imperatively demand it, and never when the party is willing to be examined by competent and disinterested physicians, without such order.32 The question of the right to such examination depends upon the necessity therefor, in order to present all the facts of the case ;33 though neither nervous temperament nor delicacy nor refinement of feeling is a ground for refusing an examination.34 The exam

ination, if one is permitted, will be so controlled by the court as to give both parties opportunity to have qualified witnesses present;35 and it will be required to be so conducted as not to subject the injured person to any unnecessary annoyance or exposure.36 And an order for such an examination may be enforced by refusal to try the cause, or to permit the giving of evidence to establish the opposing claim, until compliance.87 And in any event unreasonable refusal to show injuries or submit to examination is competent and potent evidence against the party refusing.38

IV. PRIVILEGE OF PHYSICIANS AND SURGEONS.

567. Origin and nature of.-At common law the information derived by physicians in their professional relation from patients was not privileged from disclosure;39 and this has appeared to continue to

named by her. White v. Milwaukee City R. Co. 61 Wis. 536, 50 Am. Rep. 154, 21 N. W. 524.

35 McGovern v. Hope, 63 N. J. L. 76, 42 Atl. 830.

And a plaintiff who submits to an examination by a physician cannot be deprived of the testimony of the physician upon the ground that it was made at a time when the defendant was not present. Louisville, N. 4. & C. R. Co. v. Falvey, 104 Ind. 409, 3 N. E. 389, 4

N. E. 908.

But where medical experts are ordered to examine a plaintiff in an action for a personal injury, and they are called and questioned by the defendant as to the result of their examination, the plaintiff has the right to ask on cross-examination how the examination

was

conducted, and what questions were propounded to the plaintiff. Ibid. And where an expert witness who is necessarily called by the plaintiff in an action for a personal injury, as being one who had been selected to assist at her examination, testifies unfavorably to her, it is within the discretion of the court to permit the party calling him to put questions to him in the nature of cross-examination. Quaife v. Chicago & N. W. R. Co. 48 Wis. 513, 33 Am. Rep. 821, 4 N. W. 658.

McGovern v. Hope, 63 N. J. L. 76, 42 Atl. 830.

"Hess v. Lake Shore & M. S. R. Co. 7 Pa. Co. Ct. 565; Miami & M. Turnp. Co. v. Baily, 37 Ohio St. 104.

Union P. R. Co. v. Botsford, 141 U.

S. 250, 35 L. ed. 734, 11 Sup. Ct. Rep. 1000; Kinney v. Springfield, 35 Mo. App. 97. Contra, Louisville, N. A. & C. R. Co. v. Falvey, 104 Ind. 409, 3 N. E. 389, 4 N. E. 908.

The jury may give such weight to a refusal on the part of the plaintiff to submit to a medical examination as they think it ought to have; but a refusal to charge that they have the right to infer from that fact that the examination would not disclose any fact favorable to the plaintiff is not error; and in such case the question as to whether he could have been compelled to submit to such examination is of no consequence. Elfers v. Woolley, 116 N. Y. 294, 22 N. E. 548.

People v. Stout, 3 Park. Crim. Rep. 610; Allen v. Public Administrator, 1 Bradf. 221; Edington v. Etna L. Ins. Co. 77 N. Y. 564; Springer v. Byram, 137 Ind. 15, 23 L. R. A. 244, 45 Am. St. Rep. 159, 36 N. E. 361; Winters v. Winters, 102 Iowa, 53, 63 Am. St. Rep. 428, 71 N. W. 184; Campau v. North, 39 Mich. 606, 33 Am. Rep. 433; Territory v. Corbett, 3 Mont. 50; Steagald v. State, 22 Tex. App. 464, 3 S. W. 771; Boyle v. Northwestern Mut. Relief Asso. 95 Wis. 312, 70 N. W. 351; Rez v. Gidbons, 1 Car. & P. 97; Broad v. Pitt, 3 Car. & P. 518; Duchess of Kingston's Case, 20 How. State Tr. 643, 2 Smith, Lead. Cas. 713; Wilson v. Rastall, 4 T. R. 760, 2 Revised Rep. 515; Greenough v. Gaskell, 1 Myl. & K. 103. Coop. t. Brougham, 96; Browne v. Carter, 9 L C. Jur. 163.

42

44

be the rule in England,40 and in a number of the American states."1 In many of the states, however, the disclosure by physicians and surgeons of confidential information acquired by them from their patients for the purposes of their employment is prohibited by statute;12 the statutory provision being designed to create a privilege in the case of the medical profession analogous to, and commensurate with, that which has always existed in the case of the legal profession.43 Such provisions are intended for the protection of the patient, and are designed to enable him to make known his condition to his physician without danger of any disclosure which would annoy his feelings, damage or impair his standing while living, or disgrace his memory when dead;45 and, being remedial in their nature, they are to be liberally construed ;46 though, being in derogation of the rules of common law, they cannot be extended beyond their express terms. And though they are state enactments, they are obligatory upon Federal courts in common-law trials while sitting in the states enacting them;48 and they are not abrogated by a statutory provision enabling a party to an action to examine the adverse party

47

"See Rex v. Gibbons, 1 Car. & P. 97. "Steagald v. State, 22 Tex. App. 464, 3 S. W. 771.

