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]