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EVIDENCE OF 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 that are usually cited as authority Ev., s. 908 ; Bouvier's Law Diction- for the English rule : Annesley v. ary, p. 363; Am. and Eng. Enc. of Earl of Anglesea (1743), 18 How. Law, 1st ed., vol. 19, p. 122 ; Code St. Tr., 1,139 ; Duchess of KingCiv. Pro. Cal., s. 1881 ; Mills' Ann. ston's case (1776), 20 How. St. Tr., Stats. of Col., 1891, s. 4,824 ; Rev. 355 (cf. p. 572, p. 585, p. 586, p. Stats. Idaho, 1887, s. 5,958; Gen. 613); Wilson v. Rastall (1791), 4 Stats. Minn., 1891, s. 5,094 ; Comp. Term R. (Durnford & East), 753; Stats. Mont., 1887, s. 650 ; Gen. Laws Rex v. Gibbons (1823), 1 C. & P., Ore., 1892, s. 712; Comp. Laws 97; Broad v. Pitt (1828), 3 C. & P., Utah, 1888, s. 3,877.
518; Greenough v. Gaskell (1832), 1 * Taylor Ev., s. 911 ; Stephen, Dig. My. & K., 98. See also Wheeler v. of Ev., art. 115; Greenleaf Ev., s. Le Marchant, 50 L. J. Ch., 795 237.
(1880). * The successive efforts made to 1 Phillips Ev., p. 136; Starkie extend protection by judicial rul- Ev., p. 40; Wharton Ev., s. 606 ; ing to communications between Greenleaf Ev., secs. 248, 237, 239; patient and physician will appear Taylor Ev., 6. 916 ; Stephen, Dig. from a consideration of the cases 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 opinions of the eminent judges of Evidence, s. 86 ; 3 Rice Evidence, seem to be obiter dicta. It is, howas are grand jurors, petit jurors, and judges,' and even arbitrators;' but physicians are no part of that system, and a disclosure of confidences made to them in no way tends to weaken the system or render it ineffectual, while the compulsory examination of lawyers would tend to the suppression of the truth in litigation by discouraging confidence between attorney and client. This, perhaps, can be assigned as the reason for the distinction; a distinction which does not differentiate lawyers from physicians, but agents in the administration of justice from all others."
ever, established by other decisions It is to be noted that none of the that mere confidential relations do cases which are cited as authority not prevent the disclosure of comfor the common-law rule as usually munications. (For the case of bankstated are really precedents to that ers, see Loyd v. Freshfield, 2 C. & extent. The cases of the Duchess of P., 325; managers, Anderson v. Kingston (supra); Lord William British Bank of Columbia, 45 L. J. Russell (9 How. St. Tr., 602); Dr. Ch., 449 ; clerks, Lee v. Burrell, 3 Ratcliff (9 How. St. Tr., 582); Earl Camp., 337; Webb v. Smith, 1 C. & Ferrers (19 How. St. Tr., 886), and P., 337; stewards, Vaillant v. DodeRex v. Gibbons (supra), were all mead, 2 Atk., 524; Earl of Falcriminal prosecutions; and in An- mouth v. Moss, 11 Price, 455; Pur. nesley v. Anglesea, Wilson v. Ras- suivant of Herald's College, Slade tall, Broad v. Pitt, and Greenough v. Tucker, 49 L. J. Ch., 644; masons v. Gaskell (supra), which were civil and members of secret societies, causes, the question of the privilege Owens v. Frank, 7 Wyo., 457 (1898); of a medical man was not really solicitor of patents, Brungger v. in dispute. It is well settled that Smith, 49 Fed. Rep., 124 (Circuit communications between attorney Court of U. S. Dist. of Mass., 1892); and client are privileged, and yet bank examiner, Cox v. Montague, Judge Pitt Taylor expresses some 78 Fed. Rep., 845 (U.S.C. C. A., 6th doubt whether the protection can- Cir., 1897); letter carrier, Smith v. not be removed without the client's Smith, 45 Atl. Rep., 848 (Del. Super., consent in cases where the interests 1899). of criminal justice require the pro- The opinions of so many eminent duction of the evidence (Taylor Ev., men, though strictly speaking obiter s. 929). This intimation of a dis- dicta, together with the uniform tinction between criminal and civil statements of text-writers based actions, even in the case of attor- upon them, leave no room for reasonneys, suggests the possibility of a able doubt that independent of statdifference between those two classes ute, in civil as well as criminal of actions in the case of medical causes, communications between men. The cases cited establish au- patient and medical adviser are not thoritatively that in criminal pros- entitled to protection from disclos. ecutions, at common law, confi. ure in evidence. dential communications between See Duchess of Kingston's case patient and medical man are not (supra, p. 91, note 3) (cf. ib., pp. privileged; but in civil causes, the 572, 585, 586, 613).