"New York, C. & St. L. R. Co. v. Mushrush, 11 Ind. App. 192, 37 N. E. 954, 38 N. E. 871; Springer v. Byram, 137 Ind. 15, 23 L. R. A. 244, 45 Am. St. Rep. 159, 36 N. E. 361; Gurley v. Park, 135 Ind. 440, 35 N. E. 279; Williams v. Johnson, 112 Ind. 273, 13 N. E. 872; Winters v. Winters, 102 Iowa, 53, 63 Am. St. Rep. 428, 71 N. W. 184; Baxter v. Cedar Rapids, 103 Iowa, 599, 72 N. W. 790; Keast v. Santa Ysabel Gold Min. Co. 136 Cal. 256, 68 Pac. 771; Colorado Fuel & Iron Co. v. Cummings, 8 Colo. App. 541, 46 Pac. 875; Haworth v. Kansas City Southern R. Co. 94 Mo. App. 215, 68 S. W. 111; Robinson v. Supreme Commandery, U. O. G. C. 77 App. Div. 215, 79 N. Y. Supp. 13; Re Darragh, 52 Hun, 591, 5 N. Y. Supp. 58; Metropolitan L. Ins. Co. v. Howle, 68 Ohio St. 614, 68 N. E. 4; Kelley v. Highfield, 15 Or. 277, 14 Pac. 744; Boyle v. Northwestern Mut. Relief Asso. 95 Wis. 312, 70 N. W. 351; Shafer v. Eau Claire, 105 Wis. 239, 81 N. W. 409.

The application of a statutory provision protecting a patient against disclosure by his physician of confidential professional information is not affected by the fact that at the time of making

not

the disclosure the patient did
know of the existence of the statutory
protection. People v. Stout, 3 Park.
Crim. Rep. 670.

Ibid.; Pierson v. People, 79 N. Y. 424, 35 Am. Rep. 524.

"State v. Depoister, 21 Nev. 107, 25 Pac. 1000; People v. Stout, 3 Park. Crim. Rep. 670.

"State v. Depositer, 21 Nev. 107, 25 Pac. 1000; Springer v. Byram, 137 Ind. 15, 23 L. R. A. 244, 45 Am. St. Rep. 159, 36 N. E. 361; Cramer v. Hurt, 154 Mo. 112, 77 Am. St. Rep. 752, 55 S. W. 258.

People v. Stout, 3 Park. Crim. Rep. 670; Grattan v. Metropolitan L. Ins. Co. 80 N. Y. 281, 36 Am. Rep. 617.

But statutory provisions prohibiting the disclosure of confidential communications between physician and patient are construed with great strictness in favor of the person against whom the evidence is sought to be given. Post v. State, 14 Ind. App. 452, 42 N. E. 1120.

"Kendall v. Grey, 2 Hilt. 300.

48Connecticut Mut. L. Ins. Co. V. Union Trust Co. 112 U. S. 250 28 L. ed. 708, 5 Sup. Ct. Rep. 119; Mutual Ben. L. Ins Co. v. Robison, 22 L. R. A. 325, 7 C. C. A. 444, 19 U. S. App. 266, 58 Fed. 723.

as a witness.49 Nor does a statutory provision making all public records of any of the departments of a city presumptive evidence of their contents render competent a physician's certificate on file in such a department, as against a claim of privilege.50

Though the doctrine of privilege of physicians as adopted in America has never been applied in England, medical information with regard to a personal injury, obtained by the party causing it for the express purpose of determining whether to yield to a claim for damages, has there been held to be confidential, and protected from disclosure. 51

568. Who are physicians within the statutory prohibition.-Statutory provisions forbidding the disclosing of confidential communica tions made by a patient to his physician apply only to cases of communications to, and information acquired by, a person duly authorized to practise physic, while attending a patient in a professional capacity,52 and do not include communications made to others in attendance at the physician's office, in his absence,53 and do not exclude the testimony of others, who overheard professional communications,

"Edington v. Mutual L. Ins. Co. 5 Hun, 1; Edington v. Mutual L. Ins. Co. 67 N. Y. 185. The latter case reverses the former on a different ground.

50 Robinson v. Supreme Commandery, U. O. G. C. 77 App. Div. 215, 79 N. Y. Supp. 13, 38 Misc. 97, 77 N. Y. Supp. 111; Davis v. Supreme Lodge, K. of H. 165 N. Y. 159, 58 N. E. 891, Affirming 35 App. Div. 354, 54 N. Y. Supp. 1023. 51Cossey v. London, B. & S. Coast R. Co. L. R. 5 C. P. 146, 39 L. J. C. P. 174, 22 L. T. N. S. 19, 18 Week. Rep. 493; Friend v. London, C. & D. R. Co. 25 Week. Rep. 735, 45 L. J. Exch. N. S. 696, L. R. 2 Exch. Div. 437, 36 L. T. N. S. 729.

