of Com. v. Thompson._—In Com. _v._ Thompson (6 Mass., 134), Parsons, C. J., observes: “There was no evidence to induce the belief that the prisoner by his treatment intended to kill or injure the deceased and the ground of express malice must fall. It has been said that implied malice may be inferred from the rash and presumptuous conduct of the prisoner in administering such violent medicines. Before implied malice can be inferred, the judges must be satisfied that the prisoner by his treatment of his patient was wilfully regardless of his social duties, being determined on mischief.... To constitute manslaughter, the killing must have been the consequence of some unlawful act. Now there is no law which prohibits any man from prescribing for a sick person with his consent; and it is not a felony, if through his ignorance of the quality of the medicine prescribed, or of the nature of the disease, or of both, the patient, contrary to his expectations, should die. The death of a man killed by voluntarily following a medical prescription cannot be adjudged felony in the party prescribing unless he, however ignorant of medical science in general, had so much knowledge or probable information of the fatal tendency of the prescription that it may be reasonably presumed by the jury to be an act of wilful rashness at least, and not of honest intention and expectation to cure.”

_The Doctrine of the Thompson Case Too Broad._—This lax statement of the law, made by the learned chief justice in this case, has been much doubted and criticised. It appears to be unsound in the length to which it goes in requiring, in order to constitute criminal liability, what may be termed excessive gross carelessness or wilful gross carelessness. It apparently runs counter to the prevailing opinions of the English judges, and to the later decisions of the courts in the United States, although it is followed and approved in Rice _v._ The State, 8 Mo., 561.

In Rex _v._ Long (4 Car. & P., 308-310), Park, J., said: “I call it acting wickedly when a man is grossly ignorant and yet affects to cure people, or when he is grossly inattentive to their safety.”

So in Rex _v._ Spiller (5 Car. & P., 353), the Court said: “If a person, whether a medical man or not, professes to deal with the life and health of another, he is bound to use competent skill and sufficient attention; and if he causes the death of another through gross want of either he will be guilty of manslaughter.”

Bishop, in his work on Criminal Law, lays down the rule that not every degree of carelessness renders a practitioner liable to criminal prosecution, and that it must be gross, or, as more strongly expressed, “the grossest ignorance or most criminal inattention.”[189]

Nevertheless he quotes with approval (2 Bishop Crim. Law, 264) the remark of Willes, J., that a medical man is taking a leap in the dark if he knew he was using medicines beyond his knowledge; and also the remarks of Bayley, J., in Rex _v._ Simpson (1 Lewin, 172), who said in that case: “I am clear that if a person not having a medical education, and in a place where a person of a medical education might be obtained, takes it upon himself to administer medicines which may have an injurious effect, and such medicines destroy the life of the person to whom they are administered, it is manslaughter. The party may not mean to cause death, or the medicine may produce beneficent effects, but he has no right to hazard medicine of a dangerous tendency when medical assistance can be obtained. If he does, he does it at his peril.”[190]

_Gross Negligence Defined._—In general it may be stated that gross negligence is necessary to constitute criminal liability, but this may be predicated upon, or inferred from, such want of ordinary care and skill as shows gross ignorance, or such want of attention as indicates wilful disregard of the well-known laws of life and health.[191]

_Gross Negligence Resulting in Injury a Misdemeanor._—It has also been held that although death does not but injury does ensue, as the result of gross negligence or inattention, that constitutes a misdemeanor punishable criminally.[192]

_In Determining Degree of Negligence Circumstances and Conditions Govern._—It should be noted, however, that the circumstances and conditions attending the act of alleged criminal malpractice should be given much weight. So also should due weight be given to the advancement of knowledge and education in the world in general, and in the medical profession in particular. In an early English case, one of the judges remarked that not as much knowledge and skill could be expected of a surgeon or physician in a sparsely settled country district as in a city, and that he was at a loss to know what degree of knowledge and skill should be required of such a person. But in Gram _v._ Boener, 56 Ind., 447, Worden, J., said: “It seems to us that physicians or surgeons practising in small towns, or in poorly or sparsely settled country districts, are bound to possess and exercise at least the average degree of skill possessed and exercised by the profession in such localities generally. It is not true, as we think, to say that if a physician and surgeon has exercised such a degree of skill as is ordinarily exercised in the particular locality in which he practises, that would be sufficient. There might be but few practising in the given locality, all of whom might be quacks, ignorant pretenders to knowledge not possessed by them, and it would not do to say that because one possessed and exercised as much skill as the other, he could not be chargeable with the want of reasonable care and skill.”[193]

_Unlicensed Practitioner Causing Death Guilty of Manslaughter._—Since the adoption by most civilized states and countries of the salutary practice of regulating by statute the practice of medicine and surgery, and forbidding persons not duly licensed from practising, and making it a misdemeanor to violate any of these statutes, it is clear that any person not having the requisite medical education and a license, who attempted to administer drugs and medicines or to perform operations, and through want of ordinary knowledge and skill caused the death of another, would be held guilty of manslaughter, because he brought about the death while he himself was engaged in a violation of the law. In some states where no discrimination in this respect is made between misdemeanors and felonies, the crime would be murder, punishable by death; and it has always been the law that an empiric or quack holding himself out as a regular physician is bound to have and exhibit the degree of skill and care which he professes, and will be strictly held to the standard of skill of educated and licensed medical men.[194]

As to the legal meaning of the term “ordinary care and skill,” and the rules of evidence applicable in cases of malpractice, a full discussion will be had below, when considering the subject of civil liability for malpractice.

CIVIL LIABILITY FOR MALPRACTICE.

Any person holding himself out to be a physician or surgeon, or any physician or surgeon, who is guilty of malpractice, is liable for damages, to be recovered in a civil action, instituted by the person injured, or by those having a legal right to such person’s services. This is so whether the injured person actually employed the defendant to prescribe or treat him, or not. The liability flows out of the relationship, without regard to the element of employment, and it may result from negligence in treatment, or in prescribing, or in giving information and instructions to the patient as to how to take care of himself when under treatment. The rules of law applicable to the duties of a physician to his patient are stated and the authorities supporting them cited in Chapter IV. of this work.[195]

=Ordinary Care and Skill Only Required.=—The leading cases in America on the subject of civil liability for malpractice are: Leighton _v._ Sargent, 7 N. H., 460, and Carpenter _v._ Blake, 60 Barb., 485 (s. c. on appeal, 75 N. Y., 12). In the former case the Court said: “In a science encumbered with so many sources of error and difficulties, it is obvious what cause we have for proceeding with the utmost caution, and for advancing from step to step with the greatest circumspection. It is in consideration of those peculiar difficulties that beset and encompass the physician and surgeon, that all enlightened courts have held that but ordinary care and skill shall be required of them, and that mere errors of judgment shall be overlooked, if the general character of treatment has been honest and intelligent, and that the result of the case shall not determine the amount of the responsibility to which he is held; and that when unskilfulness or negligent treatment of his patient is charged to a surgeon, it is not enough to show that he has not treated his patient in that mode or has not used measures which in the opinion of others, though medical men, the case required; because such evidence tends to prove errors of judgment, for which the defendant is not responsible, as much as it goes to prove a want of reasonable skill and care for which he may be responsible. Alone it is not evidence of the latter, and therefore a party must go further and prove, by other evidence, that the defendant assumed the character and undertook to act as a physician without the education, knowledge, and skill which entitled him to act in that capacity.”

In Carpenter _v._ Blake, upon the last appeal (75 N. Y., 12), it was said that the reasonable ordinary care and diligence which the law requires of physicians and surgeons is that which persons engaged in the same general line of practice have and exercise in like cases.[196]

_Story’s Statement of the Rule._—Story in his work on Bailments, p. 433, with his usual felicitous method of statement says: “In all cases where skill is required it is to be understood that it means _ordinary_ skill in the business or employment which the bailee undertakes; for he is not presumed to undertake for extraordinary skill, which belongs to a few men only in his business or employment, or for extraordinary endowments or acquirements. Reasonable skill constitutes the measure of the engagement in regard to the thing undertaken.”

_Occult Influences Should be Considered by Lawyers and Judges._—In this connection it should be borne in mind by lawyers and judges, that in the case of a physician treating disease, or a surgeon repairing an injury, occult influences frequently play a most important part. Professor Elwell in his work on Malpractice, etc., p. 25, lays great stress on this element of uncertainty. He says: “In the case of physicians, surgeons, attorneys, etc., another and important element besides skill enters into the result, and for this reason the degree of responsibility is to a certain extent and in a manner indicated and influenced. This important element is the operation of causes and influences over which the practitioner has but little or no control. They are occult, and no human foresight is able to anticipate them before they have completely deranged and materially interfered with his plans by bringing about a different result than that confidently depended upon.”[197]

_Change and Advancement in Medical Knowledge also to be Considered._—It should on the other hand be clearly understood that the constant change and improvement which are going on in medical and surgical education, in the discovery of new remedies and new methods of treatment, and in the invention of new instruments, tend constantly to elevate the average skill and intelligence of the profession, and with them the standard by which the courts will determine liability for negligence. What would have been, but a few years ago, fully recognized by the courts as ordinary skill in the treatment of disease and the performance of operations, would now be regarded as antiquated and less than ordinary skill, because of the advancement in the knowledge of means which can be devoted to the treatment of disease and injury.[198]

We have already seen that what is the degree of skill to be required of one practising in a small town or a country district sparsely inhabited, and what is required in the case of a city practitioner, may differ to some extent with the circumstances. Quacks and pretenders, however, must be judged by the standard of regular practitioners.[199]

=Degree of Care and Skill a Mixed Question of Law and Fact.=—What constitutes reasonable care and skill is a mixed question of law and fact, like any other question of negligence. Where the evidence is undisputed and no conflicting inferences can be drawn from the facts presented, it is the duty of the Court to determine whether or not there is sufficient proof of want of ordinary care and skill to be submitted to the jury. Where, however, the evidence is conflicting on that point, or the inferences to be drawn from the facts established might be differently drawn by different men having the same opportunity for observation, and the same circumstances before them, it is for the jury to say whether or not the defendant has exercised reasonable care and skill, guided by proper directions from the Court as to the measure of skill required. This involves the question as to how far the practitioner is bound to be familiar with the methods, appliances, drugs, and methods of treatment of his profession in general.[200]

_Experimentation Not Permissible._—Experimentation, whether upon charity patients or pay patients, is equally prohibited by well-settled rules of law. In other words, a departure from known methods of treatment for the purpose of or by way of trying unknown remedies, or operations not usually adopted by the profession, if an unfortunate result occurs, renders the defendant liable (McNevins _v._ Lowe, 40 Ill., 209).

MEASURE OF DAMAGES.

