PROFESSIONAL EVIDENCE.
It was decided nearly one hundred years ago, in the Duchess of
Kingston’s case, that a medical man has no privilege to avoid giving in
evidence any statement made to him by a patient, but that he is bound
to disclose, when called upon to do so in a court of justice, every
communication, however private and confidential, which has been made to
him by a patient while attending him in a professional capacity [225].
This has often been deemed a grievance by medical men, and considered
a compulsory breach of professional ethics; for the relations between
patient and physician, being necessarily of a confidential character,
communications made to a physician are looked upon, by the profession,
as confessions which should be kept religiously locked in the brain of
the physician. Lord Mansfield said, “If a medical man was voluntarily
to reveal those secrets, to be sure he would be guilty of a breach of
honour and of great indiscretion, but to give that information which by
the law of the land he is bound to do will never be imputed to him as
any indiscretion whatever” [226].
A French writer says, the tribunals neither ought, nor have they the
power, to exact from a physician the revelation of a secret confided to
him because of his office; at all events, he may and ought to refuse
to tell. Religion, |94| probity, nay, the rights of society, make
this the law. Still more are we bound to secrecy when not compelled
to disclose. Upon this point casuists and jurisconsults are of one
opinion [227].
These communications between physician and patient, which may relate
to the history of a transaction in which a wound has been received,
or a particular disease communicated, whenever essential to the
treatment of the patient’s case, are in some States of the American
Union considered privileged communications, which the physician is
either expressly forbidden, or not obliged, to reveal. This is the
law in Arkansas, California, Indiana, Michigan, Iowa, Missouri,
Minnesota, Montana, New York, Ohio and Wisconsin. In Wisconsin he is
not compelled, and in the other States named he is not allowed to make
the disclosure; but in Minnesota the prohibition extends only to civil
cases; and in Iowa, Indiana and Minnesota, the seal can be removed by
the patient himself. In these States the confession, in order to be
protected against disclosure, must relate exclusively to such matters
as are indispensable to the professional treatment of the patient.
Communications made outside of this sphere acquire no immunity from
having been entrusted to physicians, for at common law such are not
deemed privileged, and wherever so recognized they are the creatures of
statutory enactment [228].
As stated, in some of the above-mentioned States, the party interested
may waive the privilege, in which case the communication may be
disclosed [229]. But in New York it is expressly enacted that “no
person duly authorized to practise physic, or surgery, shall be allowed
to disclose any information which he may have acquired in attending any
|95| patient in a professional character, and which information was
necessary to enable him to prescribe for such patient as a physician,
or to do any act for him as a surgeon” [230].
Yet, even there, the statute will not be construed so as to shield
a person charged with a crime, instead of being a protection to the
victim, the patient [231].
The seal upon the physicians lips is not taken away by the patient’s
death [232].
Necessarily all communications to be privileged must be of a lawful
character, and not against morality or public policy; hence a
consultation as to the means of procuring an abortion on another is
not privileged; nor, by parity of reason, would any similar conference
which was held for the purpose of devising a crime or evading its
consequences [233].
It must appear not only that the information was acquired during
professional attendance, but was such as was necessary to enable the
physician to prescribe. It is for the party objecting to shew that the
information sought to be obtained is within the statutory exclusion.
“It will not do to extend the rule of exclusion so far as to embarrass
the administration of justice. It is not even all information which
comes within the letter of the statute which is to be excluded. The
exclusion is aimed at confidential communications of a patient to
his physician, and also such information as a physician may acquire
of secret ailments by an examination of the person of his patient.
The policy of the statute is to enable a patient, without danger of
exposure, to disclose to his physician all |96| information necessary
for his treatment. Its purpose is to invite confidence and to prevent
a breach thereof. Suppose a patient has a fever, or a fractured leg or
skull, or is a raving maniac, and these ailments are obvious to all
about him, may not the physician who is called to attend him testify
to these matters?” “Before information sought to be obtained from
physicians, witnesses, can be excluded the court must know somewhat of
the circumstances under which it was acquired, and must be able to see
that it is within both the language and the policy of the law” [234].
A report of the medical officer of an insurance company on the health
of a party proposing to insure his life is not privileged from
production; nor is the report of a surgeon of a railway company, as to
the injuries sustained by a passenger in an accident, unless such a
report has been obtained with a view to impending litigation [235].
Representations made by a sick person of the nature and effects of the
malady under which he is suffering are receivable as original evidence,
whether made to a physician or to any other; though, if made to a
physician, they are entitled to greater weight than if made to a man
incapable of forming a correct judgment respecting the accuracy of the
statements, from unacquaintance with the symptoms of diseases [236].
