Note on Privilege of Professional Information of Physician. People v. Brower, 53 Hun, 217; s. c. 6 N. Y. Supp., 730 (defendant in an indictment for aiding a miscarriage upon summoning a physician to the woman's aid, stated in reply to the physician's inquiry what the matter was. Held, that such communication was privileged); Matter of Hoyt, 20 Abb. N. C., 162 (a physician's affidavit as to his patient's mental condition cannot be used upon an application to appoint a committee for him as an habitual drunkard). Texas: Steagald v. State, 1887, 3 Southwest. Rep., 771 (in absence of statute, communications by patient to physician are not privileged). Who May Claim the privilege : People v. Harris, 136 N. Y., 423; s. c. 33 Northeast. Rep., 65, (upon a trial for murder defendant cannot object to the testimony of deceased's physician, since the privilege is not conferred to shield the murderer of the patient). The Manner of Objecting: Michigan: Breisenmeister v. Supreme Lodge, K. of P., 1890; 45 Northwest. Rep., 977 (after a physician's testimony has been received without objection, it cannot be stricken out upon motion as a matter of right). New York: Hoyt v. Hoyt, 112 N. Y., 493; s. c. 20 Northeast. Rep., 402 (upon a contested probate after proponent has called and examined testator's physician without objection, and contestant has cross-examined him, his testimony will not be stricken out on contestant's motion); Record v. Village of Saratoga Springs, 46 Hun, 448 (in absence of anything to show the contrary, one acting as a physician will be presumed to have had the necessary license in determining upon appeal whether his testimony had been properly admitted); Stowell v. American Co-operative Relief Assn., 5 N. Y. Supp., 233, (one who seeks to exclude a physician's testimony must show the facts to bring the testimony within the statute; and where the physician testifies that he was not acting professionally and there is nothing to show the contrary, his testimony may be admitted); Patten v. United Life, etc. Ins. Assn., 133 N. Y., 450; s. c. 31 Northeast. Rep., 342 (an objection that a physician's testimony is incompetent and irrelevant is not sufficient to raise the objec Note on Privilege of Professional Information of Physician. tion that it relates to a privileged communication within Code Civ. Pro., 834). Waiver of the privilege : 2. California: Valensin v. Valensin, 1887, 14 Pacific Rep., 397, (where the client waives the privilege the physician may be compelled to testify). Indiana: Lane v. Boscourt, 1891, 27 Northeast. Rep., 1111 (in an action against a physician for malpractice the introduction by plaintiff of testimony by himself, his wife and her mother as to all that was done by defendant at the time of the operation constitutes a waiver of any objection to defendant's testimony as to what he did do); Morris v. Morris, 119 Ind., 341; s. c. 21 Northeast. Rep., 918 (testator's legal representatives seeking to maintain his will may waive the objection. as to the testimony of testator's physician); Williams . Johnson, 1887 (the calling of a physician merely to testify that he attended plaintiff does not waive the privilege). Iowa: McConnell v. City of Osage, 1890, 45 Northwest. Rep., 550 (the fact that plaintiff testified as to her general good health during several years, and that a certain physician attended, does not constitute a waiver to the testimony of such physician). Michigan: Brown v. Metropolitan Life Ins. Co., 1887, 32 Northwest. Rep., 610 (in an action on a life policy where deceased had stated in her application that she had been treated for typhoid fever by a physician, the physician may testify as to whether he had so treated her); Breisenmeister v. Supreme Lodge, K. of P., 1890, 45 Northwest. Rep., 977 (statements in the proof of death under a life policy by deceased's physician are a waiver of the privilege so far as they relate to matters that are privileged; and a party who has waived the privilege on one trial cannot claim it on a new trial). Missouri: Davenport v. City of Hannible, 1892, 18 Southwest. Rep., 1122 (the patient may waive the privilege); s. p. Carrington