The measure of damages in cases of malpractice may vary with the kind of malpractice. In the case of wilful malpractice, the element of gross negligence justifies punitive or retaliatory damages, in those States where any such damages are allowed. That is, damages which will not only compensate for the injuries inflicted, but which will, by punishing the wrong done, tend to repress similar acts in the future. The tendency of the courts and of legal authority of the present time is, however, to limit as often as possible the cases in which punitive damages are allowed, upon the theory that if a grossly negligent act is committed it will require criminal prosecution, and that the strong arm of the State should be invoked to punish the wrong, rather than to line the pocket of the injured person.

On the other hand, in cases of malpractice, damages for want of ordinary care and skill are recompensed as in any other cases of negligence. They may include loss of time of the patient, inability to earn his living, such sum as the jury thinks is reasonable to be given as a compensation for the extra pain and suffering, and, where the injury is permanent, such further sum as will indemnify the patient for the injury or deformity which he may suffer on account of the defendant’s neglect. Citation of authority upon this question of damages is almost unnecessary.[201]

_Liabilities of Partners, etc._—It has been held that where two physicians were partners, and one of them committed an act of negligent malpractice, both were liable in a civil court for damages.[202]

But the declarations of the partner who is guilty of the negligent act, made as to the act committed, and in the absence of the other partner, are not admissible as against the other partner. And so also is the rule as to declarations of the partner who committed the act after its commission as to the propriety of the treatment, and opinions expressed by him in reference thereto.[203]

It has also been held that one surgeon who recommends the employment of another during his absence from town is not liable for acts committed during his absence.[204]

_Suits for Injuries to Married Women and Minor Children._—When the person injured is a married woman, her husband may sue for loss of services on account of malpractice, and when the injured person is a minor child the parent may sue as in any case of negligence. A third person, such as the husband of a woman injured by malpractice, or the father of minor child so injured, can only recover the value of the services thereby lost, and in some cases the enhanced expense of medical attention and nursing thereby rendered necessary.

=Inspection of the Injured Person at the Trial—Before Trial Improper.=—In an action in which the injury is to a portion of the body which may be seen, such as the shortening of a limb on account of improper treatment of a fracture, the limb may be exhibited to the jury.

It has been much discussed whether the defendant in a malpractice or other negligence case can compel the plaintiff to permit his person to be examined by physicians before trial, to enable the defendant to know the full extent of the injury so far as it is perceptible. In the latest cases the examination of plaintiff before trial was not allowed.[205]

In 1877 the Supreme Court of Iowa in the case of Schroder _v._ C., R. I. & P. R. R. Co., 47 Iowa, 375, held that the court had inherent power and jurisdiction to compel the plaintiff to submit to such an examination.

This decision has been followed by the courts of several of the western and southern States, while in others the power has been denied. These cases will be found fully collected in Roberts _v._ O. & L. C. R. Co. and in U. P. R. R. Co. _v._ Botsford cited above.

The ground of the decision of the United States Supreme Court and of the New York Court of Appeals seems to be, that in the absence of legislative provision permitting a court to order such an examination, it has no inherent power to do so, and did not derive any such powers from the common-law courts of England, which never had exercised such powers.

In some of the cases which deny the right to compel such examination, it is claimed that if such a statute was passed as would confer upon the courts power to compel such an examination, the statute would be unconstitutional, and much is said in those decisions about the sacredness and immunity of the person. It seems difficult, however, to understand why such statutes should be considered as differing in any respect from statutes permitting orders for the examination of witnesses and parties before trial, or for the discovery and inspection of books and papers, and the like, which statutes have been enacted for many years and have never been held to be unconstitutional. Surely an honest suitor having a just claim for damages for personal injuries would not object to such an examination, because the result would often strengthen his case, while a dishonest suitor having a false and unmeritorious claim ought to be exposed and have his false claims defeated, in the interests of justice and truth. On the other hand, a suitor who was honestly mistaken in his belief that he had been disfigured or injured by an act of malpractice might often discover his mistake, and be saved the annoyance and expense of defeat after a trial in open court.

Some of the most frequent cases of alleged malpractice, brought before the courts, are those in which it is claimed that a fractured limb has been improperly set, with the result that it becomes crooked or shortened; when the fact is, as is conclusively shown by Prof. Frank H. Hamilton in a paper published by him many years ago, and quoted with approval by Professor Elwell, in his work on Malpractice, etc., that the percentage of cases, in certain kinds of fractures, in which perfect results are obtained by even the most eminent surgeons, is very small. In such cases as these the true state of affairs might often be disclosed by careful inspection prior to the trial. On the whole more good than harm would seem to be the probable outcome of permitting such examinations, in malpractice cases, if not in all cases of alleged personal injuries.

=Evidence in Malpractice Cases.=—The prevailing trial practice in malpractice cases is to prove the condition of the patient prior to the employment of defendant and at the time the treatment in question began, the methods of treatment adopted, and instructions given, and the condition of the patient during and after such treatment, and then to place other physicians on the witness-stand, and put to them hypothetical questions involving the facts as established by the evidence, and calling upon them to state whether the method of treatment adopted indicated proper skill and care, or even the usual and recognized methods of the profession.[206]

In some States evidence of the general reputation of the defendant for skilfulness or the contrary is held admissible. In other States such evidence is held inadmissible (see Vol. XIV., Am. and Eng. Encyclopædia of Law, p. 83, and cases collected in Note 6).

=Contributory Negligence.=—In conclusion it should be stated that the patient is bound to follow obediently all proper directions given him by his physician or surgeon, as to his diet, mode of life, time of taking and quantity of medicine to be taken, or the care of a diseased or injured member. Any disobedience of such directions which contributes to prevent a recovery will bar him from his right of action for malpractice, even though the medical man may have been somewhat negligent. In short, the same rule as to contributory negligence applies in this as in any other case of negligence. This principle has been so long and so well settled that citation of authority in support of it is unnecessary.

THE LAW OF EVIDENCE

CONCERNING

CONFIDENTIAL COMMUNICATIONS

BETWEEN

PHYSICIAN AND PATIENT.

BY

CHARLES A. BOSTON,

_Counsellor-at-Law, of the New York City Bar_.

CONFIDENTIAL COMMUNICATIONS BETWEEN PHYSICIAN AND PATIENT.

PRIVILEGED COMMUNICATIONS.

CONFIDENTIAL communications between physician and patient not infrequently may relate to matters that are the subjects of inquiry before judicial tribunals. When these communications are by law excluded from disclosure in evidence, they are termed _privileged_ communications. When such a disclosure is forbidden it is upon grounds of public policy,[207] “because greater mischiefs would probably result from requiring or permitting its admission, than from wholly rejecting it.”

COMMON LAW.

The common law required an inviolable secrecy to be observed by attorneys with reference to the communications which they had received from their clients.[208] But writers upon the law of evidence state that under the English rule protection from disclosure in evidence in a court of justice was not extended to communications between a medical man and his patient.[209]

_Reasons for the Rule._—It does not clearly appear, in any of the cases usually cited as authority, why the distinction is made between legal and medical advisers, but it is apparent that the privilege does not rest upon considerations of honor nor of confidence,[210] nor even upon the urgency of the situation under which the communication is made; for disclosures are made to a physician frequently to save life, or to a priest for reasons of eternal import, while those made to an attorney insure at most protection from temporal annoyance. The privilege of attorneys seems to be founded upon considerations of public policy in the administration of justice in the courts; attorneys are a part of the system, as are grand jurors, petit jurors, and judges,[211] and even arbitrators;[212] but physicians are no part of that system, and a disclosure of confidences made to them in no way tends to weaken the system or render it ineffectual, while the compulsory examination of lawyers would tend to the suppression of the truth in litigation by discouraging confidence between attorney and client. This, perhaps, can be assigned as the reason for the distinction; a distinction which does not differentiate lawyers from physicians, but agents in the administration of justice from all others.[213]

_Criticism of the Rule._—Though the privilege of attorneys was adopted to enforce respect for the law as securing the rights of persons entitled to its protection, by establishing inviolable confidence between them and the officer who represents them in their dealings in the law, and though it was not the purpose of the law to enforce sentiment or to elevate one profession above another, the sentimental idea did not suffer neglect for the want of advocates. Justice Buller lamented the narrowness of the rule,[214] and Mr. Best has criticised it as harsh in itself, of questionable policy, and at variance with the practice in France and the statute law in some of the United States of America.[215]

THE RULE IN THE UNITED STATES.

It is to be assumed, in the absence of statutes varying the rule, and of decisions to the contrary, in the several States of the United States, that in those States which derived their law from England the same rule of evidence obtains as that above enunciated. But many of the legislatures have by statute extended the privilege to communications between physicians and their patients, as well as to other specified confidential communications which it does not fall within the scope of this work to discuss.[216]

_States and Territories in which there are No Restrictive Statutes._—The following States and Territories have no statute restricting the nature of the disclosures which a physician may be compelled to make in a court of justice: Alabama, Arizona, Connecticut, Delaware, District of Columbia, Florida, Georgia, Illinois, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Mississippi, New Hampshire, New Jersey, New Mexico, Pennsylvania, Rhode Island, South Carolina, Tennessee, Texas, Vermont, Virginia, and West Virginia.[217]

_States and Territories in which there are Restrictive Statutes._—The following States and Territories have statutes restricting disclosures by physicians: Arkansas, California, Colorado, Idaho, Indiana, Indian Territory, Iowa, Kansas, Michigan, Minnesota, Missouri, Montana, Nebraska, Nevada, New York, North Carolina, North Dakota, Ohio, Oklahoma, Oregon, South Dakota, Utah, Washington, Wisconsin, and Wyoming.[218]

_The Rule in United States Courts._—In trials at common law in the courts of the United States, the laws of the several States, except where the Constitution, treaties, or statutes of the United States otherwise require or provide, are regarded as rules of decision.[219] Section 858 of the Revised Statutes of the United States prescribes rules with reference to competency notwithstanding color and interest of witnesses, and in actions by or against executors, administrators, or guardians, and then provides that “in all other respects the laws of the State in which the court is held shall be the rules of decision as to the competency of witnesses in the courts of the United States in trials at _common law_, and in _equity_ and _admiralty_.” Accordingly it has been held by the Supreme Court of the United States that in an action in the Circuit Court of the United States for the Southern District of New York, on a policy of life insurance, the evidence of a physician, inadmissible under Section 834 of the New York Code of Civil Procedure, was properly excluded.[220] But in criminal prosecutions in United States Courts, the privilege secured by State statutes does not avail.[221]

THE STATUTES.

As the effect of these statutes depends largely upon their language, the construction put upon the law in one State is chiefly serviceable in interpreting that of another State in those particulars where the two are similar.

