the rule is different where the physician goes to the patient, with the knowledge of the latter, entirely for the purpose of ascertaining the nature and character of the injuries of the patient, and of reporting them to his employer.23 And though the physician was called for the express purpose of securing his testimony as a witness, he can only testify at the instance, or with the consent, of the patient.24 So, the relationship of physician and patient exists between a hospital physician and a patient in the hospital so as to render information acquired by the physician from the patient privileged and incompetent.25 And a person confined in jail who accepts the services of a physician is entitled to prevent a disclosure by the physician of professional information acquired by him to enable him to prescribe, notwithstanding the fact that he was selected by the public prosecutor, and sent by him.26 But information obtained by a jail physician on examination of a prisoner is not privileged, where he knew that the physician was there at the instance of the prosecuting attorney, and voluntarily submitted to the examination.27 And a physician sent by the public authorities to a jail to examine and report upon the Munz v. Salt Lake City R. Co. 25 Utah, 220, 70 Pac. 852. Freel v. Market Street Cable R. Co. 97 Cal. 40, 31 Pac. 730; Heath v. Broadway & S. A. R. Co. 25 Jones & S. 496, 8 N. Y. Supp. 863. And proof that a physician was at the scene of an accident when the am bulance arrived; and that he rendered first aid to the person injured; and that he was the attending physician at the hospital to which the injured person was taken, and rode with him in the ambulance about three blocks on the way; and that he was surgeon in the employ of the one who caused the injury, and had a talk with the injured person as part of his duty to his employer, does not show the relation of physician and patient so as to warrant the exclusion of the conversation had between them at the time of the injury. Griffiths v. Metropolitan Street R. Co. 171 N. Y. 106, 63 N. E. 808. "Doran v. Cedar Rapids & M. C. R. Co. 117 Iowa, 442, 90 N. W. 815. Barker v. Cunard S. 8. Co. 91 Hun, 495, 36 N. Y. Supp. 256; Duggan v. Phelps, 82 App. Div. 509, 81 N. Y. Supp. 916. And a physician making the rounds of a hospital with the regular attending physician, who admits that he partly attended a patient therein, and assisted in making an examination of her, will be deemed to be her physician so as to render inadmissible in evidence information acquired from such examination, though he claims to have made the rounds in the hospital merely out of curiosity, to acquire information in interesting cases. Grossman v. Supreme Lodge, K. & L. H. 3 Silv. Sup. Ct. 111, 6 N. Y. Supp. 821. And where a hospital is supported by contributions from the employees of two corporations, deducted from their monthly wages, and devoted to the maintenance of a hospital and the hiring of physicians employed about it, the relation of physician and patient exists between one of the hospital physicians and an employee of one of the companies, so as to render information obtained by such physician while attending the employee professionally a privileged communication, though the payment of the contributions was in part compulsory, and the companies were apparently responsible for the hos pital, and for all bills contracted in connection with it. Colorado Fuel & Iron Co. v. Cummings, 8 Colo. App. 541, 46 Pac. 875. People v. Murphy, 101 N. Y. 126, 54 Am. Rep. 661, 4 N. E. 326; People v. Schuyler, 43 Hun, 88; People v. Stout, 3 Park. Crim. Rep. 670. "People v. Glover, 71 Mich. 303, 35 N. W. 874. .28 sanity of a prisoner is not the prisoner's professional adviser so as to prevent his disclosure either as to conditions or statements made;2 and the same rule applies to a physician making an examination by agreement of the parties, for the purpose of furnishing desired information.29 573. Determination as to admissibility.