When the bodily or mental feelings of a party are to be proved, his
exclamations or expressions indicating present pain or malady are
competent evidence [237]; and |97| the complaints and statements of
the injured party, if made at the very time of the occurrence, are
admissible as _res gestæ_, not only as to the bodily suffering, but
as to the circumstances of the occurrence; and the time in question
is not the time of injury, but the time when it is material to prove
a condition of bodily or mental suffering, and that may be material
for weeks, and perhaps months, after an injury has been inflicted.
The statements are admissible even though made after the commencement
of an action, though this may be a circumstance to detract from the
weight of the evidence of a physician, so far as it was founded on
the statements [238]. But statements or declarations of a sick or
injured person, referring to his state and condition at a time past,
and not furnishing evidence of a present existing malady, are to be
carefully excluded, whether made to an expert or a non-expert [239],
and statements in writing by patients to a medical man, describing
the symptoms of the illness upon which the physician has advised the
patient, are also inadmissible in evidence [240]. It has been said in
Illinois, that as a physician must necessarily, in forming his opinion,
be, to some extent, guided by what the sick person may have told him in
detailing his pains and sufferings, not only the opinion of the expert,
founded in part upon such data, is receivable in evidence, but that he
may state what the patient said in describing his bodily condition, if
said under circumstances which free it from all suspicions of being
spoken with reference to future litigation and give it the character of
_res gestae_ [241]. |98|
On the other hand, in Massachusetts, in an action for personal
injuries, a surgeon who had attended plaintiff was held competent to
testify as to plaintiff’s condition from what he saw, but not from
anything the patient told him [242]. A physician testified that the
plaintiff stated she had received a blow in the stomach. The Court said
that it would clearly have been competent for the physician, after
having testified to the plaintiff’s condition and to the complaints
and symptoms of pain and sufferings stated by her, to have given his
opinion that they were such as might have been expected to follow
the infliction of a severe blow. But it was not competent for the
physician to testify to her statement that she had received a blow in
her stomach [243]. And in Tennessee, the statement made by a man when
his wounds were being examined, as to who made them, or as to the
instrument with which they were inflicted, was deemed inadmissible [244].
Memoranda, although not legal instruments in the proper sense of the
term, have been considered as an inferior class of records, and as
such entitled to some standing in courts. Such minutes of past facts
may be used by experts while under examination, but only to refresh
their memory, and not to take its place. For this purpose they may use
written entries in note books, or even copies of them, provided always
they can swear to the truth of the facts as there stated. Yet, if they
can not from recollection speak to the fact any farther than as finding
it stated in a written entry, their testimony will amount to nothing.
It is not necessary that the writing should have been made by the
expert himself, nor even that it should be an original |99| writing,
provided, after inspecting it, he can testify to the facts from his own
recollection [245].
The English and American authorities agree that medical, or other
scientific books, are not competent evidence in courts of law; they
cannot be put in evidence, although the medical witnesses state that
such books are works of authority in medicine. Tindal, C.J., thought
that witnesses might be asked whether in the course of their reading
they had found such-and-such a rule laid down; they might be asked how
far their opinion was founded on books, and might refer to such books;
they might be asked their judgment on the point, and the grounds of
it, which may be in some degree founded on these books, as a part of
their general knowledge, but the book itself could not be read. And
as late as 1875, Mr. Justice Brett refused to allow Taylor’s Medical
Jurisprudence to be read to the jury, saying: “That is no evidence in
a court of justice. It is a mere statement by a medical man of hearsay
facts of cases at which he was, in all probability, not present. I
cannot allow it to be read.” And the refusal seems to be the rule in
England. And Redfield, C.J., says, that when objected to, these books
have not generally been allowed to be read in the United States, either
to the Court or jury. And a very recent writer says, “The result of the
cases on this subject shews clearly that the very decided weight of
authority is against the admissibility in evidence of standard medical
treatises.” Such is the rule in England, Ontario, Indiana, Maine,
Maryland, Massachusetts, Michigan, North Carolina, Rhode Island and
Wisconsin, supported by _dicta_ in California and New Hampshire, and
opposed by decisions in Alabama and Iowa [246]. |100|
In Iowa and Wisconsin such books have been allowed to be read, the
Court in one case remarking, “The opinion of an author, as contained
in his works, we regard as better evidence than the mere statement of
those opinions by a witness, who testifies as to his recollection of
them from former reading. Is not the latter secondary to the former?
On the whole, we think it the safest rule to admit standard medical
books as evidence of their opinions upon questions of medical skill or
practice involved in the treatment.” In Wisconsin, however, the court
seems now to have overruled its earlier decisions, and to have sided
with the majority [247].
