ARTICLES XXXIV-XXXVI. PRIVILEGED COMMUNICATIONS. PRIVILEGED MEDICAL COMMUNICATIONS. BY DAVID W. CHEEVER, M.D. OF BOSTON. THE WORKINGS OF THE NEW YORK LAW. BY WALTER SOREN, Esq. OF BROOKLINE. PRIVILEGED COMMUNICATIONS TO BY FREDERICK J. STIMSON, Esq. OF DEDHAM. READ JUNE 10, 1903. ARTICLE XXXIV. PRIVILEGED MEDICAL COMMUNICA TIONS. BY DAVID W. CHEEVER, M.D. OF BOSTON. In a court of justice a communication is called privileged if the witness may legally refuse to divulge it; or where he may be protected or sustained by the court, if he declines to answer. Such are the statements or revelations of a prisoner to his legal counsel. A privileged medical communication would be one made by a patient to his physician. The Roman law protected the physician. And among Latin countries France made it a penal offence for the physician to disclose the confidence of his patient. But the English common law, so lenient to the accused in most respects, assumes another position in regard to medical witnesses, and obliges them to answer, or be held in contempt of court, and subject to imprisonment. "The highest legal authorities in England have decided that medical men enjoy no special privilege with regard to secrets of a professional nature." "In other words, no practitioner can claim exemption from answering a question because the answer may or would involve a violation of secrecy, or even implicate the character of his patient."* • Prof. Tidy. The law of Massachusetts follows the English law. To quote an authority: "Neither is protection extended to medical persons in regard to information they have acquired confidentially by attending in their professional characters."* Again: "By the common law of Massachusetts the physician is obliged to state publicly, on the witness stand, whatever may have been told him by his patient, even although involving character or family secrets." Every New England State has the same law; so, also, Alabama, Delaware, Florida, Georgia, Mississippi, North Carolina, New Jersey, Pennsylvania, South Carolina, Tennessee, Texas, Virginia, W. Virginia. New York, however, follows the Latin precedent, and goes even farther, as follows: "No person duly authorized to practise physic and surgery, shall be allowed to disclose any information which he acquired in attending a patient in a professional capacity, and which was necessary to enable him to act in that capacity." A similar law governs priests and attorneys. The New York law was subsequently amended so as to allow a physician to testify, in cases of wills, as to the mental or physical condition of the deceased, except confidential communications, and such as might disgrace the memory of the patient. The following states have adopted similar laws: Arkansas, California, Colorado, North and South Dakota, Idaho, Indiana, Iowa, Kansas, Michigan, Minnesota, Missouri, Montana, Nebraska, Nevada, Ohio, Oklahoma, Oregon, Utah, Washington, Wisconsin, Wyoming. Eighteen states copy Massachusetts. Twenty-two states follow New York. The remaining states we are unable, just now, to determine. Such is the law. What are the evils? Indiscretion, weakness, fear, sin, all seek the family physician as a father confessor. He holds the honor of the *Greenleaf on Evidence. patient and the character and social standing of families in his hands. He knows what no other knows; and he often knows what is unknown in the family itself. In every relation of human life the doctor holds, and holds sacred, the secret history of many families; and carries to the grave with him knowledge which would revolutionize the life of whole communities. The mischief of telling is so much greater than the mischief of concealing, that the simplest principle of expediency should forbid the revelation. Every instinct of honor, propriety, decency, is arrayed against it. Hippocrates laid an obligation on his students that nothing heard in the sick room should ever go outside it. The wisdom of former ages is only confirmed by the experience of to-day. Does any one doubt it? Even judges and lawyers acknowledge its force. Says an English judge, "If a medical man were voluntarily to reveal these secrets, to be sure, he would be guilty of a breach of honor and of a great indiscretion; but in a court of justice medical men are bound to reveal secrets, when required to do so." Said a Massachusetts lawyer to an unwilling medical witness, before the trial, "you shall have plenty of room to kick!" Public opinion, not to consider professional opinion, would revile and contemn the man who betrayed confidence. Such opinion says, "you must not tell" The law says, "it may be dishonorable, but you have got to tell." Can any position be more false and more cruel for the honorable man? I quote the London Lancet of May 9, 1896, on the Playfair case. "Never was the question of professional etiquette more forcibly presented. There is no written code to guide the practitioner." "There are [things] which it would be subversive to every moral rule to divulge; there |