-Where a physician is called as a witness, and facts appear which indicate that the information sought for was necessary for professional treatment, the trial court is the sole judge of its admissibility;30 the opinion of the physician himself on the subject of privilege is of no importance.31 But where the relation of physician and patient is established, if by any fair intendment communications made have relation to the physical or mental condition of the patient, the court is bound to hold them privileged.32 And a physician whose testimony is objected to as privileged should be allowed to explain as to the nature of his information, and as to whether or not it was necessary to enable him to act professionally.33 And hypothetical questions asked physicians with reference to their patients, for an opinion on a hypothetical state of facts, in which they are directed to lay aside all knowledge or information received by "People v. Sliney, 137 N. Y. 569, 33 N. E. 150; People v. Koerner, 154 N. Y. 355, 48 N. E. 730; People v. Kemmler, 119 N. Y. 580, 24 N. E. 9; Meyer v. Supreme Lodge, K. of P. (N. Y.) 64 L. R. A. 839, 70 N. E. 111; Nesbit v. People, 19 Colo. 441, 36 Pac. 221. And information concerning a patient, acquired by a physician who had been called upon to make an examination for the purpose of ascertaining whether her mental condition was such as to warrant trusting the control of her property to her, is not information necessary to prescribe, and is not, therefore, privileged. Re Bruendl, 102 Wis. 45, 78 N. W. 169. But though a physician is sent for the sole purpose of examining a person confined in jail, as to sanity, if he prescribes for him during the visit, the relation of physician and patient is thereby created, and disclosures made are privileged. Meyer v. Supreme Lodge, K. of P. (N. Y.) 64 L. R. A. 839, 70 N. E. 111. Clark v. State, 8 Kan. App. 782, 61 Pac. 814. And see State v. Kennedy, 177 Mo. 98, 75 S. W. 979, dissenting opinion by Gantt, P. J. 30 Griffiths v. Metropolitan Street R. Co. 171 N. Y. 106, 63 N. E. 808. And an improper ruling admitting the testimony of a physician as not priv ileged, in an action for a personal injury, cannot be held to be harmless because the jury held that the defendant was not responsible for the injury. Scher v. Metropolitan Street R. Co. 71 App. Div. 28, 75 N. Y. Supp. 625. 31 Griffiths v. Metropolitan Street R. Co. 171 N. Y. 106, 63 N. E. 808. And a physician is incompetent to testify as to whether or not the symptoms of a disease with which a patient suffered were such that he might have discovered the disease without the aid of any specific statement by the patient, or without the fact being confidentially disclosed to him by the patient, or a friend, or through a private examination. Grattan v. Metropolitan L. Ins. Co. 80 N. Y. 281, 36 Am. Rep. 617. Battis v. Chicago, R. I. & P. R. Co. (Iowa) 100 N. W. 543. But testimony of a physician will not be rejected as privileged from the mere fact that some other witness has incidentally testified to professional treatment by the physician of the person concerning whom the inquiry is made. Jennings v. Supreme Council, L. A. Benev. Asso. 81 App. Div. 76, 81 N. Y. Supp. 90. 13 Herrington v. Winn, 60 Hun, 235, 14 N. Y. Supp. 612; Re Halsey, 2 Connoly, 220, 9 N. Y. Supp. 441. them in their professional capacity, leaving them to decide as to what it is, are proper, and not in violation of privilege.34 574. Breach of privilege as a personal injury.—It has been held in actions involving other questions, that statutory provisions that physicians and surgeons shall not be compelled to disclose any information acquired by them in their confidential relationship to their patients, being for the benefit of the patient, should be construed to mean that they shall neither be compelled nor allowed to disclose such information;35 and that the publication by a physician of facts concerning an operation performed by him, without the approbation of the person operated upon, is a plain breach of professional duty.36 It is suggested by this view, though no cases have been found on the subject, that a physician or surgeon might be held liable in damages to a patient for a breach of privilege, as a personal injury; though in the absence of malice the action would probably be one in which the recovery would be confined to the actual pecuniary injury proved to have been suffered.37 575. Waiver; right of, and effect generally.-Statutory provisions that physicians and surgeons shall be incompetent to testify concerning any information which they may have acquired from any patient while attending him professionally do not create an absolute disquali "Meyer v. Standard Life & Acci. Ins. Co. 8 App. Div. 74, 40 N. Y. 419; People v. Schuyler, 43 Hun, 88; Fisher v. Fisher, 129 N. Y. 654, 29 N. E. 951. And a hypothetical question asked a jail physician with reference to the condition of a prisoner charged with homicide, which assumes no facts which occurred subsequent to the day of the homicide, is not incompetent as privileged, though the witness, after answer. ing, said that he did not think it possible for him to answer without being influenced by the opinion formed while acting as defendant's physician. People v. Schuyler, 43 Hun, 88, Affirmed in 106 N. Y. 298, 12 N. E. 783. Boyle v. Northwestern Mut. Relief Asso. 95 Wis. 312, 70 N. W. 351. 