In Illinois, a witness may, to test his knowledge, be cross-examined
as to his reading of particular authors upon the subject, and as to
whether reputable writers do not entertain certain views upon the
subject. Paragraphs from standard authors, treating of the disease in
question, may be read to the witness, and he may be asked if he agrees
therewith, as one of the means of testing his knowledge; but care
should be taken by the court to confine such cross-examination within
reasonable limits, and to see that the quotations read are fairly
selected so as to present the author’s views. Mr. Rogers questions the
wisdom of this decision [248]. The witness, however, cannot read from a
scientific work in his examination in chief, though he be an expert and
agree with the views expressed by the author [249]. Nor can a passage
from a book be got before a jury as evidence in an indirect manner,
when it cannot be read to them. So it was decided where a medical man
was asked if he was acquainted with a certain book; he replied, that he
had heard of it, but had not read it. He was then asked |101| whether
it was considered good authority, and he said it was. He was then asked
to read a certain paragraph; this he did, and was re-called. Counsel
then read from the book the same paragraph and asked if such a case as
that stated was reported. Held to be error [250]. And in Ontario it has
been held improper to ask medical witnesses, on cross-examination, what
books they consider best upon the subject in question, and then to read
such books to the jury; but they may be asked whether such books have
influenced their opinion [251].
Although, as a rule, scientific books cannot be read to a jury as
evidence, they may be read to discredit the testimony of experts, who
claim to be familiar with them and refer to them as authority. Where
one borrows credit for his accuracy, by referring to books treating of
the subject, and by implying that he echoes the standard authorities,
the book may be resorted to, to disprove the statement of the witness,
and to enable the jury to see that the book does not contain what
he says it does, and thus to disparage the witness, and hinder the
jury from being imposed upon by a false light [252]. It has been held
again and again that scientific books cannot be read by counsel to
the jury as a part of their argument. Shaw, C.J., of Massachusetts,
says, “Facts or opinions cannot be laid before the jury, except by
the testimony under oath of persons skilled in such matters.” Again,
“where books are thus offered (_i. e._, to be read in argument), they
are, in effect, used as evidence, and the substantial objection is,
that they are statements wanting the sanction of an oath; and the
statement thus proposed is made by one not present, and not liable to
cross-examination. If the same author were cross-examined, and |102|
called to state the grounds of his opinions, he might, himself, alter
or modify it, and it would be tested by a comparison with the opinions
of others. Medical authors, like writers in other departments of
science, have their various and conflicting theories, and often defend
and sustain them with ingenuity. But as the whole range of medical
literature is not open to persons of common experience, a passage may
be found in one book favorable to a particular opinion, when, perhaps,
the same opinion may have been vigorously contested, and, perhaps,
triumphantly overthrown, by other medical authors, but authors whose
works would not be likely to be known to counsel or client, or to
Court or jury. Besides, medical science has its own nomenclature, its
technical terms and words of art, and also common words used in a
peculiar manner, distinct from the received meaning in the general use
of the language. From these and other causes, persons not versed in
medical literature, though having a good knowledge of the general use
of the English language, would be in danger, without an interpreter,
of misapprehending the true meaning of the author. Whereas a medical
witness could not only give the fact of his opinion, and the grounds on
which it is formed, with the sanction of his oath, but would also state
and explain it in language intelligible to men of common experience.
If it be said that no books should be read, except works of good
and established authority, the difficulty at once arises as to the
question, what constitutes “good authority?” [253].
In an English case, counsel, in addressing the jury, attempted to quote
from a work on surgery; Alderson, B., would not allow him, saying,
“You surely cannot contend that you may give the book in evidence,
and if not, what right have you to quote from it in your address, and
do that indirectly which you would not be permitted to do in |103|
the ordinary course?” In Massachusetts, North Carolina, Michigan,
California and New York, similar decisions have been given [254]; and
in giving the dissenting opinion in _State and Hoyt_ [255], Loomis, J.,
said, “Books may be crazy as well as men, and all sorts of theories
relative to responsibility for crime are advocated in books. Courts do
not take judicial notice of standard medical or scientific works, and
the standard works of to-day may not long continue such, owing to new
discoveries and advancing knowledge.” In this case the question was
as to reading medical books on insanity on trials where the question
of insanity arose; the book was Ray’s “Medical Jurisprudence of
Insanity.” In a still later case [256], it was held to have been error
for the attorney, on the argument, to read to the jury extracts from
Browne’s “Medical Jurisprudence of Insanity.” The Court said, that it
is peculiarly important that a defendant charged with a crime should be
confronted by the expert witnesses against him, and that they should be
cross-examined in his presence. But when the opinions of a writer are
permitted to go to the jury, the writer is not sworn or cross-examined.
If held admissible the question (of insanity) may be tried, not by the
testimony, but upon excerpts from works presenting partial views of
variant and perhaps contradictory theories [257].