_Statutory Declarations of Policy._—A comparative view of the several laws shows that in the following States and Territory there are declarations of policy prefixed to the prohibition of disclosures, that show the reason of the enactment, namely: California, Colorado, Idaho, Minnesota, Montana, North Dakota, Oregon, South Dakota, and Utah.[222] The declaration is to the effect that there are particular relations in which it is the policy of the law to encourage confidence and to preserve it inviolate, and that therefore the prohibition of the statute is laid.

ANALYSIS OF THE STATUTES.

The common purpose of the statutes is to restrict the rule compelling disclosures so as to protect communications with a physician in his professional capacity; but the limit to which the protection is extended differs in the various States. An analytic comparison of the statutes tends to show how far the interpretation of one is useful in construing another.

_I. Nature of the Exclusion._—In California, Idaho, Minnesota, Montana, North Dakota, Oregon, South Dakota, Utah, and Washington the statutes apply only to testimony in civil actions.[223] The other statutes make no distinction between civil and criminal proceedings.

The active words are of course different in the several statutes, but they indicate a purpose to extend a privilege that the person entitled to it may insist upon maintaining, with the single exception of the law of North Carolina, which provides that the presiding judge of a superior court may compel a disclosure, if in his opinion the same is necessary to a proper administration of justice.

Some of the statutes show clearly that it is the patient’s privilege, and suffer the patient or his representatives to waive it, either expressly or by conduct which the law declares to amount to a waiver.[224] Others are silent on this subject.

In California, Colorado, Idaho, Iowa, Minnesota, Montana, Nebraska, Nevada, New York, North Dakota, Ohio, Oregon, South Dakota, Utah, Washington, and Wyoming, it is expressly provided that the patient’s consent is necessary before a disclosure will be permitted.

In Colorado, Kansas, Oklahoma, and Oregon, if the patient offer himself or a physician or surgeon as a witness, that is to be deemed a consent.

In Nevada, in any suit or prosecution for malpractice, if the patient or party suing or prosecuting shall require or give consent, and any physician or surgeon shall give testimony, then the defendant may call any other physicians or surgeons as witnesses without the consent of the patient or party suing or prosecuting.

In Ohio and Wyoming, if the patient voluntarily testify the physician may be compelled to testify on the same subject.

_II. The Witness._—In Indiana, Ohio, and Wyoming the privileged witness is termed a _physician_; in the other States and Territories, the privilege extends to a _physician_ or _surgeon_.

In Arkansas and Indian Territory the privilege is secured to a person _authorized to practise_ physic or surgery; in California, Montana, and Nevada, to a _licensed_ physician or surgeon; in Colorado, to a physician or surgeon _duly authorized_ to practise his profession _under the laws of the State_; in Michigan, New York, North Carolina, and Wisconsin, to a person _duly authorized_ to practise physic or surgery; in Minnesota, Oregon, and Washington, to a _regular_ physician or surgeon; in Iowa and Nebraska, to a _practising_ physician or surgeon; in the remaining States and Territories, these statutes do not in terms distinguish between licensed and unlicensed practitioners.[225]

In New York, by the amendment of 1893 to Sec. 836 of the Code of Civil Procedure it is provided that in an action for the recovery of damages for a personal injury the testimony of a physician or surgeon attached to any hospital, dispensary, or other charitable institution, as to information which he acquired in attending a patient in a professional capacity in such institution, shall be taken before a referee. It does not appear whether this amendment is intended to take away the privilege, or merely to regulate the manner of taking such testimony when it is otherwise admissible.[226]

_III. The Evidence._—The character of the communications which are privileged differs under the several statutes. In Arkansas, California, Colorado, Idaho, Indian Territory, Michigan, Minnesota, Missouri, Montana, Nevada, New York, North Carolina, North Dakota, Oregon, South Dakota, Utah, Washington, and Wisconsin, they are characterized as _information_; in Indiana, as _matter committed_; in Iowa and Nebraska, as _confidential communications_; in Kansas, Ohio, Oklahoma, and Wyoming, as _communications_; in Iowa and Nebraska, it is further provided that they be _properly intrusted_; and in Kansas and Oklahoma, that they be with reference to a _physical_ or _supposed physical disease_.

In Kansas and Oklahoma, any knowledge obtained by a _personal examination_ of a patient is also expressly privileged.

In Indiana, Ohio, and Wyoming, _advice_ given by the physician is covered by the protection.

In Arkansas, Indian Territory, and Missouri, the privilege is limited to information acquired _from the patient_; and in Kansas and Oklahoma, to communications made _by the patient_.

The statutes of Arkansas, California, Colorado, Idaho, Indian Territory, Indiana, Michigan, Minnesota, Missouri, Montana, Nevada, New York, North Carolina, North Dakota, Oregon, South Dakota, Utah, Washington, and Wisconsin expressly limit the protection to matter acquired while attending in a professional capacity; and all of these, save Indiana, as well as Iowa and Nebraska, confine the privilege to information necessary to enable the witness to prescribe or act for the patient.

In New York it is provided that “a physician or surgeon may upon a trial or examination disclose any information as to the mental or physical condition of a patient who is deceased, which he acquired in attending such patient professionally, except confidential communications and such facts as would tend to disgrace the memory of the patient, when the protection has been expressly waived on such trial or examination by the personal representatives of the deceased patient, or if the validity of the last will and testament of such deceased patient is in question, by the executor or executors named in said will, or the surviving husband, widow, or any heir at law, or any of the next of kin of such deceased, or any other party in interest.”[227]

The notable characteristics of the several statutes which thus far have been pointed out are discernible in the express language of the acts. In writing or using any treatise or compilation on privileged communications between physician and patient, it is to be constantly borne in mind that the privilege is of statutory origin; that the statutes are often dissimilar; and that the value of a judicial interpretation of one law in the construction of another varies with the dissimilarity.

JUDICIAL INTERPRETATION OF THE STATUTES.

The judicial decisions which are discussed here are those that deal with the privilege secured by the restrictive laws. The analogy between the privilege of a client with regard to his attorney’s disclosures, and that of a patient with regard to the testimony of his physician, is not so complete as to make it essential to present here, for the sake of their bearing upon the subject now under consideration, a study of the principles to be deduced from the numerous decisions with reference to attorneys as witnesses. The analogous cases of clergymen and priests are also beyond the scope of this treatment.

_Rules of Construction._—The restrictions are in derogation of the common law[228] and in accordance with the rule of interpretation ordinarily adopted should be strictly construed,[229] but the courts have generally looked at the policy of the enactments, and have construed them so as to preserve inviolably the confidence existing between physician and patient, without narrowing their effect to a strict interpretation of their language.

In Indiana, under a former law which protected matters _confided_, it was said that the statute should be given a broader scope than the word _confided_ in a strict sense imports, so as to cover matters learned by observation and examination.[230] But, though the statute in terms absolutely prohibits a disclosure, it has been said, in Indiana, that it gives no right to the physician to refuse to testify where the patient waives the privilege,[231] and that it creates no absolute incompetency, because to hold otherwise would result in obstructing justice without subserving the purpose of the statute.[232] In Missouri, there is a dictum that the privilege should be carefully limited to what the statute requires, not so much because it is in derogation of the common law as because it is in exclusion of the best evidence, on the ground of privilege;[233] but in this very case, the real question was whether the word _oral_ should be construed into the statute so as to exclude from its protection information acquired by inspection and observation, and it was held that no such narrow interpretation was proper. In a later case the narrowing dicta of the foregoing opinion were disapproved,[234] and subsequently the disposition to make a liberal construction was shown by the highest court of the State, although a general rule of interpretation was not announced.[235] In New York, the rule that a statute in derogation of the common law is strictly construed does not apply to the Code of Civil Procedure.[236] But before the enactment of this statutory rule[237] there was a tendency to interpret liberally the law prohibiting disclosures.[238] In Arkansas the tendency seems to be to construe the law strictly.[239] The spirit of interpretation will be more fully illustrated in the discussion of particular cases which follows.

In New York it was claimed that the protection afforded by the statute is nullified by the provision for the examination of a party before trial,[240] but it was held that the statutes are consistent and the physician cannot be made to disclose, though his patient may be.[241]

CLASSES OF ACTIONS.

_Criminal Actions and Evidence of Crime in Civil Actions._—The statutes confining the restriction to civil actions have been cited above.[242] In Iowa, in an action for breach of promise to marry, it was said that the privilege does not extend to the protection of advice for the commission of a crime.[243] In New York the rule was at first embodied in the Revised Statutes of the State,[244] but upon the adoption of the Code of _Civil_ Procedure it was included therein,[245] and subsequently the provision of the Revised Statutes was repealed.[246] In that State by law the rules of evidence in civil cases are applicable also to criminal cases, except as otherwise expressly provided;[247] and the statutes provide no different rule in criminal actions as to this class of evidence. Notwithstanding this fact, however, it has been said by the Court of Appeals, in a case where there was an attempt to screen a murderer by insisting that his victim’s physician was not a competent witness as to information acquired by him while attending his patient,[248] that the design of the law was to enable the patient to make known his condition to his physician without the danger of disclosing what would annoy his feelings, damage his character, or impair his standing while living, or disgrace his memory when dead, but that it was not intended to protect a murderer rather than to shield his victim; and quoting from the opinion of Talcott, J., in the court below,[249] the Court said: “The purpose for which the aid of the statute is invoked is so utterly foreign to the purpose and object of the act and so diametrically opposed to any intent which the legislature can be supposed to have had in enacting it, so contrary to and inconsistent with its spirit, which most clearly intended to protect the patient and not to shield one who is charged with his murder; that in such a case the statute is not to be so construed as to be used as a weapon of defence to a party so charged instead of a protection to his victim.” Accordingly it was held that the evidence was not to be excluded under the statute. But the rule is still applicable to criminal actions. In a later case, where the accused was indicted for abortion, the same court held, that where the patient was living and the disclosure tended to convict her too of crime or to cast discredit and disgrace upon her, the evidence of her physician as to information acquired by him in attendance upon her was inadmissible in the trial of the man charged with the crime.[250] In a still later case,[251] the General Term of the Supreme Court held, where the accused was on trial for murder and he had confided to a physician what he had done, that the physician could not disclose the confidence. The rule deducible from these decisions seems to be that in New York the privilege extends to criminal actions, even though they be trials for murder, and even though the person accused be the patient, but that the statute will be applied only for the protection of the patient, and where it is apparent that no injury can possibly be done to the patient or his memory by the admission of the evidence, and the interests of justice demand the disclosure, for the punishment of a person for an injury done to the patient involving a violation of the criminal law, and the patient is not alive to waive the privilege, that the disclosure is not forbidden.