v. City of St. Louis, 89 Mo., 208; s. c. 1 Southwest. Rep., 240; Blair v. Chicago, etc. Ry. Co., 89 Mo., 334; s. c. 1 Southwest. Rep., 367 (in an action for personal injuries to plaintiff's wife, the wife's physician may testify if both husband and wife waive the privilege); Thompson v. Ish, 1889; 12 Southwest. Rep., 510 (upon a contested probate a defendant devisee may waive Note on Privilege of Professional Information of Physician. the privilege as to the testimony of deceased's physician); Mellor v. Missouri Pac. Ry. Co., 1891, 14 Southwest. Rep., 758, (where one has two physicians he does not, by calling one to testify concerning his injury, thereby waive the incompetency of the other to testify against him); Adreveno v. Mutual etc. Life Assn., 34 Fed. Rep., 870, (under Mo. R. S., § 4017, a waiver by deceased in a life insurance application is binding on the beneficiary). Nevada: State v. Depoistor, 25 Pacific Rep., 200 (on an indictment for rape of a child of seven, held, that the parents of the prosecutrix could waive the privilege as to the testimony of the child's physician, and that such waiver might be implied from the fact that the parents instituted the prosecution and were with the child, the principal witnesses, and testified as to the nature of the complaint for which the physician prescribed). New York: McKinney v. Grand Street, etc. Ry. Co., 104 N. Y., 352; s. c. 10 Northeast. Rep., 544 (a party, by calling her physician as a witness, waives the privilege, and upon a subsequent trial the adverse party may call the physician and examine him as to the same matters); Marx v. Manhattan Ry. Co., 56 Hun., 575; s. c. 10 N. Y. Supp., 159 (where the plaintiff in an action for personal injuries himself testifies as to the consultation with his physician, he waives the privilege; but compare Butler v. Manhattan Ry. Co., 30 Abb. N. C., 78, holding that plaintiff by bringing an action for a miscarriage and putting her physical condition on trial did not waive the privilege); Treanor v. Manhattan Ry. Co., 28 Abb. N. C., 47; s. c. 14 N. Y. Supp., 270 (where the plaintiff in an action for personal injuries testifies without reservation as to his injuries and their effect, his physician may testify as to what he has learned of his condition); Record v. Village of Saratoga Springs, 46 Hun, 448 (the fact that one of the parties to an action introduces evidence concerning a consultation between her physician, another physician and the witness, does not waive the privilege as to communications between herself and physician); Alberti v. New York, Lake Erie, etc. R. Co., 118 N. Y., 77 (the privilege may be waived by the patient's attorney calling the physician as a witness and stating that he waives the privilege); Buffalo, etc. Safe Deposit Co. v. Knights Templars, etc. Assn. 126 N. Y., 450; s. c. 27 Northeast. Rep., Note on Privilege of Professional Information of Physician. 942 (in a suit upon an insurance certificate, a certificate as to the cause of deceased's death, given by the physician who attended him, and which was furnished the company by the claimant, is admissible in evidence); Jones v. Brooklyn, etc. R. Co., 3 N. Y. Supp., 253 (the privilege is not waived by the patient's bringing an action for an injury to his leg and by offering testimony to show that it was broken; nor by the fact that a physician who, acted for defendant, testified as to the amputation of the leg). I. Competency. (14) Pastor and Parishioner. NOTE ON INCOMPETENCY OF CLERGYMAN TO DISCLOSE COMMUNICATION OF PARISHIONER. This privilege did not exist at common law. Under the N. Y. Statute (Code Civ. Pro., § 833), a clergyman is not privileged from disclosing communications which were made to him, not in his professional character, nor in the course of discipline of his denomination. Thus, a conversation between the pastor and the treasurer of a religious corporation as to business of the church, upon affairs in respect of which the latter was charged with fraud, is not privileged. (Supreme Ct., 1835, People v. Gates, 13 Wend., 311, under 2 R. S., 406, § 72, of which C. C. P., § 833 is substantially a re-enactment.) |