In Connecticut, however, in a murder case the Court (Loomis, J., and
Park, C.J., out of the five Judges dissenting,) held, that standard
medical works on insanity might be read to the jury by the counsel for
the accused, when |104| discussing the question of his insanity. It
was said that “in this jurisdiction (that of Connecticut) for a long
series of years counsel have been permitted to read to the jury, as
a part of their argument upon this part of their case, extracts from
such treatises as by the testimony of experts have been accepted by
the profession as authority upon that subject, such treatises as have
helped to form the opinion expressed by the expert. The practice by
repetition has hardened into a rule” [258]. In Indiana, it was held that
if the extracts were merely argumentative and contained no opinions
that could be regarded as properly matters of evidence, they might be
admitted, subject to the instructions of the Court as to the law of
the case and under the warning that they were not evidence. In Texas
and in Delaware, similar decisions have been given [259]. And in Ohio,
where, at the trial of a cause, counsel was forbidden to read to the
jury Youatt’s work on Veterinary Surgery, the Court, on appeal, said,
“It is not to be denied, but that a pertinent quotation or extract from
a work on science or art, as well as from a classical, historical, or
other publication, may, by way of argument or illustration, be not only
admissible, but sometimes highly proper, and it would seem to make no
difference whether it was repeated by counsel from recollection or
read from a book. It would be an abuse of this privilege, however,
to make it the pretence of getting improper matter before the jury
as evidence in the cause.” As it did not appear that the proposed
quotation was relevant or came within the appropriate and legitimate
scope of the argument, or that the party was injured by its exclusion,
the Court would not reverse on this ground [260]. Where the reading
is allowed, it seems to be considered “a valuable privilege, yet so
susceptible of abuse, that the |105| extent and manner of its exercise
must be entrusted in a great measure to the sound discretion of the
Court;”—“not a practice ever sanctioned directly or indirectly by the
Court, nor one which has generally been considered by the Judges as of
binding force in law, but rather as subject to the discretion which, it
is true, has been usually exercised in favor of the accused in capital
trials” [261].
Where the exclusion rule obtains, counsel in addressing the jury has
no right to quote the opinions of medical men as given in their works;
if they do, it is the duty of the Court to instruct the jury that such
books are not in evidence but theories simply of medical men [262]. But
there is no question that, under all circumstances, books of science
may be read in argument to the Court.
Medical men are often called to give evidence as to dying declarations
where there is a charge of homicide, and where the cause of the death
of the declarant is the subject of the declaration. They should
remember that the declaration will not be admissible unless the
deceased was conscious of approaching death and made it under a sense
of his impending doom; any hope of recovery, however slight, renders
the declaration inadmissible; and the question turns rather upon the
expectation of death at the time of making the declaration than upon
the interval between it and the death [263].
An entry made by a medical man, in the course of his profession, is
admissible in evidence after his death, if it be against his interest;
and such an entry will be received as evidence of collateral and
independent matter, etc. When |106| the question was as to the age
of a child, the book of the accoucheur who attended the mother was
produced; it contained an entry as follows, “W. Fowden, Jun.’s, wife;
_Filius circa hor. 3 post merid. nat._ etc. W. Fowden, 1768, April 22.
_Filius natus_ wife, £1 6s. 1d.; Pd. 25 Oct. 1768.” The word “Paid”
was against the pecuniary interest of the accoucheur, so the entry was
admitted to prove the date of the birth [264].
In England the rule is thus laid down as to excluding experts from
the room during the examination of witnesses; “medical or other
professional witnesses, who are summoned to give scientific opinions
upon the circumstances of the case as established by other testimony,
will be permitted to remain in court until this particular class of
evidence commences, but then, like ordinary witnesses, they will have
to withdraw, and to come in one by one, so as to undergo a separate
examination.” A similar rule prevails in Scotland and in the United
States [265].
It would seem that the court has power to limit the number of experts
in any case [266].
Taylor, in his well-known work on “Medical Jurisprudence,” lays down
many valuable suggestions for the guidance of medical witnesses;
among other things, he says, “In reference to _facts_, a medical
witness must bear in mind that he should not allow his testimony to
be influenced by the consequences that may follow from his statement
of them, or there probable effect on any case which is under trial.
In reference to _opinions_, their possible influence on the fate of
a prisoner should inspire caution in |107| forming them; but, when
once formed, they should be honestly and candidly stated, without
reference to consequences.” “The questions put on either side should
receive direct answers from the medical witness, and his manner should
not be perceptibly different whether he is replying to a question
put by the counsel for the prosecution, or for the defence.” “The
replies should be concise, distinct and audible, and except where
explanation may be necessary, they should be confined strictly to
the terms of the question.” “Answers to questions should be neither
ambiguous, undecided, nor evasive.” “The replies should be made in
simple language, free from technicality.” “A medical witness may,
without any imputation upon his _bona fides_, explain medical points to
counsel, and correct him on medical subjects, when wrong in his views
or statements, but he should avoid even the appearance of prompting
counsel in the conduct of the case.”
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