In New York efforts have been made to exclude from the operation of the statute other classes of actions, to which it has been urged that the reasons for the enactment do not apply, or in which the mischief alleged to be wrought by its enforcement has been suggested as ground for believing that the legislature could not have intended to include them. Of these, actions for divorce on the ground of adultery are one class; but it has been held that they constitute no exception.[252]

_Testamentary Causes._—In New York it was long supposed that the policy of the law excepted probate proceedings; it was so held by the Surrogate of New York City;[253] and also by the General Term of the Supreme Court,[254] by which it was stated that the practice had prevailed for a half-century in will cases,[255] but the Court of Appeals,[256] has decided that testamentary cases constitute no exception to the rule, the judge who delivered the opinion stating that there is no more reason for allowing secret ailments of a patient to be brought to light in a contest over his will than in any other case, and that if mischief be wrought by the law the remedy lies with the legislature and not with the courts. The legislature has since afforded the remedy,[257] but not to the extent of adopting the rule of the earlier cases. In Indiana, in an action to set aside a will, the testimony of the testator’s physician has been excluded.[258] And in Michigan and Missouri it seems that testamentary cases are no exception to the general rule.[259]

_Lunacy and Habitual Drunkenness._—It has been claimed in New York that inquisitions of lunacy are an exception, and recently it has been held that the alleged lunatic’s physician may testify as to his mental condition because no one is better qualified to testify,[260] but this decision seems to be at variance with the principle of the decisions of the Court of Appeals with reference to testamentary cases, and presents no satisfactory reason for a distinction. In a similar case in the Supreme Court, Chambers, it was held that a medical attendant at an asylum could not testify.[261] It has also been held that a physician cannot make an affidavit as to the appearance and condition of his patient to support a petition for the appointment of a committee for him as an habitual drunkard.[262]

_Fraud._—Still another class of actions in which contending principles have been invoked to make an exception in the law of privilege, is actions on life-insurance contracts. The contract of insurance is _uberrimæ fidei_, and the defence of fraud in the application is frequently interposed to defeat a claim under a policy. Medical testimony would often be the most satisfactory evidence to establish the fraud, and efforts have been made to introduce it under that excuse, but without avail. In the case of Dilleber _vs._ Home Life Insurance Company, in the Supreme Court of New York at General Term,[263] the question seems to have been directly before the court, and Davis, P. J., dissenting, insisted that the suppression of a physician’s testimony ought not to be permitted so as to cover up a fraud, but the majority of the court held otherwise; the case was subsequently overruled, but not on the ground urged by Justice Davis.[264] The number of insurance cases in which the rule has been enforced seems to leave it beyond question that it will not be relaxed for the purpose of establishing fraud,[265] although that announcement has not been specifically made. There seems no reason that the rule should be relaxed in that regard when it is not relaxed to establish the crime of the patient; though the mischief that may be done in such cases is apparent.[266]

_The Witness._—The statutory provisions as to the professional status of the witness whose testimony is excluded have already been shown.[267] The facts which establish the relation of physician and patient will be treated later.[268] The witness is a member of a profession, but there is very little discussion in the cases as to what constitutes a physician or surgeon.[269] The language of the statutes as well as their policy and intent has been said to plainly embrace a physician who casually or in any way attends and prescribes for a patient, whether he be a family physician or the usual medical attendant or not.[270] The spirit of the acts would protect communications made to any person attending the patient in the accepted capacity of physician or surgeon wherever that might have happened, though the letter would confine it in some instances to duly authorized or duly licensed persons. It does not seem to have been established whether such authority or license must have been granted under the laws of the State where the trial is conducted, nor how the several statutes apply to communications made elsewhere, especially in States or countries where authority or license to practise is not required by law.

It has been said with reference to the New York law that it is absolutely necessary that the witness should be a _duly qualified_ physician;[271] and it has been held that the words “duly authorized” mean those persons who are not prohibited by the penal code from practising, so that an unlicensed physician may be compelled to disclose confidential communications.[272] Whether the same rule would be applied with reference to information obtained in another State by a physician duly authorized to practise there although prohibited from practising in New York, is a question that is suggested as a case within the reason of the law but outside of its letter, and one which does not seem to have been answered.

In New York, in an action by a physician for compensation for his services, it was held that a person who merely answered for a physician at his office in his absence, and was not himself a physician, is not a witness whose testimony is privileged.[273]

In Missouri it has been held that a drug and prescription clerk is not a privileged witness.[274] The question arose in the same State, whether a dental surgeon is forbidden to testify under the statute, but its determination was not essential to the judgment and it was left unanswered.[275]

To establish the privilege it is necessary that the person who insists upon it to exclude testimony should show by competent evidence that the witness belongs to the class privileged under the law.[276] But where the physician testified that he was a regular practising physician and attended in that capacity, and he was not examined further as to his due authority, it was held that a failure to produce his license could not be urged on appeal as reason for compelling him to testify.[277] The Court said that if the privilege were the physician’s he might, if the objection were taken, be required to prove by the best evidence that he was duly authorized, but as it is the patient’s privilege, in the absence of objection to the sufficiency of the proof, the patient is entitled to the benefit of the presumption that the physician had the license which the law requires to entitle him to practise.

WAIVER OF THE PRIVILEGE.

_Who may Waive._—Those States in which the law provides for a waiver have been enumerated;[278] in others the courts have determined that the privilege of waiving is implied in the reason for the law. In Indiana it has been held that although the statute contains in terms an absolute prohibition, it creates no absolute incompetency and the privilege may be waived by the person for whose benefit it is made or his legal representative.[279] Under the Michigan law it was claimed that the physician is forbidden to reveal confidences even though he have his patient’s consent, but it has been held that the law only creates a privilege on the same footing with other privileged communications, which the public has no interest in suppressing when there is no desire for suppression on the part of the person concerned.[280] In Missouri too the patient may waive the privilege.[281]

The protection vouchsafed by the law is designed for the benefit of the patient, and therefore the physician himself cannot waive it.[282] The patient can disclose his own physical condition if he so desires.[283]

But the physician cannot refuse to testify if the patient waives the privilege.[284]

The patient can waive the privilege during his life.[285]

As it existed prior to 1891 the New York law provided that the prohibition should operate unless it was expressly waived upon the trial or examination by the patient.[286] This was interpreted to mean that the patient himself was the only person who could make a waiver; and that, therefore, the possibility of waiver ceased with the death of the patient, while the privilege of secrecy continued unabated, so that those claiming under the deceased patient could not waive the privilege, nor insist upon the testimony of the physician, even though their interests were in jeopardy on account of his silence.[287] It seems, however, that a patient can during his lifetime waive the privilege, the waiver to take effect after his death.[288] The express waiver required by the statute may be given by the patient’s attorney, because of the nature of the attorney’s agency in conducting an action for the patient.[289]

None of the other statutes are in the exact terms of the New York statute, but those of California, Colorado, Idaho, Minnesota, Montana, Nevada, North Dakota, Ohio, Oregon, South Dakota, Utah, Washington, and Wyoming provide that the testimony shall not be given unless the _patient_ consent; in Iowa, the waiver provided for is that of the _person_ in whose favor the prohibition is made; and in Nebraska, of the _party_ in whose favor the provision is enacted.

In Indiana, the privilege extends beyond the death of the patient, and it may be waived by the party who may be said to stand in the place of the deceased and whose interests may be affected by the disclosure.[290]

In Michigan, what the patient may do in his lifetime, those who represent him after his death may also do for the protection of the interests which they claim under him.[291] In Missouri the representatives of the patient may waive;[292] and where the dispute is between devisees and heirs at law all claiming under a deceased patient, either the devisees or heirs may call the attending physician of the testator as a witness regarding information acquired by him in his professional attendance.[293] In Nevada it has been said that the parents of a seven-year-old infant, may waive for the infant.[294]

_Objections to the Admission of Privileged Communications; When and by Whom Made._—Having considered who can waive the privilege, it is material to discuss also the question who may insist upon the enforcement of the law. If the protection were only enforced on the claim of privilege by the patient, the very object of the statutes would be defeated in the large majority of instances because of the absence of the patient and every one interested in his behalf to assert his right. It rests, therefore, with any party to raise the objection and assert the prohibition. But it seems that the physician himself, unless a party, cannot make the objection.[295] It seems to have been thought in some of the cases that the right to insist upon the enforcement of the law is coupled with an interest derived from the patient. This idea started from the language used in the early cases enforcing the privilege at the instance of those claiming under deceased patients;[296] and it led to some confusion where the right of representatives to waive the privilege was denied; but it seems to be clear that the right to object differs from the right to waive in that the latter is necessarily and logically dependent upon the relation between the patient and his representative, while the former is obviously suggested as the best method of enforcing the law. In Indiana it has been said that the statute gives to the representative of a deceased patient the right to object;[297] but that this is not by reason of the relationship appears from another case in the same State, where on an application for a new trial the Court voluntarily refused to grant one for newly discovered evidence disclosed to it by a physician’s affidavit, on the ground that if the patient should object in the new trial the evidence would be excluded.[298] In this State it has been held that the widow of the patient cannot object to the disclosure, if his administrator with the will annexed waives the privilege.[299]

In Michigan it has been said that the physician cannot avail himself of the statute for his own benefit; but that was in a case where the communication was not really of the privileged class.[300] In New York, in proceedings to which a physician was a party an examination of his books of account before trial has been refused on the ground of privilege, and for the same reason a motion to direct a physician to turn his books of account over to a receiver has been denied.[301]

In Montana it has been said that when the patient consents no one else can object to the reception of the physician’s testimony.[302]

In New York it has been said that the benefits of the law are to be dispensed alike to those familiar with and those ignorant of its existence and applicability, and it is therefore no reason to refuse its enforcement, that the patient did not know that his communication was privileged.[303]

But, as in other cases of the receipt of improper evidence, it would seem that the objection should be made at the time it is offered, and if the objection is not then made, it will not avail to raise it later or on appeal.[304] It should not be prematurely made.[305] In New York where in pursuance of a special feature of practice in probate proceedings,[306] certain witnesses are regarded as the surrogate’s witnesses though produced at the instance of the contestant, and the contestant, after giving notice that the evidence of physicians as such witnesses was material, refused to examine them, and the surrogate required the proponent to suggest a line of examination, it was held that it did not lie with the contestant to object to the physicians’ testimony as privileged, because she had lost her right to object by giving notice that the evidence of those witnesses on these points was material.[307]

Objection cannot be raised in the progress of an examination after the forbidden testimony has been in part received without objection; for that would unjustly enable a party to open the door and get in all he desired and then to close it to the disadvantage of his adversary; when the door is once properly opened the examination may be continued until it is complete, despite the objection of the party at whose instance it was begun.[308]

