tom of one to give attention to patients in the absence of the other, one of them cannot be permitted to testify as to information secured from a patient of the other in consultation in the office of the firm.62

569. To what proceedings the prohibition applies.-The primary purpose of statutory provisions prohibiting the disclosure by a physician or surgeon of information acquired in attending a patient in his professional capacity, and which was necessary to enable him to act, has been held to be to declare the rule governing the examination of physicians or surgeons as witnesses in judicial proceedings only.63 But the inspection of the books of a physician has been denied, where they contained, as a part of his record, information derived from his patient of a privileged character.64 And it has been held that a physician cannot be compelled as a judgment debtor to deliver over his books in supplementary proceedings, when they contained confidential information.65 And statutory provisions of this class apply to aetions by a physician or surgeon for services rendered, as well as to other actions.66 And evidence in a divorce case, obtained by compulsory physical examination of a party by a physician, will be suppressed and disregarded.67 Nor will a motion for a continuance on the ground of an absent witness be entertained, where the evidence of

Etna L. Ins. Co. v. Deming, 123 Ind. 384, 24 N. E. 86, 375.

And a physician suing for professional services rendered a deceased patient cannot establish his claim by calling another physician who attended the patient as medical adviser, to divulge information respecting the services rendered by the plaintiff to the patient, acquired while the plaintiff and the witness were prescribing professionally for her, where the testimony would disclose the ailment with which the patient suffered, and the nature of the treatment. McGillicuddy v. Farmers' Loan & T. Co. 26 Misc. 55, 55 N. Y. Supp. 242.

63 Buffalo Loan, Trust & 8. D. Co. v. Knights Templar & Masonic Mut. Aid Asso. 126 N. Y. 450, 22 Am. St. Rep. 839, 27 N. E. 942.

Within the rule as thus limited, a physician's certificate in proofs of death under an insurance policy, operating as an admission that the patient died from a stated cause, is not incompetent. Ibid.

Mott v. Consumers' Ice Co. 2 Abb. N. C. 143; Lowenthal v. Leonard, 20 App. Div. 330, 46 N. Y. Supp. 818.

65 Kelly v. Lery, 29 N. Y. S. R. 659, 8 N. Y. Supp. 849.

Van Allen v. Gordon, 83 Hun, 379, 31 N. Y. Supp. 907; McGillicuddy v. Farmers' Loan & T. Co. 26 Misc. 55, 55 N. Y. Supp. 242.

"Page v. Page, 51 Mich. 88, 16 N. W. 245.

And a disclosure by a physician be fore a master in a divorce case, of information which he acquired in attending a patient in a professional character, after objection on his part and being compelled by the master to answer, being in direct violation of the statutory provision as to privilege, should be laid entirely out of consideration in deciding the case. Johnson v. Johnson, 4 Paige, 460; Johnson v. Johnson, 14 Wend. 637. The latter case Was reversed by the former on different grounds.

But refusal of the court on application for an allowance for support in a wife's action for divorce, to strike out affidavits of a person who acted as physician for both, is not error, where some of the matters contained in them were not confidential, and the court refused to consider the confidential matter. Schlosser v. Schlosser, 29 Ind. 488.

the absent witness would consist of information which came to a physician in his professional capacity.68 And a deposition by a physician containing information acquired by him in the discharge of his professional duties furnishes no ground for a new trial.69

It has been held, however, that the physician of a decedent may properly testify in a testamentary case when called upon by the decedent's executor;70 and that the attending physician of a deceased person may be called as a witness by either party claiming under the deceased, in a dispute between a devisee or legal representative and the heirs at law of the deceased.71 But the rule stated generally in cases from the same and other states is that statutory prohibitions against disclosure of information acquired by physicians in a professional capacity apply to testamentary cases, as well as to any other.72 And it has been held that the rule against divulging confidential information does not apply to, and exclude the testimony of, an attending physician in an inquisition of lunacy;73 though the contrary is also asserted.74 And while such provisions are generally applicable

Carthage Turnp. Co. v. Andrews, 102 Ind. 138, 52 Am. Rep. 653, 1 N. E. 364; Post v. State, 14 Ind. App. 452, 42 N. E. 1120.

Excelsior Mut. Aid Asso. v. Riddle, 91 Ind. 84; Harris v. Rupel, 14 Ind. 209.

And a commission to take the testimony of a physician will not be ordered, where the physician would be in competent to testify on the ground of privilege, on the theory that a condition might exist which would render his testimony competent. Enright v. Brooklyn Heights R. Co. 26 App. Div. 538, 50 N. Y. Supp. 609.

But a deposition containing such disclosures, taken previous to the enactment of a law forbidding the disclosure by a physician of confidential professional information, may be used subsequent to the physician's death, notwithstanding the enactment in the meantime of a statute prohibiting such disclosure. Wells v. New England Mut. L. Ins. Co. 187 Pa. 166, 40 Atl. 802. 70Whelpley v. Loder, 1 Dem. 368. "Winters v. Winters, 102 Iowa, 53, 63 Am. St. Rep. 428, 71 N. W. 184.