Criticism of the Common-Law Rule.— Though the privilege of attorneys was adopted to enforce respect for the law as securing the rights of persons entitled to its protection, by establishing inviolable confidence between them and the officer who represents them in their dealings in the law, and though it was not the purpose of the law to enforce sentiment or to elevate one profession above another, the sentimental idea did not suffer neglect for the want of advocates. Justice Buller lamented the narrowness of the common-law rule," and Mr. Best has criticised it as harsh in itself, of questionable policy, and at variance with the practice in France and the statute law in some of the United States of America.*
Greenleaf Ev., secs. 249, 252, tion specified in this section (2 R. 252a.
S., p. 406, s. 73) was not privileged. • Greenleaf Ev., s. 249.
Mr. Phillips expressed the same 3 See Barnes v. Harris, 7 Cush., sentiments in his treatise on Evi576; Hatton v. Robinson, 4 Pick, dence, p. 104. The ground on which 422. See also historical review of communications to counsel are privthe attorney's privilege and the rea- ileged is the supposed necessity of sons for it, by Judge Selden, in Ro. a full knowledge of the facts, to chester City Bank v. Suydam, 5 advise correctly, and to prepare for How. Pr. (N. Y.), 254, and in Whit- the proper defence or prosecution of ing v. Barney, 30 N. Y., 330.
a suit. But surely the necessity of Wilson v. Rastall, 4 Term R., consulting a medical adviser, when 753.
life itself may be in jeopardy, is still > Best, Prin. of Ev., s. 582.
stronger. And unless such consultaThe revisers of the New York tions are privileged, men will be inStatutes in 1828 in their report (5 cidentally punished by being obliged N. Y. Stats. at Large, edited by to suffer the consequences of injuries John W. Edmonds, 2d ed., p. 726) without relief from the medical art, stated as their reason for suggesting and without conviction of any ofa statutory privilege for communi. fence. Besides, in such cases, durcations between physician and pa- ing the struggle between legal duty tient, that “in 4 Term Rep., 580, on the one hand and professional Buller, J. (to whom no one will at- honor on the other, the latter, aided tribute a disposition to relax the by a strong sense of the injustice rules of evidence), said it was 'much and inhumanity of the rule, will in to be lamented' that the informa- most cases furnish a temptation to These or similar reasons have pre- is a statute restricting in a special vailed in many States and Territo- manner the disclosures of a physi. ries to bring about a statutory re- cian where he is sued for causing striction on disclosures.
THE RULE IN THE UNITED STATES CONCERNING EVIDENCE OF COMMUNICATIONS BETWEEN PATIENTS
It is to be assumed, in the absence of statutes varying the rule, and of decisions to the contrary, in the several States of the United States, that in those States which derived their law from England the same rule of evidence obtains as that above enunciated. But many of the legislatures have by statute extended the privilege of secrecy to communications between patients and their physicians, as well as to other specified confidential communications which it does not fall within the scope of this work to discuss.
States and Territories in which there are No Statutes Restricting Evidence of Communications to Physicians.The following States and Territories have no statute restricting the nature of the disclosures which a physician may be compelled to make in a court of justice: Alabama, Connecticut, Delaware, Florida, Georgia, Illinois, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Mississippi, New Hampshire, New Jersey, New Mdxico, Rhode Island, South Carolina, Tennessee, Texas, Vermont, Virginia, and West Virginia.". the perversion or concealment of however (1903) passed any law in truth, too strong for human resist- compliance with this provision. ance. In every view that may be 3 While the statement concerning taken of the policy, justice or hu- West Virginia is true so far as it remanity of the rule as it exists, its spects any statute restricting generrelaxation seems highly expedient.” ally disclosures by physicians, there
a death by wrongful act, neglect or The unexpected effect of adopting default. In such case the physician the rule of exclusion advocated by sued is empowered to give evidence, the revisers in New York is illus- but it is limited to the medicine or trated by the cases cited under the treatment given to the deceased or head, “The result of the legislation,” the operation performed, but he caninfra, p. 169.