In Indiana, where there was no objection, it was held that the evidence should not be withdrawn from the consideration of the jury or its weight diminished by comments on its value as matter of law.[309]

But when such evidence has already been admitted in the face of objection, it is not necessary for the party to object again, as nothing is waived by conforming with a rule already laid down.[310] Where it is apparent that no harm is done to the objecting party by an improper ruling on the receipt of privileged communications, no weight will be given to an exception to such ruling.[311]

_What Constitutes a Waiver of the Privilege._—The statutory provisions as to what constitutes a waiver have been set forth above.[312] In California it has been held that cross-examination of the physician by the patient, calling for privileged matter, is a waiver of privilege.[313] In Indiana it has been held that consent to disclosure cannot be inferred from the patient’s simply giving the name of his family physician in applying for a policy of insurance on his life, and that a waiver in such an application should be evidenced by a stipulation too plain to be misunderstood.[314] And a physician’s statements of the cause of his patient’s death, furnished to an insurance company, in pursuance of a stipulation of a policy that satisfactory proof of death shall be submitted to the company, are not rendered admissible by that stipulation.[315]

It has also been held that consent to the evidence of one physician is no consent that another physician may divulge confidential communications;[316] and that the physician cannot testify that he found no evidence of injury on the examination of his patient, in order to contradict her;[317] the patient had already testified as to her condition and what the physician had done, but not as to anything said to her by her physician; she had expressly declined to testify concerning communications except as to his prescription for her injury, and without asking him to disprove her assertions the trial Court permitted him to say that he had found no evidence of injury; this was held to be error. It has also been held that the taking of a physician’s deposition and filing it, for the purpose of breaking the force of his testimony in a deposition taken by the opposite party, is no consent in itself to the reading of the other party’s deposition.[318] But when, in an action against a physician for malpractice, the patient testifies as to the manner of treatment, the physician is then at liberty to introduce the testimony of himself or another physician as to the facts thus put in issue by the patient.[319]

In Iowa it has been held that the testimony of a patient regarding the condition of his health is not a waiver of privilege, so as to allow his opponent to introduce the testimony of his physician to contradict him.[320]

In Michigan a physician has been allowed to contradict his patient as to the time when her trouble commenced, but on the ground that it had not been shown that the information was necessary to enable him to prescribe.[321] But it has been held that waiver as to one physician is not waiver as to another regarding a different time.[322]

In Missouri, the calling of a physician by the patient as a witness to testify as to information acquired while attending, is a waiver.[323] But offering one physician as a witness is not a waiver of the privilege with reference to another.[324] An applicant for insurance may, by an express waiver in his application, make an efficient waiver, binding upon any one claiming under the contract of insurance.[325]

In Nevada a waiver has been implied from the testimony of the patient and her mother, where the patient was an infant seven years of age.[326] And it was said that the parents of such an infant may make the waiver.

In New York it has been held that reference to a family physician when answering questions on an application for insurance, is not a waiver;[327] nor is the presence of a third person, in aid of the patient;[328] nor is the bringing of an action for damages for an injury;[329] nor is the examination of the physician in a former trial by the opposing party;[330] but where the ban of secrecy is once removed in an action and the information once lawfully made public, at the instance of the patient, it cannot be restored, and the disclosure may then be compelled in any subsequent action;[331] it would seem, too, that a physician who becomes a witness to his patient’s last will and testament at the patient’s request is then subject to a thorough examination on all points involving the patient’s testamentary capacity.[332]

Where the patient testified herself and called an attending physician to prove her physical condition, this was not a consent to the examination of another attending physician, and it was said that the opposite party by tactics on cross-examination could not compel the patient to abandon a privilege which she refused to waive.[333] Fish, J., in delivering the opinion of the Court in the last-mentioned case, said of the operation of the statute, that it allows the patient to use the testimony of the attending physician if he thinks his evidence will benefit his case, and to object and exclude it in case he thinks it will not benefit him; he may call to his aid the testimony of any one whose views he approves and exclude that of another whose testimony might tend to controvert that given with the consent of the patient; that in this case the excluded witness was the best witness and could tell nothing else than the patient had disclosed if she had told the truth and it would relate solely to what she and the other physician had described, but that the Court could not consider whether the statute tended to promote the cause of justice, and he distinguished _McKinney v. Grand Street Railroad Company_,[334] on the ground that there the consent had been that the same physician should disclose what he knew, while here the waiver of the excluded physician’s testimony had been constantly withheld.

A decision which seems to be at variance with _Record v. Village of Saratoga Springs_ is _Treanor v. Manhattan Railway Company_,[335] where it was said that the patient cannot promulgate and uncover his maladies and infirmities in court and keep his physician under obligations to silence, and that he cannot, to mulct another in damages, inflame a jury with a false or exaggerated story of his injuries and sufferings and preclude the physician from making a truthful statement of the case.

But where the patient testifies as to what passed between him and his physician, the physician may testify on the same subject, as a waiver is inferred from the circumstances; for the reason, that the patient, having gone into the privileged domain to get evidence on his own behalf, cannot prevent the other party from assailing such evidence by the only testimony available, and the rule is no longer applicable when the patient himself pretends to give the circumstances of the privileged interview.[336] The requirement that a physician file with a board of health a certificate of the cause of death does not abrogate the privilege in a judicial proceeding.[337]

THE EVIDENCE EXCLUDED.

“_Information._”—In Arkansas, California, Colorado, Idaho, Michigan, Minnesota, Missouri, Montana, Nevada, New York, North Carolina, North Dakota, Oregon, South Dakota, Utah, Washington, and Wisconsin the privileged matter is characterized as _information_.[338]

In Arkansas it seems that the information must be a _confidential communication_;[339] but in the other States where it has been necessary to construe the word it has received a broader interpretation.

In Michigan _information_ is not confined to confidential communications made by the patient, but includes whatever in order to enable a physician to prescribe was disclosed to any of his senses and which in any way was brought to his knowledge for that purpose;[340] it covers a letter written to a physician,[341] and matters observed by him;[342] but it does not include information acquired by a third person; for instance, the time when a physician saw his patient may be disclosed by her mother;[343] and the fact of treatment or non-treatment is not _information_;[344] nor are the facts that the physician was the patient’s family physician, and that he attended him professionally; nor are statements of the dates of such attendance and the number of such visits;[345] nor the facts that the physician has been called upon to examine and prescribe for a person and that his patient had told him that she would want him to testify for her in a lawsuit.[346]

In Missouri the statute protects information received _from the patient_; but this is not confined to oral communications, and includes knowledge gained by inspection of the patient’s person.[347] In _Lunz v. Massachusetts Mutual Life Insurance Company_ protection was said not to extend to information of this sort apparent on casual inspection, which any one might make, nor to symptoms which are obvious before the patient submits himself to any examination, such as an inflamed face, a bloodshot eye, alcoholic fumes, or delirium; nor to facts so superficial that in regard to them no confidence could have been reposed. But this distinction between hidden and patent facts is disapproved in _Kling v. City of Kansas_,[348] and the statement is made that the law does not rest on the confidence imposed. Knowledge or communications concerning the cause of a patient’s condition and the extent of his injuries have also been held to be included in the term information, because the disclosure of these matters involved the indirect disclosure of the condition;[349] but it was said that the physician may testify as to knowledge acquired independent of communications from the patient and of examination or inspection made by the witness for the purpose of treatment.[350] As divulging privileged information, a physician has not been allowed to answer what his patient’s hurts were, why he left a hospital, or whether he required longer treatment;[351] and it has also been held that a physician cannot give his opinion as to the mental condition of his patient based upon privileged knowledge.[352]

In New York _information_ comprehends all knowledge acquired by the physician by communication, observation, or inspection;[353] it has been said to extend to all facts which necessarily come to the knowledge of the physician in a given professional case;[354] and it includes as well the opinion of the physician based upon his knowledge as the knowledge itself.[355]

The physician cannot disclose the nature of his patient’s disease, whether he learned it by observation or examination or from what his patient told him;[356] nor can he testify as to what he told his patient.[357] In _Edington v. Ætna Life insurance Company_[358] it was said by Judge Earl that the statute was aimed at confidential communications and secret ailments, and that it did not extend to matters superficially apparent, such as a fever, a fractured leg or skull, or raving mania apparent to all;[359] but this view was disapproved expressly in the later case of _Renihan v. Dennin_.[360]

The privileged information has been said to include knowledge acquired through the statements of others surrounding the patient.[361] But it would seem that the fact that a third person was present during a physician’s visit may be shown by the physician, as well as what passed between the patient and the third person, if it was such information as a layman would have gathered.[362] The information from the third person regarding the patient is protected even though the patient be absent;[363] but not if the third person does not employ the physician, and the information thus acquired is not necessary to enable the physician to act in a professional capacity.[364] It is suggested in one case, but not determined, that it would be improper for a physician to state the value of the services of a nurse in attendance upon his patient, as that would involve a consideration of the condition of his patient;[365] but it has been held that a physician can testify to the fact of a nurse’s services.[366]

But it is information regarding the patient that is privileged, and therefore a physician may disclose what his patient told him about another, even though the subject of inquiry be the attitude of the patient toward the other;[367] and likewise the physician may disclose what he told his patient about a third person;[368] so also the physician may testify as to family events in no way connected with physical complaints.[369] It has been held, too, that admissions made by a patient to his physician, tending to show contributory negligence on the part of the patient, at a time when the communication could not well have been made to enable the physician to prescribe, namely, on the physician’s third and last visit, may be proven by the physician.[370]

The physician may properly testify that he did attend as physician,[371] and that the patient was sick, and he can state when and how often he attended him,[372] and whether his knowledge was acquired while in professional attendance,[373] but it is open to the Court to determine from the evidence whether it was so acquired.[374]

“_Matter Committed._”—In Indiana the protection covers _matter committed_. It would seem that the use of the word _committed_ implies confidence and that the protected matter is only confidential communications; but an earlier statute in that State applied to “matters confided,” and it was held to cover matters learned by observation or examination, or by communication from the patient, whether learned under an injunction of secrecy, express or implied, or not;[375] and it has been held that the present law forbids the disclosure of matters learned in a sick-room, no matter how the knowledge may have been acquired.[376]

“_Confidential Communications._”—The laws of Iowa and Nebraska protect confidential communications properly intrusted. The construction put upon the word _confided_ in Indiana has been shown. In Iowa it has been said that a confidential inquiry for advice to facilitate the commission of a crime or the infraction of law, is not properly intrusted and is not privileged;[377] but where the advice is sought for a purpose which may or may not be lawful, the presumption is that it is lawful, and the communication is privileged.[378] It has been said that whether or not a physician treated a person for a particular disease, is not a confidential communication.[379]

The word confidential is not narrowly construed, for a physician has been prevented from disclosing whether his patient said that a car was in motion when he was injured, because the injury would be more severe if in motion;[380] and the fact that the physician’s partner was present does not remove the seal of secrecy, or permit the partner to testify.[381]

“_Communications._”—In Ohio and Wyoming _communications_ are privileged; and in Kansas and Oklahoma communications with reference to a physical or supposed physical disease and any knowledge obtained by a personal examination of a patient. It does not appear whether a narrower construction would be given to the term _communications_ than to the term _information_; but it would seem not, if a person deprived of speech is to be protected,[382] or if the term _communications_ is not to be construed as meaning _oral communications_.