30 Sullings v. Shakespeare, 46 Mich. 408, 41 Am. Rep. 166, 9 N. W. 451. And counsel is justified in case of a regular systematic violation of duty owed by a physician to his patient, by the disclosure of confidential communications, in calling the attention of the jury to the violation of the law, and the abuse of the position which he occupied. Loudoun v. Eighth Ave. R. Co. 16 App. Div. 152, 44 N. Y. Supp. 742. 37 Where a physician took an unprofessional, young, unmarried man with him, and introduced him, and permitted him to remain in the house of a patient in a confinement case, permitting them to believe that he was a physician and acting as his assistant, both are guilty of deceit; and the wrong done entitles the injured party to recover damages sustained from shame and mortification. And a remark upon the part of a physician that he had brought a friend along to help carry his things is not sufficient to put the patient and her hus band on their guard, or to remove the presumption that the man thus brought was himself a practising physician. DeMay v. Roberts, 46 Mich. 160, 41 Am. Rep. 154, 9 N. W. 146. So, in Storrs v. Scougale, 48 Mich. 387, 12 N. W. 502, it was said with reference to testimony in violation of professional confidence, given by a physician, though apparently without objec tion, that every reputable physician must know of the existence of the statute, and that the physician had no business to give such testimony. 41 fication upon their part to testify, but create a privilege for the protection of the patient, which may be waived;38 permitting such waiver not being contrary to public policy.39 And the same principle applies with reference to waiver of privilege whether the physician called as a witness is a consulting physician or one directly employed;40 and the waiver may be either express or implied.* And where the statutory privilege has been once removed by the patient, and the information has lawfully been made public, constituting an admission, the right to further objection to its disclosure is lost.42 But the waiver of the privilege on a former trial does not preclude objection to the revealing of professional information on a later one, where the waiver was an incident in the mode of trial, and in no sense an admission of the party. 43 576. Who may waive.-The seal of secrecy and confidence placed by law upon information obtained by a physician from a patient in his professional capacity, being a personal privilege of the patient, can be waived by him, and by him alone. It is not the privilege of the physician, and is not to be waived by him.15 And though the patient is "Carrington v. St. Louis, 89 Mo. 208, 58 Am. Rep. 108, 1 S. W. 240; Blair v. Chicago & A. R. Co. 89 Mo. 383, 1 S. W. 350; Davenport v. Hannibal, 108 Mo. 471, 18 S. W. 1122; Thompson v. Ish, 99 Mo. 160, 17 Am. St. Rep. 552, 12 S. W. 510; Squires v. Chillicothe, 89 Mo. 226, 1 S. W. 23; Cramer v. Hurt, 154 Mo. 112, 77 Am. St. Rep. 752, 55 S. W. 258; Keller v. Home L. Ins. Co. 95 Mo. App. 627, 69 S. W. 612; Lissak v. Crocker Estate Co. 119 Cal. 442, 51 Pac. 688; Fraser v. Jennison, 42 Mich. 206, 3 N. W. 882; Grand Rapids I. R. Co. v. Martin, 41 Mich. 667, 3 N. W. 173; Edington v. Etna L. Ins. Co. 13 Hun, 543; Allen v. Public Administrator, 1 Bradf. 221. The general rule is that where the evidence of an attending physician is offered by the patient or his representative, it is competent and admissible; but where it is offered by the opposite party, the physician cannot testify against the objection of the patient or his representative. Groll v. Tower, 85 Mo. 249, 55 Am. Rep. 358; Squires v. Chillicothe, 89 Mo. 226, 1 S. W. 23. But a party to an action cannot be asked while testifying as a witness whether he is willing to waive his privilege as to confidential communications of a physician. McConnell v. Osage, 80 Iowa, 293, 8 L. R. A. 778, 45 N. W. 550. Dougherty v. Metropolitan L. Ins. Co. 87 Hun, 15, 33 N. Y. Supp. 873. 