be taken, or the care of a diseased or injured member. Any disobedience of such directions which contributes to prevent a recovery will bar him from his right of action for malpractice, even though the medical man may have been somewhat negligent.'

'This subject has been recently considered in Richards v. Willard, 176 Pa. St., 181; and it was held that if the injuries were attributable to negligent act of the patient,

in thai case leaving the hospital with a broken leg only partly healed, the patient cannot recover. And see also Pike v. Honsinger, 155 N. Y., 201 supra.

THE LAW OF EVIDENCE

CONCERNING

COMMUNICATIONS

BETWEEN

PATIENT AND PHYSICIAN.

BY

CHARLES A. BOSTON,

Counsellor-at-Law, of the New York City Bar.

EVIDENCE OF COMMUNICATIONS

BETWEEN PATIENT AND

PHYSICIAN.

PRIVILEGED COMMUNICATIONS.

COMMUNICATIONS between patient and physician may become pertinent to matters under investigation in judicial tribunals. They are sometimes, nevertheless, excluded by law from disclosure in evidence; they are then termed privileged communications. When such a disclosure is forbidden it is stated to be for reasons of public policy,' "because greater mischiefs would probably result from requiring or permitting its admission, than from wholly rejecting it."

EVIDENCE OF COMMUNICATIONS BETWEEN PATIENT AND PHYSICIAN UNDER THE RULES OF COMMON LAW.

Although the common law required an inviolable secrecy to be observed by attorneys with reference to the communications which they had received from their clients, still protection from disclosure in evidence in a court of justice was not extended to communications between a patient and his medical adviser.'

'Greenleaf Ev., s. 236; Taylor Ev., s. 908; Bouvier's Law Dictionary, p. 363; Am. and Eng. Enc. of Law, 1st ed., vol. 19, p. 122; Code Civ. Pro. Cal., s. 1881; Mills' Ann. Stats. of Col., 1891, s. 4,824; Rev. Stats. Idaho, 1887, s. 5,958; Gen. Stats. Minn., 1891, s. 5,094; Comp. Stats. Mont., 1887, s. 650; Gen. Laws Ore., 1892, s. 712; Comp. Laws Utah, 1888, s. 3,877.

Taylor Ev., s. 911; Stephen, Dig. of Ev., art. 115; Greenleaf Ev., s. 237.

The successive efforts made to extend protection by judicial ruling to communications between patient and physician will appear from a consideration of the cases

that are usually cited as authority for the English rule: Annesley v. Earl of Anglesea (1743), 18 How. St. Tr., 1, 139; Duchess of Kingston's case (1776), 20 How. St. Tr., 355 (cf. p. 572, p. 585, p. 586, p. 613); Wilson v. Rastall (1791), 4 Term R. (Durnford & East), 753; Rex v. Gibbons (1823), 1 C. & P., 97; Broad v. Pitt (1828), 3 C. & P., 518; Greenough v. Gaskell (1832), 1 My. & K., 98. See also Wheeler v. Le Marchant, 50 L. J. Ch., 795 (1880).

1 Phillips Ev., p. 136; Starkie Ev., p. 40; Wharton Ev., s. 606; Greenleaf Ev., secs. 248, 237, 239; Taylor Ev., s. 916; Stephen, Dig. of Ev., art. 115; Rogers' Expert

Reasons for the Distinction at Common Law between Communications to Legal and Medical Advisers.-It does not clearly appear, in any of the cases usually cited as authority, why the distinction is made between legal and medical advisers, but it is apparent that the privilege does not rest upon considerations of honor nor of confidence,' nor even upon the urgency of the situation under which the communication is made; for disclosures are made to a physician frequently to save life, or to a priest for reasons of very solemn import, while those made to an attorney insure at most protection from temporal annoyance. The privilege of attorneys seems to be founded upon considerations of public policy in the administration of justice in the courts; attorneys are a part of the system, Testimony, s. 45; Reynolds' Theory of Evidence, s. 86; 3 Rice Evidence, s. 209.

It is to be noted that none of the cases which are cited as authority for the common-law rule as usually stated are really precedents to that extent. The cases of the Duchess of Kingston (supra); Lord William Russell (9 How. St. Tr., 602); Dr. Ratcliff (9 How. St. Tr., 582); Earl Ferrers (19 How. St. Tr., 886), and Rex v. Gibbons (supra), were all criminal prosecutions; and in Annesley v. Anglesea, Wilson v. Rastall, Broad v. Pitt, and Greenough v. Gaskell (supra), which were civil causes, the question of the privilege of a medical man was not really in dispute. It is well settled that communications between attorney and client are privileged, and yet Judge Pitt Taylor expresses some doubt whether the protection cannot be removed without the client's consent in cases where the interests of criminal justice require the production of the evidence (Taylor Ev., s. 929). This intimation of a distinction between criminal and civil actions, even in the case of attorneys, suggests the possibility of a difference between those two classes of actions in the case of medical men. The cases cited establish authoritatively that in criminal prosecutions, at common law, confidential communications between patient and medical man are not privileged; but in civil causes, the

opinions of the eminent judges seem to be obiter dicta. It is, however, established by other decisions that mere confidential relations do not prevent the disclosure of communications. (For the case of bankers, see Loyd v. Freshfield, 2 C. & P., 325; managers, Anderson v. British Bank of Columbia, 45 L. J. Ch., 449; clerks, Lee v. Burrell, 3 Camp., 337; Webb v. Smith, 1 C. & P., 337; stewards, Vaillant v. Dodemead, 2 Atk., 524; Earl of Falmouth v. Moss, 11 Price, 455; Pursuivant of Herald's College, Slade v. Tucker, 49 L. J. Ch., 644; masons and members of secret societies, Owens v. Frank, 7 Wyo., 457 (1898); solicitor of patents, Brungger v. Smith, 49 Fed. Rep., 124 (Circuit Court of U. S. Dist. of Mass., 1892); bank examiner, Cox v. Montague, 78 Fed. Rep., 845 (U. S. C. C. A., 6th Cir., 1897); letter carrier. Smith v. Smith, 45 Atl. Rep., 848 (Del. Super., 1899).

The opinions of so many eminent men, though strictly speaking obiter dicta, together with the uniform statements of text-writers based upon them, leave no room for reasonable doubt that independent of statute, in civil as well as criminal causes, communications between patient and medical adviser are not entitled to protection from disclosure in evidence.

1 See Duchess of Kingston's case (supra, p. 91, note 3) 'cf. ib., pp. 572, 585, 586, 613).