“_From the Patient; by the Patient._”—The former qualifying terms are used in the statutes of Arkansas, Indian Territory, and Missouri; the latter in the statutes of Kansas and Oklahoma. The liberal interpretation put upon this term in the Missouri law has already been shown.[383] The law of the Indian Territory is adopted from Arkansas.[384] The statute is strictly construed in Arkansas,[385] but this term does not seem to have received interpretation.

“_Advice._”—The laws of Indiana, Ohio, and Wyoming expressly cover the physician’s advice. In New York it is incompetent for the physician to disclose what he told his patient;[386] but advice to a patient concerning a third person is not privileged.[387]

_The Relation of Physician and Patient._—Under each of the statutes, the relation of physician and patient must have existed at the time the information was acquired. In those cases where the relation is established by contract and is recognized by both physician and patient as existing, no difficulty arises in determining that it does exist. It is in those cases where some one of these elements is lacking that the difficulties are met. In California it has been held that the relation exists where a physician attends and prescribes for a person, notwithstanding he was employed by another, who seeks to disclose the evidence.[388] In Michigan, where the physician was employed by direction of the prosecuting attorney to examine the defendant in jail, and so notified the defendant at the outset of the examination, and he submitted voluntarily to a personal examination, and there was no intention to prescribe or to act as the defendant’s physician, it was held that the relation did not exist, and that the physician could testify as to the defendant’s physical condition.[389]

In one New York case it has been said that the relation is one of contract, and that the test is whether the physician would be chargeable with malpractice or negligence for failure to advise or prescribe in case the alleged patient were in urgent need of it at the time.[390] But the decisions of the Court of Appeals extend the privilege to cases where this test would lead to a different conclusion.[391]

Where the physician to a county jail was called in to attend a prisoner and examined him, though there was no prescription at the time, but it appeared that the doctor told the prisoner what he should prescribe, and subsequently two physicians came to see the prisoner at the instance of the coroner and examined him as they would have examined one of their patients, though they did not prescribe and had no conversation about a prescription, it was held that the prisoner had, under the circumstances, reason to suppose that the relation of physician and patient did exist between him and all three of the physicians, and that their testimony as to what they learned on such visits should have been excluded; and the rule is thus stated: whenever the patient has reason to suppose that the relation exists and does in fact and truth so suppose, in a case where the physician attends under circumstances calculated to induce the opinion that his visit is of a professional nature, and the visit is so regarded and acted upon by the person attended, the relation of physician and patient contemplated by the statute may fairly be said to exist.[392]

But the fact that it is the duty of a physician to prescribe for a person in case of need, does not constitute the relation, though the position of the physician gives him the opportunity to observe such person; so, therefore, a jail physician was not precluded from testifying as to what he had observed of a prisoner, where it did not appear that he had ever attended the latter in a professional capacity or had ever been called on to attend him.[393]

It would seem, however, that where it is the duty of a physician to attend a person in a professional capacity or to acquire knowledge concerning him in such capacity, he cannot disclose information actually acquired in the performance of his duty. It has been said that a medical attendant at an insane asylum cannot testify as to the mental condition of an inmate;[394] and that a physician employed in a hospital to notice and enter in its records the arrival and condition of the patients coming in, cannot testify as to information so acquired.[395]

It is immaterial that another person employs the physician to examine the patient, and to report to the employer, and that the person examined does not appear to desire any knowledge as to his condition; if the examination is made as a professional act, the relation of physician and patient is established between the physician and the person examined, even though it be the only interview.[396]

And in a case where the public prosecutor sent a physician to a person for the purpose of making a professional examination, so as to obtain evidence against another person charged with crime, and the person examined accepted the services of the physician in a professional character, it was held that he could not testify as to the results of his examination.[397]

But where the district attorney sent a physician to jail to make an examination of a prisoner’s mental and physical condition, and he made such examination, and it did not appear that he prescribed for or treated the prisoner or that the prisoner accepted his services, the opinion of the physician as to his mental condition was admitted.[398]

Where the defendant employed a physician to examine the plaintiff, and he went as coming from the defendant for that purpose, and examined the plaintiff in the presence of his attending physician, but not as the plaintiff’s physician and not for the purpose of prescribing, the relation of physician and patient was not established.[399] Where a physician examined the plaintiff at the instance of the plaintiff’s physician, but it was not shown that he was requested or expected to treat or prescribe or to advise in respect to either, or that he did either, it was held that the relation was not established;[400] but a physician consulted by the patient’s regular physician for the purpose of advice concerning his treatment is a physician contemplated by the statute;[401] as is also the partner of a physician who is present during a conference with the patient or who overhears such a conference.[402] Attendance at the patient’s house is not contemplated as essential by the law, and it makes no difference where the examination is conducted.[403] But where the physician was also a county clerk and the alleged patient was an attorney, and the consultation took place in the clerk’s office and consisted of an examination of an eruption on the skin, which was made gratuitously and without a prescription being made or asked for, the relation was held not to have been established, notwithstanding that the clerk made use of his knowledge and learning as a physician in forming his opinion, and that it was in confidence that he possessed medical skill that the person requested the examination.[404]

It does not follow that the relation once established continues always; the secrecy growing out of the relationship, as to knowledge then acquired, always continues unless properly waived; and the physician will not be allowed to testify in regard to matter which is partly the result of such information, though another part may have been acquired independent of the relation;[405] but where it is clear that the matter desired is independent of the relation of physician and patient, such evidence is admissible if otherwise competent.[406]

“_Professional Capacity._”—The States in which the statutes limit the privilege to information acquired in a professional capacity have been enumerated.[407] As to what constitutes a professional capacity, the discussion of the facts that establish the relation of physician and patient, and of the information necessary to enable a physician to prescribe or a surgeon to act, makes it unnecessary to discuss at length the meaning of this phrase. The decision in _Lunz v. Massachusetts Mutual Life Insurance Company_[408] would make it appear that in Missouri information apparent on a casual inspection which any one might make is not received in a professional capacity, but this idea is disapproved in the later case of _Kling v. City of Kansas_.[409] Information acquired by the physician by observing the patient on the street anterior to his employment as a physician is not received by him in a professional capacity.[410]

In New York, where the physician had not seen the patient before or since his interview for the purpose of treatment, and he was asked what his opinion was, based on a general sight of the man before the examination, it was held that the physician could not properly answer, as all the information upon which the opinion would be based must have been acquired in a professional capacity;[411] but in another case a physician was permitted to express his opinion as to the mental condition of a patient whom he had seen at various times when not in attendance, excluding from his mind any knowledge or information obtained while acting as her medical attendant and confining his answer to such knowledge and information as he had obtained by seeing her when not his patient.[412] It has been said that where information is not such as is obtained on sight by any person, but by removing clothing and by percussion and listening to the action of the lungs, these are professional acts and the information may be considered as obtained professionally.[413] It has been said that information received in a professional capacity involves a decision, though it may be negative; and that signing as witness to a will is not a professional act.[414]

_Matter Necessary to Enable a Physician to Prescribe or a Surgeon to Act._—A list of those States whose laws limit the privilege to matter necessary to enable the witness to prescribe or act for the patient is to be found in another place.[415]

In Arkansas, where six hours after delivery, the patient stated to her physician who attended at accouchement, that she had never been engaged to marry and never had promised to marry, the statements were held not to be necessary to enable the physician to act.[416]

In Iowa, a physician who had treated a patient for injuries was not allowed to testify whether his patient told him that the car on which he was injured was in motion at the time, because as the injury would be likely to be more severe if the car was in motion, that information was necessary to enable the physician to prescribe.[417]

In Michigan, a physician was allowed to contradict his patient as to when her trouble commenced, in the absence of evidence that such information was necessary to enable him to act.[418] Where a physician was asked whether he treated a person for typhoid fever, and he answered that she was not so diseased, it was held that this information was not necessary to enable him to act.[419] And the same was held to be true where a physician examined a prisoner at the jail and testified that he was diseased, the prisoner having been notified at the time of the examination that it was made by direction of the prosecuting attorney and there being no intention to prescribe or act for the prisoner.[420] But it has been stated that all disclosures by a patient to a physician respecting ailments are privileged whether necessary to enable the physician to prescribe or not.[421]

In Minnesota, a physician was allowed to disclose statements as to suffering made by his patient, but not for the purpose of enabling him to prescribe or act.[422]

In Missouri, it has been said that information as to the way in which an injury was inflicted is of the greatest necessity for successful treatment; and that it is information which physicians universally demand and receive.[423] In another case, with reference to the cause of a patient’s condition, it was said that while knowledge of the cause may not be necessary, the disclosure of the cause cannot be made without a disclosure of the condition, and that as a medical person cannot tell indirectly what he is forbidden to tell directly, the physician’s evidence of the cause is inadmissible.[424] In another case it was said that any information, necessarily coming to a physician in order to treat his patient, is to be regarded as necessary information though unimportant, and that the test is how it was acquired, not whether it could have been acquired in a different way, and therefore it was incompetent for a physician to testify that his patient was drunk when he treated him.[425]

In New York, in an early case,[426] where a man consulted a physician with reference to committing an abortion and told him that a certain woman was pregnant by him, this admission was said not to be essential to enable him to prescribe, even if the relation of physician and patient were considered established; but this seems to be at variance with the later case of _People v. Brower_,[427] where the accused consulted a physician with reference to the treatment of a woman on whom he had attempted to commit an abortion, and admitted that he had done so, and the physician was not permitted to disclose it. A broader view is now taken of the word _necessary_. It has been held by the Court of Appeals that a physician could not testify that his patient had a venereal disease while under his care as a physician, the presumption being that he learned it for the purpose of prescribing;[428] and again, that it is assumed from the relationship that the information would not have been imparted except for the purpose of aiding the physician to prescribe.[429] But this presumption does not attach to information regarding a patient, communicated by a third person.[430]

Where a person went to a physician to call for medicine, and it appeared that he was not consulting for himself and was not representing any one else who needed or desired medical assistance, the physician was allowed to testify as to a conversation which took place at that time.[431]

In the case of _Edington v. Ætna Life Insurance Company_,[432] it was said that before the exclusion, the facts on which it is justified must appear in some way, and the Court must know somewhat of the circumstances; from the opinion it is easy to infer that it is only confidential communications and information as to secret ailments which may be regarded as necessary within the statute; but this view was overruled in _Grattan v. Metropolitan Life Insurance Company_,[433] and there it was distinctly stated that it is enough that the witness acquired the information in his character as physician and in the due and proper exercise of his calling, and that it is not incumbent on the person objecting, to show by formal proof that the information was necessary to enable the witness to prescribe. In this case the examination of the witness was as to the cause of his patient’s death, and the argument urged upon the attention of the Court was that information regarding the cause of death could not be necessary to enable the physician to prescribe, as the utility of the prescription ceased with the death and before the cause was determined; but the Court held that the privilege attached, because, although the death was the result of the cause, the facts constituting the cause were learned while the physician was attending the living patient in a professional capacity and from the symptoms manifested at that time.