But an agreement between an insurance company and friends of an insured person that reports made by the friends as to the assured's health and habits should be regarded as strictly confidential, though perhaps binding as between the parties to the agreement, does not affect the rights of the persons claiming under the insurance policy; and such persons are entitled to an inspection of the reports. Mahony v. National Widows' Life Assur. Fund, L. R. 6 C. P. 252, 40 L. J. C. P. N. S. 203, 24 L. T. N. S. 548, 19 Week. Rep. 722.

And a confidential report to an insurance company by its medical officer

as to the state of health of a party whose life is proposed to be insured is not of such a confidential character as to entitle it to protection; and its production may be required when material. Lee v. Hammerton, 10 L. T. N. S. 730, 12 Week. Rep. 975.

52 Kendall v. Grey, 2 Hilt. 300; Weit v. Cowles, 45 Hun, 307.

But in the absence of objection upon that ground, it will be presumed that a physician had the license which the law requires to entitle him to practise, so as to bring him within the prohibition against the disclosure of confidential communications by a patient, though he did not produce his license, and was not examined as to being a person duly authorized to practise. Reo ord v. Saratoga Springs, 46 Hun, 448, 12 N. Y. S. R. 395.

And the failure of a duly licensed physician to register his license may subject him to penalties, and deprive him of a right to recover compensation for services; but it does not affect the privilege of his patient of excluding from disclosure information acquired by him in the line of his professional duty. McGillicuddy v. Farmers' Loan & T. Co. 26 Misc. 55, 55 N. Y. Si pp. 242.

Kendall v. Grey, 2 Hilt. 300.

as to what they heard.54 Nor can a druggist decline to testify as to what medicines or drugs he sells to a designated person, upon the ground that the knowledge is privileged. 55 And a dentist does not practise medicine or surgery within the meaning of such a statutory prohibition.56 And veterinary surgeons are not within provisions making information acquired by physicians and surgeons privileged and incompetent.57 Nor does a statute rendering a physician or surgeon, authorized to practise his profession under the laws of the state, incompetent to testify as to information acquired in attending a patient, apply to a physician residing in another state, not authorized to practise in the state.5

58

Statutory provisions protecting from disclosure information of physicians obtained in a professional capacity, however, embrace physicians attending or prescribing for a patient in any way, whether they are the usual medical attendants or not;59 and a patient can no more be compelled to testify to confidential communications made by him than can the physician.60 And the privilege against disclosure extends to information obtained by a consulting physician, as well as a physician directly employed by the patient. And where two physicians are partners occupying the same office, it being the cus

"Springer v. Byram, 137 Ind. 15, 23 L. R. A. 244, 45 Am. St. Rep. 159, 36 N. E. 361; Masons Union Life Ins. Asso. v. Brockman, 26 Ind. App. 182, 59 N. E. 401; Bowles v. Kansas City, 51 Mo. App. 416.

Brown v. Hannibal & St. J. R. Co. 66 Mo. 588; Deutschmann v. Third Ave. R. Co. 87 App. Div. 505, 84 N. Y. Supp. 887.

People v. De France, 104 Mich. 563, 28 L. R. A. 139, 62 N. W. 709.

Hendershot v. Western U. Teleg. Co. 106 Iowa, 529, 68 Am. St. Rep. 313, 76 N. W. 828.

38 Head Camp, P. J. W. of W. v. Locher, 17 Colo. App. 247, 68 Pac. 136. Edington v. Mutual L. Ins. Co. 5 Hun, 1; Re Johnson, 32 App. Div. 634, 52 N. Y. Supp. 1081; Post v. State, 14 Ind. App. 452, 42 N. E. 1120.

Aspy v. Botkins, 160 Ind. 170, 66 N. E. 462; Post v. State, 14 Ind. App. 452, 42 N. E. 1120.

"Raymond v. Burlington, C. R. & N. R. Co. 65 Iowa, 152, 21 N. W. 495; Prader v. National Masonic Acci. Asso. 95 Iowa, 149, 63 N. W. 601; Renihan v. Dennin, 103 N. Y. 573, 57 Am. Rep. 770, 9 N. E. 320; Morris v. New York, O. & VOL. III. MED. JUR.-39.

W. R. Co. 148 N. Y. 88, 51 Am. St. Rep. 675, 42 N. E. 410; Green v. Nebagamain, 113 Wis. 508, 89 N. W. 520.

And where a physician was employed to attend a patient who had suffered a personal injury, and afterwards the family physician came and took charge of the case, and a few hours later the physician first called again visited the patient, but administered no treatment, the exclusion of a statement then made by the patient to the physician as privileged is not error. Patterson v. Cole, 67 Kan. 441, 73 Pac. 54.

But a communication made by one physician to another for the purpose of securing the aid of the latter in the commission of an abortion is not privileged. State v. Smith, 99 Iowa, 26, 61 Am. St. Rep. 219, 68 N. W. 428.

And the relation of physician and patient does not exist between an injured person and a physician to whom the attending physician brought the injured person, and asked him to examine him and see what was the matter, so as to render incompetent a question as to what he found. Henry v. New York, L. E. & W. R. Co. 57 Hun, 76, 10 N. Y. Supp. 508.