"Renihan v. Dennin, 103 N. Y. 573, 57 Am. Rep. 770, 9 N. E. 320; Mason v. Williams, 53 Hun, 398, 6 N. Y. Supp. 479; Re Connor, 27 N. Y. S. R. 905, 7 N. Y. Supp. 855; Van Orman v. Van Orman, 34 N. Y. S. R. 824, 11 N. Y. Supp. 931; Allen v. Public Adminis

trator, 1 Bradf. 221; Heuston v. Simpson, 115 Ind. 62, 7 Am. St. Rep. 409, 17 N. E. 261.

And where privileged communications to a physician are admitted in a will contest over objection, and on motion to strike them out the ruling is reserved until near the close of the case, when the motion is granted so far as the testimony was based upon knowledge derived or acquired by the physician while attending the testatrix professionally, without specifying definitely what evidence was stricken out, it is ground for reversal on appeal. Hannah, 11 N. Y. S. R. 807. "Re Benson, 16 N. Y. Supp. 111. "Re Baird, 11 N. Y. S. R. 263; Re Hoyt, 20 Abb. N. C. 162.

Re

And in Brigham v. Gott, 20 N. Y. S. R. 420, 3 N. Y. Supp. 518, it was held that the testimony of an attending physician as to the mental condition of a patient would ordinarily have great weight; and its improper admission could not be disregarded on appeal as doing no harm.

And it is to be observed that the rule of Re Benson, 16 N. Y. Supp. 111, it not positively stated, and that the court based its decision on absence of objection to the testimony of the physicians in case the prohibition should be held to apply.

in criminal cases for the protection of the patient,75 the disclosure of information obtained by a physician in his professional capacity cannot be thereby prevented for the sole purpose of shielding a person charged with crime.76 Nor can the rule be invoked where the evidence sought to be educed tends to disprove murder;77 or when the communication is for an unlawful purpose, having for its object the commission of a crime.78

570. Right to object to disclosure. The privilege conferred by statutory prohibitions against the disclosure of professional communications by physicians is that of the patient, and not of the physician; and he can neither be compelled nor allowed, without the consent of the patient or his proper representative, to make the disclosure.79 The physician himself cannot refuse to testify when the patient consents. 80 The right to object to the disclosure of confidential information by a physician, however, is not confined to the patient, but exists also in the parties to any actions in which such information is sought to be put in evidence.81 And where the lips of a physician

"See People v. Murphy, 101 N. Y. 126, 54 Am. Rep. 661, 4 N. E. 326; People v. Brower, 53 Hun, 217, 6 N. Y. Supp. 730.

And where a third person under great alarm and anxiety employed a physician to try to save a woman's life, and made statements to the physician with reference to what had taken place, knowing it, and suspecting it was the cause of her sudden prostration, and feeling that the physician ought to know it and to govern his treatment accordingly, the information being such that the physician should know it, and having been given for the sole purpose of enabling him to act properly, the information is protected by statutory provision forbidding a physician to betray confidential information. People v. Brower, 53 Hun, 217, 6 N. Y. Supp. 730.

76 People v. Harris, 136 N. Y. 423, 33 N. E. 65; Pierson v. People, 79 N. Y. 424, 35 Am. Rep. 524, Affirming 18 Hun, 239; People v. Lane, 101 Cal. 513, 36 Pac. 16; People v. West, 106 Cal. 89, 39 Pac. 207; Hauk v. State, 148 Ind. 238, 46 N. E. 127, 47 N. E. 465; State v. Height, 117 Iowa, 650, 59 L. R. A. 437, 94 Am. St. Rep. 323, 91 N. W. 935; State v. Grimmell, 116 Iowa, 596, 88 N. W. 342.

W. 263; State v. Smith, 99 Iowa, 26, 61 Am. St. Rep. 219, 68 N. W. 428; Hauk v. State, 148 Ind. 238, 46 N. E. 127, 47 N. E. 465; Hewitt v. Prime, 21 Wend. 79.

But the testimony of a physician in regard to advice asked for by a patient with reference to producing a miscarriage is not withdrawn from the prohibition against disclosing professional communications, upon the ground that the privilege does not extend to protect parties seeking information or advice as to prospective infractions of the law; since such act might be necessary to save life, and would, therefore, be a lawful one. Guptill v. Verback, 58 Iowa, 98, 12 N. W. 125; Post v. State, 14 Ind. App. 452, 42 N. E. 1120.

And the rule excluding privileged communications between physician and patient does not prevent a physician from testifying to his opinion that the death of the patient was caused by wounds inflicted in an attempt to produce a miscarriage. State v. Grimmell, 116 Iowa, 596, 88 N. W. 342.

"Boyle v. Northwestern Mut. Relief Asso. 95 Wis. 312, 70 N. W. 351; Re Nelson, 132 Cal. 182, 64 Pac. 294; Cahen V. Continental L. Ins. Co. 9 Jones & S. 296.