In consonance with the decision in _Grattan v. Metropolitan Life Insurance Company_,[434] it has been held that a physician who amputated a patient’s leg could not testify as to its condition at the time it was amputated.[435]

The fact that the physician does not prescribe does not defeat the privilege; if the information is acquired in the course of professional employment the statute operates, for the decision that neither advice nor medicine is needed is a professional act within the spirit of the law.[436] _Medicus optimus, medicamentum minimum_, is the maxim used in another case to illustrate this point.[437]

But it cannot be predicated as matter of law that a physician cannot exclude from his consideration facts learned or opinions formed while attending as physician; therefore he can testify as to his opinion on hypothetical facts which might be deemed to relate to another person as well as the patient; and where the physician testified that he could so form an opinion, his opinion of such assumptions was held to be admissible in evidence as expert testimony.[438]

But it is not all information which will be presumed to have been necessary to enable the physician to act; it seems that where the knowledge is such that it is evidently immaterial to the physician’s decision, it will be admitted. Such a case is that of _Hoyt v. Hoyt_,[439] where the testimony of physicians was admitted to show the attitude of their patient toward his daughter and their advice to him concerning her, the evidence being for the purpose of showing the testator’s opinion and not the physicians’. It has also been held that a statement made by a patient on the physician’s last visit as to what occurred at the time the patient was injured, tending to show contributory negligence, was not necessary information.[440] And a physician’s evidence of the declaration of his patient as to making a will and the doctor’s advice on that subject have been admitted.[441]

THE PROVINCE OF THE COURT IN DEALING WITH THE PRIVILEGE.

All questions of the competency of evidence are solved by the Court and not by the jury.[442] The facts establishing the privilege are presented to the Court for its consideration. In Iowa it has been held that a fair trial demands that it should not be made to appear to the jury in an action that the patient is reluctant to waive his privilege, and that therefore the subject-matter of waiver has no place in the taking of testimony except when introduced by the party permitted to make it, and the Court should not allow the patient to be asked to answer under oath whether he is willing to waive his privilege.[443]

Whether it is the duty of the Court to enforce the privilege where it is apparent and the patient is not present to object, is a question that seems to be variously regarded. In Indiana a court has refused a new trial for newly discovered evidence of the privileged sort, on the ground that if objection were madeon the new trial it would be rejected.[444] But where the evidence of a physician to contradict another physician, who was witness to a will, was received without objection, it was said that it should not be withdrawn by the Court from the consideration of the jury or its value commented on as matter of law.[445]

In Michigan, it has been said that a commissioner, whose ordinary duty is to take all evidence offered, should refuse to take this privileged evidence; and that it should be stricken out without motion by the judge when returned by the commissioner, and that the physician should not be allowed to violate the privilege.[446] It has also been held that an order for the compulsory physical examination of a person by a physician for the purpose of testifying should not be granted, and that evidence so obtained should be stricken out, but on the ground that it was a violation of personal liberty, rather than of statutory privilege.[447]

But in New York it has been held that where a person voluntarily in an action exhibits an injured part as evidence, the adverse party is entitled to follow it up by a personal or professional inspection of the injured part.[448]

In Missouri, it has been said that the physician should be told that he is not at liberty to testify as to privileged information.[449]

In New York, in an early case in chancery, the chancellor said that a master was wrong in supposing there was legal evidence before him, where a physician had given evidence privileged under the statute;[450] but this decision was reversed on appeal, the Court of Errors saying that as no objection was made before the master by a party, the evidence was competent and legal.[451] This question seems to have been settled in New York by the decision in _Hoyt v. Hoyt_,[452] that the law does not prohibit the examination of a physician but it prohibits the evidence being received in the face of objection, so that if no objection is made by a party it is not the province of the Court to reject the evidence.

Where it appears that privileged information was improperly admitted, it is not ground for reversal on appeal if it is apparent that the appellant was not injured by its reception.[453]

Where the Court is not empowered to reject the evidence of its own motion, the objection upon which it can reject is the objection of a party to the suit, and doubtless of the patient, but not of the physician.[454] But because of the privilege, it has been held that a physician will not be ordered to turn over his books of account to a receiver appointed in proceedings supplementary to an execution on a judgment against him.[455] Nor will examination of his books of account before trial be compelled.[456]

It is the province of the courts, however, to enforce the law and not to legislate by grafting exceptions upon it.[457] They have refused therefore to except, by judicial decision, from the operation of the law, criminal proceedings, testamentary causes, evidence of crime in civil actions, cases of lunacy and habitual drunkenness and fraud,[458] in all of which it was urged in argument without effect that the administration of justice was impeded by the privilege; but where the spirit of the law was violated by an enforcement of its letter and the privilege made a cloak to shield the murderer of the patient, it was held to be inapplicable.[459] The courts have also refused by mere judicial decision to limit the privilege to the life of the patient.[460]

THE EFFECT OF ENFORCING THE PRIVILEGE.

The courts are not warranted in admitting incompetent evidence in order to prevent the failure of justice by the exclusion of the privileged testimony. A letter written by a physician is inadmissible as evidence of the privileged facts which it states;[461] and a certificate of the cause of death, required by law to be signed by the physician and filed, is not admissible to prove the cause of death in an action in which the physician cannot testify.[462]

The making of the objection does not raise a presumption against the person making it.[463] In Iowa it has been held that the patient should not be interrogated under oath as to whether or not he will waive his privilege, for the jury ought not to be prejudiced against him by any show of reluctance.[464] In Michigan, however, it has been held that a patient’s failure to produce his physician as a witness is a legitimate fact for the jury to consider.[465]

THE CHARACTER AND WEIGHT OF THE EVIDENCE TO SUSTAIN THE OBJECTION.

Where the objection is made, the burden of proof to establish the grounds of privilege is upon the person objecting.[466] In Missouri it has been said that the statement of the physician, that he cannot separate his impressions received in his relation of physician from those received at other times, is not in itself sufficient to justify the exclusion of his evidence; that the facts themselves must appear to the Court, and it might be developed on proper cross-examination that discrimination could be made.[467]

But it would seem that because of the necessarily delicate nature of the inquiry, to avoid disclosing what the statute forbids, the burden is overcome with slight evidence, and inferences and presumptions are freely indulged in aid of the privilege; for instance, where the physician was not permitted to answer whether he did converse with his patient about an injury, or whether he made an examination with reference to it, it was urged that the objection was prematurely made, but it was held that the fact that the patient consulted a physician on the occasion to which the inquiry related, when considered with the nature of the questions, justified the exclusion in the absence of other proof.[468] But the physician may testify that he did attend his patient as physician;[469] and he may answer the question whether the information was necessary to enable him to act in his professional capacity;[470] for while his testimony on that point is not conclusive, and the Court uses its own judgment in reaching a determination, his testimony is competent evidence.[471] He may also testify that a person was ill and was his patient, that he attended as physician, and he can state when he attended and how many times.[472]

It has been said that where the evidence justifies the conclusion that information regarding the patient is acquired while attending in a professional capacity, it is not essential to show by formal proof that the information was necessary.[473]

THE RIGHTS AND DUTIES OF THE PHYSICIAN WITH REFERENCE TO THE PRIVILEGE.

The privilege established by law is a rule of evidence, and not a regulation of a physician’s general conduct outside of a proceeding in which rules of evidence are applicable.[474] The courts have, however, not hesitated to intimate that it is a physician’s duty to observe the same secrecy in his general walk and conversation.[475]

The physician may testify as an expert on hypothetical questions submitted to him regarding facts which might be equally true of any other person than his patient, and excluding from his consideration privileged knowledge.[476] And he may also testify as to matters which came to his knowledge before or after or independent of his employment as physician,[477] or which were immaterial to his acting in a professional capacity, and as to which his patient could have had no reasonable ground for believing that they were necessarily disclosed in order that the physician might so act.[478] It is the patient’s privilege and not the physician’s; and, therefore, the physician is not absolutely incompetent as a witness, and has no right to refuse to testify.[479] But where he is a party he may object and then he will not be forced to disclose his patient’s confidence.[480]

In Indiana it has been held that where the patient testifies in an action against his physician for malpractice the physician is then at liberty to testify or to introduce any other witness to testify concerning the matters in controversy.[481]

In Michigan, a physician who was plaintiff in a libel suit was not permitted to insist upon the privilege to prevent the disclosure of his maltreatment of his patient or what other physicians had discovered with regard to it by visits to his patients.[482]

The measure of the physician’s exemption and liability in testifying is the language of the statute, and not his idea of his duty to his patient or the patient’s injunctions of confidence or secrecy.[483]

In some of the States there are statutory provisions entitling physicians to sue for compensation for their professional services.[484] The statutes regarding privileged communications are to be construed together with these. There seems to be no reason why a physician’s right of action for his services and medicines should not survive the prohibition of his evidence; but it would seem that he cannot as a witness in such an action testify regarding privileged matter. But he can prove it by other witnesses.[485]

THE RESULT OF THE LEGISLATION.

It is doubtless due to considerations of public policy that the statutes changing the common-law rule have been enacted;[486] but they have not proved an unalloyed benefit, and some of their features have brought about conditions which in some cases have embarrassed the administration of justice. The law in New York may be taken for illustration; it formerly cut off the safest means of ascertaining the mental condition and competency of a testator;[487] it now precludes a physician from disclosing the condition of his patient who is a lunatic or habitual drunkard,[488] though it be the most satisfactory evidence; it shuts out much testimony tending to show fraud in insurance cases;[489] it precludes a physician from stating the cause of his patient’s death,[490] though there is no longer any secrecy connected with it, for the law makes it the duty of the physician to make, for filing with the local board of health, a certificate of the probable cause of the death of a patient.[491] It has been the subject of much adverse criticism,[492] but all such considerations are properly to be addressed to the legislature and not to the courts. It seems to be the most far-reaching in its exclusion, and though it has been the longest in existence, was modified at the legislative sessions of 1891, 1892, and 1893, a fact which tends to show that there was sound reason in the criticisms.