40 Lane v. Boicourt, 128 Ind. 420, 25 Am. St. Rep. 442, 27 N. E. 1111. "State v. Depoister, 21 Nev. 107, 25 Pac. 1000. McKinney v. Grand Street, P. P. & F. R. Co. 104 N. Y. 352, 10 N. E. 544; Morris v. New York, O. & W. R. Co. 148 N. Y. 88, 51 Am. St. Rep. 675, 42 N. E. 410; Schlotterer v. Brooklyn & N. Y. Ferry Co. 89 App. Div. 508, 85 N. Y. Supp. 847. affidavit to facts derived in a profesAnd where a physician has made an sional capacity, for use against his patient, and the affidavit is lost, he may be compelled by the adverse party, on occasion arising for the use of such affidavit by such party, to again make affidavit to such facts. Mason v. Libbey, 2 Abb. N. C. 137. Grattan v. Metropolitan L. Ins. Co. 92 N. Y. 274, 44 Am. Rep. 372; Briesenmeister v. Supreme Lodge, K. of P. 81 Mich. 525, 45 N. W. 977; Burgess v. Sims Drug Co. 114 Iowa, 275, 54 L. R. A. 364, 89 Am. St. Rep. 359, 86 N. W. 307. "Gurley v. Park, 135 Ind. 440, 35 N. E. 279; Storrs v. Scougale, 48 Mich. 387, 12 N. W. 502; Lincoln v. Detroit, 101 Mich. 245, 59 N. W. 617. And see Re Nelson, 132 Cal. 182, 64 Pac. 294. Storrs v. Scougale, 48 Mich. 387, 12 N. W. 502. But where the patient consents or waives the privilege, the physician can not a party in interest in the suit, the right to waive is nevertheless his, and not that of the party.* 46 As a general rule, however, the right of a patient to waive the statutory protection against disclosure by his physician of information acquired in attending him in his professional capacity may be exercised by those representing him after death, for the protection of interests claimed by them under him." And under this rule, previous to the admission of a will to probate, the heirs at law of a deceased person are his only representatives entitled to waive.48 And the words "personal representatives" in a statute prohibiting a waiver of the privilege of preventing a physician from disclosing professional communications except by personal representatives apply only to executors and administrators, and do not include the widow of the deceased.49 But under statutory provisions prohibiting evidence as to confidential information acquired by a physician, without the consent of his patient, the right to waive is confined to the patient alone; and when he is dead, the matter is forever closed, and the privilege cannot be waived by his legal representative.50 And this rule applies to probate proceedings, as well as to others, so as to prevent a waiver of privilege by an executor or administrator of a deceased patient." But an attorney may waive for his 51 not refuse to testify. Zimmer v. Third Territory v. Corbett, 3 Mont. 50. 279. 48 Staunton v. Parker, 19 Hun, 55. "Beil v. Supreme Lodge, K. of H. 80 App. Div. 609, 80 N. Y. Supp. 751. An administrator with the will annexed, of the estate of a deceased person, is the representative of the testator while seeking to maintain his will, and has the right as such representative to call the physician who attended the testator in his last illness, to prove the condition of his mind at the time the will was executed. Morris v. Morris, 119 Ind. 341, 21 N. E. 918. 50 Harrison v. Sutter Street R. Co. 116 Cal. 156, 47 Pac. 1019; Re Flint, 100 Cal. 391, 34 Pac. 863; Westover v. Etna L. Ins. Co. 99 N. Y. 56, 52 Am. Rep. 1, 1 N. E. 104; Loder v. Whelpley, 111 N. Y. 239, 18 N. E. 874; Butler v. Manhattan R. Co. 3 Misc. 453, 23 N. Y. Supp. 163; Ferguson v. Massachusetts Mut. L. Ins. Co. 32 Hun, 306. A waiver in an insurance policy by an insured person of his privilege to suppress confidential information of a professional character is personal, and cannot operate beyond him, and does not warrant the admission of the evidence of the physician of an aunt of the insured, as to the cause of her death, and as to whether she suffered from a particular disease. Davis v. Supreme Lodge, K. of H. 35 App. Div. 354, 54 N. Y. Supp. 1023, Affirmed in 165 N. Y. 159, 58 N. È. 891. 51 Loder v. Whelpley, 111 N. Y. 239, 18 N. E. 874; Westover v. Ætna L. Ins. Co. 99 N. Y. 56, 52 Am. Rep. 1, 1 N. E. 104. But the New York statute to this effect has been amended so as to provide that a physician or surgeon may disclose any information as to the mental or physical condition of a patient who is deceased, except confidential com munications, and such facts as would tend to disgrace his memory, where the privilege has been expressly waived by personal representatives of the deceased; or, if the validity of the last will and testament of such deceased patient is in question, by the executor or executors named in his will, or the surviving husband, widow, or any heir at law, or any of the next of kin of such deceased patient, or any other party in inter |