80 Zimmer v. Third Ave. R. Co. 36

"People v. Benham, 30 Misc. 466, 63 App. Div. 265, 55 N. Y. Supp. 308. N. Y. Supp. 923.

si See Hunn v. Hunn, 1 Thomp. & C.

"State v. Kidd, 89 Iowa, 56, 56 N. 501.

were sealed by statutory prohibition during the lifetime of his patient, they must remain closed where he loses his patient by death.82 And the right may be exercised by the beneficiary under an insurance policy upon the life of the deceased patient.83 And the assignee of a beneficiary of a certificate of insurance is also entitled to raise the question of privilege concerning the testimony of the physician of the insured. The right to object is strictly personal, however, to the extent of rendering it unavailable to a third party not standing in the same position as the original party.85 An intention to object to privileged testimony is sufficiently manifested by an objection to a continuance on the ground of the absence of the physician as a witness; and in such case a continuance, since it would be fruitless, will not be granted.88 And counsel in argument should not be permitted to comment on the refusal of a patient to consent to the revealing of professional information.87 But, in the absence of express statutory provision, a jury is not prohibited from drawing inferences from the refusal of the patient to permit his physician to testify; though it is not justified in drawing any inference not warranted by the evidence.88 571. To what information prohibition applies.-Statutory provisions rendering physicians or surgeons incompetent to testify concerning information acquired from a patient while attending him in a professional character, and which was necessary to enable them to prescribe, forbid the disclosure, not only of information acquired by oral communications, but also of all information acquired through observation or examination of the patient after submission to their care,89 or from

"Westover v. Etna L. Ins. Co. 99 N. Y. 56, 52 Am. Rep. 1, 1 N. E. 104; Grattan v. Metropolitan L. Ins. Co. 80 N. Y. 281, 36 Am. Rep. 617; Etna L. Ins. Co. v. Deming, 123 Ind. 384, 24 N. E. 86, 375; Penn Mut. L. Ins. Co. v. Wiler, 100 Ind. 92, 50 Am. Rep. 769; Shuman v. Supreme Lodge, K. of H. 110 Iowa, 480, 81 N. W. 717.

Grattan v. National L. Ins. Co. 15 Hun, 74; Dilleber v. Home L. Ins. Co. 69 N. Y. 256, 25 Am. Rep. 182; Cahen v. Continental L. Ins. Co. 9 Jones & S. 296; Penn Mut. L. Ins. Co. v. Wiler, 100 Ind. 92, 50 Am. Rep. 769.

died. 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.

Briesenmeister v. Supreme Lodge, K. of P. 81 Mich. 525, 45 N. W. 977; Edington v. Mutual L. Ins. Co. 67 N. Y. 185.

85 Edington v. Mutual L. Ins. Co. 67 N. Y. 185.

Post v. State, 14 Ind. App. 452, 42 N. E. 1120.

"Kelley v. Highfield, 15 Or. 277, 14 Pac. 744. Contra, Warsaw v. Fisher, 24 Ind. App. 46, 55 N. E. 42.

Deutschmann v. Third Ave. R. Co. 87 App. Div. 505, 84 N. Y. Supp. 887; Cooley v. Foltz, 85 Mich. 47, 48 N. W. 176.

And a certificate of a physician in attendance during the last illness of a deceased aunt of an insured person, the physician having no knowledge except such as he acquired in his profesColorado Fuel & Iron Co. v. Cumsional capacity, as well as his testimony mings, 8 Colo. App. 541, 46 Pac. 875; as to the cause of her death, is privi- Gurley v. Park, 135 Ind. 440, 35 N. E. leged, and cannot be used in an action 279; Heuston v. Simpson, 115 Ind. 62, upon the insurance policy to prove the 7 Am. St. Rep. 409, 17 N. E. 261; particular disease of which the aunt Springer v. Byram, 137 Ind. 15, 23 L.

statements of others surrounding the patient, including all knowledge disclosed to the physician or surgeon for the purpose of enabling him to act, 91 And a statutory provision against the disclosure of information obtained by a physician in his professional capacity is not confined to information of a confidential nature.92 Facts learned by a physician while in the discharge of his duties as such, which he would not otherwise have learned, are privileged.93 And a physician prohibited by law from disclosing information acquired profession

And what a physician observed as to The purpose of the statutory exclu- who accompanied his patient, and what sion of evidence as to information ob- the patient and the person accompanytained by a physician in his profes- ing her said in reference to the subsional capacity is to invite confidence ject-matter of the examination for and prevent a breach thereof; and it which she called, are privileged, as well is aimed at confidential communications as communications made to him. Post of a patient to his physician, and such v. State, 14 Ind. App. 452, 42 N. E. information as a physician may acquire 1120. of the secret ailments by an examination of the person of the patient. Edington v. Etna L. Ins. Co. 77 N. Y. 564.