A SYNOPSIS OF THE LAWS

OF THE

SEVERAL STATES AND TERRITORIES OF THE UNITED STATES OF AMERICA, AND OF GREAT BRITAIN AND IRELAND, AND OF THE NORTH AMERICAN PROVINCES OF GREAT BRITAIN, REGULATING THE PRACTICE OF MEDICINE AND SURGERY,

PREPARED FROM THE LATEST STATUTES.

BY

WILLIAM A. POSTE,

_Late First Deputy Attorney-General of the State of New York_,

AND

CHARLES A. BOSTON, ESQ.,

_of the New York City Bar_.

SYNOPSIS OF THE EXISTING STATUTES

WHICH REGULATE

THE ACQUIREMENT OF THE RIGHT TO PRACTISE MEDICINE AND SURGERY IN THE UNITED STATES, GREAT BRITAIN AND IRELAND, AND THE CANADIAN PROVINCES.

[NOTE.—This synopsis is designed to contain especially those provisions of the statutes which regulate the right to practise medicine and surgery. It is not intended to include provisions regulating apothecaries, druggists, chemists, and dentists, or the sale of drugs, medicines, and poisons; nor provisions for the organization and procedure of boards of medical examiners, except so far as they regulate the requirements demanded from applicants for permission to practise; nor provisions with reference to the duties of clerks or registrars in the preparation and safe-keeping of records in their care; nor those defining the duties of members of boards, and punishing the misconduct of such members; nor those prescribing qualifications for appointment to the public medical service; nor former laws not now applicable to candidates; nor regulations of the form of certificates or licenses, where the issuing of them is committed to some public functionary or body; nor provisions with reference to the powers and disabilities of local institutions to confer diplomas or degrees, nor with reference to medical students except as candidates for admission to practise. In the synopsis words of the masculine gender are uniformly used except when the law by its terms makes a distinction between men and women, in which case the distinction is indicated.]

ALABAMA.

QUALIFICATION.—The board of censors of the Medical Association of the State of Alabama and the board of censors of the county medical societies in affiliation with the said association are boards of medical examiners (Code 1887, s. 1,301). In the absence of such board of medical examiners in any county, the county commissioners may establish a board of from three to seven physicians of good standing, resident in the county, whose authority shall terminate whenever a board is organized in accordance with the constitution of and in affiliation with said association (_ib._, s. 1,296). Where the board of examiners is constituted as provided in sec. 1,296, it must issue a license to practise medicine in any one or more of its branches in the county, if on examination the applicant is found duly qualified, and is of good moral character (_ib._, s. 1,297).

In a county having only the medical board provided for in sec. 1,296, a regular graduate of a medical college in the United States, having a diploma, is entitled to practise medicine without a license, upon recording his diploma in the office of the judge of probate of the county (_ib._, s. 1,298).

A license issued by the last-mentioned board must be recorded in the office of the judge of probate of the county (_ib._, s. 1,299). The license or diploma, after record, is evidence of authority; if the original be lost, a certified copy of the record is sufficient evidence (_ib._, s. 1,300). Without a certificate of qualification from the board provided for in sec. 1,301, except as above provided, no person can lawfully practise medicine in any of its branches or departments as a profession or means of livelihood (_ib._, s. 1,302). The standard of qualification, method or system, and subjects of examination are prescribed by the medical association of the State (_ib._, s. 1,303).

The board of medical examiners, on application, must examine an applicant for a certificate of qualification as a practitioner of medicine, and if he be found qualified, and of good moral character must issue a certificate (_ib._, s. 1,304).

Physicians having a license as above before the organization in a county of a board, are on application thereto entitled to a certificate without examination and to be registered as licensed practitioners of medicine (_ib._, s. 1,305).

The certificate is a license throughout the State. It must be recorded in the office of the judge of probate of the county in which the person resides at the time of issue. Upon recording it, the judge must indorse a certificate of record and sign it and affix the seal of the court (_ib._, s. 1,306). Such certificate, or, if lost, a certified copy of the record, is evidence (_ib._, s. 1,307).

PENALTY.—A contract for the services of a physician or surgeon is void unless he has authority to practise; proof of authority is not required at trial except on two days’ notice (_ib._, s. 1,318).

Practising medicine or surgery without a certificate is a misdemeanor under a penalty of a fine of from $25 to $100. This provision is not applicable to physicians practising medicine in Alabama in 1890, who are graduates of a respectable medical college and have complied with the law by having their diplomas recorded by the judge of probate in the county where they practise; nor to a physician who has practised in the State for the past five years (Act 1890-91, c. 376); nor to women practising midwifery (Code 1887, s. 1,308).

FEES.—The statutory fees are as follows:

To judge of probate, for record of diploma, or license or certificate, $1 (_ib._, s. 1,298, 1,299, 1,306).

To board of medical examiners, for examination, actual expenses (_ib._, s. 1,304).

ARIZONA.

QUALIFICATION.—It is unlawful for any person to practise medicine, surgery, or other obstetrics unless he have a diploma regularly issued by a medical college lawfully organized under the laws of the State wherein it is located, or a license issued and authorized by a board of medical examiners under and by virtue of the laws of any State or Territory. The diploma must state that the person named is qualified to practise medicine and surgery in all of its departments (Penal Code, 1887, s. 617, as amended Act of April 11th, 1893).

A diploma granted for moneyed consideration or other article of value alone, or revoked or cancelled by the college by which it was issued or by act of the legislature, is not a sufficient qualification (_ib._, s. 618).

Every practitioner of medicine, surgery, or obstetrics must register in the county recorder’s office his name, residence, and place of birth, and present his diploma or license, and the county recorder must make a copy of it under the record of his name, residence, and place of birth. The person registering must subscribe and verify an affidavit in writing, annexed to the copy as transcribed, that he is the identical person named in the diploma (_ib._, s. 619, as amended by Act of April 11th, 1893).

DEFINITION, EXCEPTION.—Any person is regarded as practising medicine who professes publicly to be a physician or habitually prescribes for the sick, or appends to his name “M. D.,” but the act does not prohibit gratuitous services in cases of emergency; nor apply to lawfully commissioned surgeons and assistant surgeons of the United States army and those who were commissioned and mustered into the United States service in the great rebellion, or physicians or surgeons who have been in active practice for ten years and at least three years in the Territory, nor prevent practice and receiving pay in localities fifteen miles or more from the residence or office of a regular physician (_ib._, s. 620).

OFFENCE.—Violation of the act is a misdemeanor (_ib._, s. 621).

FEES.—To the county recorder, for registration, $5 (_ib._, s. 619).

ARKANSAS.

QUALIFICATION.—It is unlawful for any one to engage in the practice of medicine and surgery, or either, as a calling except as provided in the statute (Act April 14th, 1893, s. 1).

A person engaging in the practice of medicine or surgery must be of good moral character, twenty-one years of age, and a graduate of some reputable college of medicine and surgery that requires for graduation not less than two courses of lectures, each in a different year (_ib._, s. 2).

Before engaging in practice, such person must exhibit his diploma to some county clerk of the State and have it recorded. The clerk must give him a certificate of record, which may be attached to the diploma (_ib._, s. 3).

In all cases of doubt as to the reputability of a college, it is the duty of the clerk of the county court, when a diploma is offered for record, to make inquiry of the Secretary of the State where the said college exists as to its reputability and requirements for graduation, and if the said clerk shall find that the said college does not conform to the requirements of this article, he shall not receive the diploma and the holder shall not be allowed to practise in the State. The aggrieved applicant may apply to the State board of medical examiners, whose decision shall govern the clerk in his action (_ib._, s. 4).

If after recording any diploma it shall come to the knowledge of the clerk making the record, or any other judicial or executive officer of the State, that the record was obtained by fraud or misrepresentation, it shall be his duty to institute before the said court of record proceedings to have such record reversed, and the holder of the diploma shall be judged guilty of a misdemeanor (_ib._, s. 5).

EXCEPTIONS.—The act does not affect the standing of any one practising at the time of its passage by virtue of a license under the then existing law, nor any one then legally engaged in the practice of medicine and surgery, nor does it prevent midwives from practising their calling or any one else from giving such simple domestic remedies as they are in the habit of using (_ib._, s. 6).

EXAMINATIONS.—The constituted State board of medical examiners is authorized to examine persons having no diploma from a medical college, and if found qualified to practise medicine and surgery issue a certificate entitling the holder to practise in this State (_ib._, s. 7).

SYSTEMS, DEFINITION.—No discrimination of schools of medicine is allowed. Any person who prescribes or administers medicine except as provided in sec. 6 is deemed a physician (_ib._, s. 8).

PENALTY.—The violation of this act is a misdemeanor punishable with a fine of from $25 to $100. Each day of practice is a separate offence (_ib._, s. 9).

DATE.—The act took effect ninety days after its passage (_ib._, s. 10).

FEES.—To the county clerk, for recording, $1.50.

For certificate of record the county clerk is not allowed to charge a fee (_ib._, s. 3).

CALIFORNIA.

QUALIFICATION.—Every person practising medicine or surgery in any of its departments must present his diploma to the board of examiners with affidavits. If the board finds all facts required to be stated in the affidavit to be true, it issues a certificate conclusive in any part of the State (Act 1877-78, c. 576; amending Act 1875-76, c. 518).

The secretary of the board receives applications. The board issues certificates to all who furnish satisfactory proof of having received diplomas or licenses from legally chartered medical institutions in good standing (Act 1875-76, c. 518, s. 3).

The medical society of the State, the eclectic medical society of the State, and the State homœopathic medical society each appoint annually a board of seven examiners who must be regular graduates (Act 1877-78, c. 576; amending Act 1875-76, c. 518).

The board examines diplomas as to genuineness. The affidavit accompanying the diploma must state that the applicant is its lawful possessor, and the person therein named; that the diploma was procured in the regular course of medical instruction and without fraud or misrepresentation of any kind, and that the medical institution granting it had, at the time of granting the same, a full corps of medical instructors, and was at said time a legally incorporated institution, actually and in good faith engaged in the business of medical education, and in good standing as a medical institution, and that the applicant had complied with all the requirements of said institution. The affidavit may be taken before any person authorized to administer oaths, and must be attested under the hand and official seal of the officer, if he have a seal. The board may hear such further testimony as they deem proper to hear as to the verification of the diploma or the identity of the person, or the manner in which the diploma was procured, and if it appears that any fact stated in the affidavit is untrue, the application is rejected. No board entertains an application rejected by another; a rejected application cannot be renewed for at least one year (_ib._, s. 4, as amended by Act 1877-78,