not give evidence of any conversaSee Stephens' Dig. Law Ev. with tion had with the deceased. Laws Beers' Conn. notes, p. 304 (1901). W. Va., 1897, c. 44. Code W. Va.,
. Const. of 'La., 1898, Art. 297, 1899, c. 130, s. 23, see infra, p. 113. provides : “The General Assembly 4 The following cases show or tend shall provide . . . protecting confi. to show that the English rule is in dential communications made to operation in Connecticut, Kentucky, medical men by their patients while Maine, Maryland Massachusetts, under professional treatment and New Jersey, South Carolina, Tenfor the purpose of such treatment." nessee, Texas, Vermont, and West
The general assembly has not, Virginia : Wilson v. Town of Gran
States and Territories in which there are Restrictive Statutes.-The following States and Territories have statutes restricting disclosures by physicians: Alaska, Arizona, Arkansas, California, Colorado, District of Columbia, Hawaii, Idaho, Indiana, Indian Territory, Iowa, Kansas, Michigan, Minnesota, Missouri, Montana, Nebraska, Nevada, New York, North Carolina, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, South Dakota, Utah, Washington, Wisconsin, and Wyoming.' by, 47 Conn., 59; Omberg v. U. S. 1900, s. 1,038, Act of Congress, June Mut. Acc. Assn., 101 Ky., 303 ; 6, 1900, U. S. Stat. at Large, Vol. Fayette v. Chesterville, 77 Me., 28; 31, p. 321 et seq. ; Rev. Stat. AriHall 2. Perry, 87 Me., 569 ; Weems zona, 1901, s. 2,535 ; Sandels & Hill's v. Weems, 19 Md., 334; Frush v. Dig. Stat. Ark., 1894, s. 2,919 as Green, 86 Md., 494 ; Morrissey v. amended Laws 1899, c. 31 ; Code Ingham, 111 Mass., 63; Barber v. Civ. Pro, Cal., 8. 1.881 as amended Merriam, 11 Allen, 322 ; Castner v. Mar. 8, 1901 ; Mills' Ann. Stats. Sliker, 4 Vr., 95; Sullivan v. Lati- Col., 1891, secs. 4,824, 4,825 ; Code mer, 38 S. C., 158; Horne v. McRae, District of Columbia approved Mar. 53 S. C., 51; Steagald r. State, 3, 1901, s. 1,073 ; Ballou's Civil Laws 3 S. W. Rep., 771; Jones v. White, Hawaiian Islands, 1897, s. 1,418, 11 Hun (Tenn.), 268 ; Gulf, Col. & and Resolution of U. S. Congress Santa Fé Ry. Co. v. Brown, 16 Tex. No. 55 of 1898, continuing muniCiv. App., 93; Wetherbee v. Weth- cipal legislation in Hawaii, 30 U. S. erbee, 38 Vt., 454 ; Jarrett v. Jarrett, Stats. at Large, p. 750; Code Civ. 11 W. Va., 584; State v. Hull, 45 Pro. Idaho, 1901, 8. 4,406; Burns' W.Va., 767. For the common-law Ind. Stat. 1901, s. 505; Horner's rule in the States where statutes are Ann. Stats. Ind., 1901, s. 497 ; Act now in force, see Peoplev. Lane, 101 of May 2d, 1890, U. S. Stats. at Cal., 513; People v. West, 106 Cal., Large, c. 182, making the laws of 89; Head Camp, Woodmen of the evidence of Arkansas applicable to World v. Loeher (Col.), 68 Pac. R., Indian Territory ; Carter's Laws of 136 ; Springer v. Byram, 137 Ind., Indian Territory, s. 1,977, see Act 15; Prader v. Accident Association, of Congress, Mar. 1, 1895, respect%5 Iowa, 149; Winters v. Winters, ing Crim. Pro. in Indian Territory; 102 Iowa, 53; State v. Grinnell Code Iowa, 1897, s. 4,608; Code (Iowa), 88 N. W. R., 342 ; Campau v. Civ. Pro. Kan., 6. 323; Gen. Stats. North, 39 Mich., 606; People v. De Kan., 1901, s. 4,771; Compiled France, 104 Mich., 563 : Territory Laws Mich., 1897, 8. 10,181 ; Gen. v. Corbett, 3 Mont., 50; Pierson v. Stats. Minn., 1894, s. 5, 662; R. S. People, 79 N. Y., 424; Edington v. Mo., 1899, s. 4,659; Code Civ. Pro. Etna L. I. Co., 77 N. Y., 564; Buf- Montana (1895), 6. 3.163; Code of falo Loan Tr. & S. D. Co. v. Knights Civ. Pro. Neb., secs. 333, 334, ComTeroplar, etc., 126 N. Y., 450 ; Fuller piled Stats. Nebraska, 1901, s. 5,907, r. Knights Pythias, 129 N. C., 318, 5,908; Cutting's Compiled Stats. 40 S. E. R., 65; Munz v. Salt Lake Nev., 1900, s. 3,479 ; Code Civ. Pro. City R. R. Co. (Utah), 70 Pac. R., N. Y., secs. 834, 836, as amended 852 ; Boyle v. N. W. M. R. Assn., by Laws 1893, c. 295, 1899, c. 53; %5 Wis., 312. In Alabama, though Laws of N. C., Act of 1885, C. a physician's testimony is not gen- 159, Jerome's N. C. Cr. C. and Dig. erally privileged, it may be inad- 1899, s. 497 ; Rev. Codes N. Dak., missible when it relates to trans- 1899, s. 5,703, 5,704 ; Bates' Ohio actions with the deceased patient. Stats., 1902, s. 5, 241 ; Stats. of Okla., See Davis v. Tarver, 65 Ala., 98. 1893, s. 4, 213; Bellinger & Cotton's
Carter's Ann. Codes, Alaska, Codes and Stats., Ore., 1902, secs.