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,

c. 918); no certificates are granted except to persons presenting

diplomas or licenses from legally chartered medical institutions in

good standing (_ib._, s. 5).

Certificates must be recorded in the county of residence and the record

indorsed thereon. A person removing to another county to practise must

procure an indorsement to that effect on his certificate from the

county clerk, and must record the certificate in the county to which he

removes (_ib._, s. 6).

The board refuses certificates to individuals guilty of unprofessional

conduct. The applicant is given an opportunity to be heard, by

citation; the attendance of witnesses may be compelled by subpœna;

witnesses may be examined at the hearing by either side, and either

side may examine medical experts as to whether such conduct is

unprofessional; if it appears to the satisfaction of the board that

the applicant is guilty of the unprofessional conduct set out in the

citation, no certificate can be granted. No application is refused for

unprofessional conduct more than one year before the application. If

the holder of a certificate is guilty of unprofessional conduct, the

certificate must be revoked by board granting it; no revocation is

valid without similar proceedings to the foregoing (_ib._, s. 10).

DEFINITION.—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.”

EXCEPTIONS.—The act does not prohibit gratuitous services in cases of

emergency; nor apply to lawfully commissioned surgeons of the United

States army or navy practising their profession (_ib._, s. 11, as

amended 1877-78, c. 576).

ITINERANT VENDERS.—A license of $100 a month is exacted from itinerant

venders of drugs, nostrums, ointments, or appliances for treatment

of disease, and from persons publicly professing to cure or treat

disease, injury, or deformity by any medicine, drug, or drugs, nostrum,

manipulation, or other expedient (Act 1877-78, c. 576, amending Act

1875-76, c. 518, s. 12).

PENALTY.—The penalty for violation of the act is a fine of from $50 to

$500, or imprisonment in the county jail from 30 to 365 days, or both,

for each and every offence. Filing or attempting to file the diploma or

certificate of another, or a forged affidavit of identification, is a

felony, punishable the same as forgery (_ib._, s. 13; Act 1877-78, c.

918, s. 7).

FORMER PRACTITIONERS.—Holders of certificates theretofore granted by

the board of examiners existing by the appointment of the California

State Medical Society of Homœopathic Practitioners are excused by the