often such as to generate emotional rhetoric and to call into action interested groups perhaps motivated more by considerations of prestige and convenience than by concern for the public interest. Similar considerations apply, of course, to privileges designed to promote or protect a particular interest, as well as those deriving from particular relationships.

In view of these considerations the approach by the Advisory Committee to the question of what particular privileges ought to be recognized was generally conservative. Privileges finding recognition in existing law were carefully reexamined. In some instances they were discarded or restricted; in others retained or expanded.

Discussion of each privilege in detail would prolong this statement unduly. Therefore only those aspects of the proposed rules which have attracted substantial attention will be discussed. As to the others, the attention of the Subcommittee is respectfully directed to the Advisory Committee's Note that accompanies each rule.

PHYSICIAN-PATIENT PRIVILEGE (RULE 504)

Witnesses before the Subcommittee have urged a broad physician-patient privilege in lieu of the narrower psychotherapist-patient privilege incorporated in Proposed Rule 504. In the Advisory Committee's Note, the reasons for the decision against the broader rule are summarized in the first paragraph. This paragraph is a condensation of lengthy and serious deliberation by the Advisory Committee. The Reporter's memorandum with which the discussions commenced is set forth immediately following. The Advisory Committee also had before it the pertinent provisions of the California Evidence Code of 1965, which are here added to the memorandum for the information of the Subcommittee, and the Uniform Rules of Evidence (reproduced in the Hirsh statement mentioned below). After the appearance of the Preliminary Draft, the Advisory Committee received two statements of position from the American Medical Association, one prepared by Bernard D. Hirsh, General Counsel, and the other in the form of a letter addressed to Mr. J. E. Simpson as a member of the Advisory Committee (which he was not) by Richard P. Bergen of the A.M.A. legal staff, which was attached to a report submitted by the Federal Courts and Practice Committee of the Los Angeles County Bar Association. These two items are also included in the annexed materials for the information of the Subcommittee. Thereafter, on August 17, 1970, two representatives of the A.M.A., Dr. Herbert C. Modlin of the A.M.A. Council on Mental Health and a member of the A.M.A. executive staff, met with the full Advisory Committee for a half day at one of its regular sessions to discuss the physician-patient privilege. At the conclusion of the discussion, the A.M.A. representatives expressed themselves as satisfied with the proposed rule. Since that time, nothing further has been heard from the A.M.A. concerning the matter.

(20) Federal Rules Committee, Florida Bar. State law should govern privilege except when otherwise provided by Act of Congress or Rule of Civil or Criminal Procedure.

(21) Special Committee, California State Bar. Recognize state-created privileges at least in diversity cases, if not in all federal cases.

(22) Trial Practice Section, Arizona State Bar. Disagrees, especially as to diversity cases, but indefinite as to a substitute.

(23) American Patent Law Association. No disagreement.

(24) Special Committee, American College of Trial Lawyers. Only provision on privilege should be that state law determines whether confidential communications should be privileged.

(25) Special Committees on Federal Rules of Procedure and on Uniform Rules of Evidence for Federal Courts, American Bar Association. No disagreement. (26) Committee on Proposed Federal Rules of Evidence, Alabama Defense Lawyers Association. Unclear as to substitute, perhaps recognize only according to state law.

(27) A Committee of New York Trial Lawyers. Delete entire Article V, or add a provision that state-created privileges prevail in diversity cases.

(28) Committee, Virginia Trial Lawyers Association. No federal rule on privilege.

(29) Committee on Rules of Practice and Procedure, Washington State Bar Association. No disagreement.

Appendix B

SUMMARY OF FURTHER REACTIONS OF BAR GROUPS TO TREATMENT OF STATECREATED PRIVILEGES

REVISED DRAFT, MARCH 1971

(1) Committee on Trial Practice and Technique, Second Circuit. Makes clear that the disagreement previously expressed extends only to diversity cases on Erie grounds.

(2) A Committee of New York Lawyers. Reiterates earlier opposition to any rules of privilege, or, alternatively, urges recognition of state-created privileges in diversity cases.

(3) Committee of Bar Association of Metropolitan St. Louis. Repeats earlier position that privilege should be governed by local law; no reason not to continue to follow local law in diversity cases.

(4) Committee on Federal Courts of Association of Bar of City of New York. Again urges that state law alone govern as to privileges, especially in diversity

cases.

(5) Committee of American College of Trial Lawyers. Remains of the opinion that except as provided by Constitution or Act of Congress local law should govern privilege. (The earlier draft proposal of this group contained no reference to Constitution or Act of Congress.)

(6) Antitrust Section Committee, American Bar Association. No disagreement.

(7) Department of Justice. No disagreement.

Note

POLICY ASPECTS OF PHYSICIAN-PATIENT PRIVILEGE

In view of the problems and complications inherent in the drafting of a rule recognizing and delineating a privilege for confidential communications between physician and patient, the Reporter requests the Committee to make a preliminary decision whether the privilege should be recognized.

No privilege is recognized at common law; it exists purely by virtue of legislative enactments. The original statute was the New York act of 1828. (See Appendix to this note for its text.) About three-fourths of the states now have legislation in the area.

The original draft of the Model Code included no physician-patient privilege, but that decision was reversed on the floor by a vote of 55-48 (19 A.L.I. Proceedings 211) and Rules 220-223 were added. In 1950 the National Conference of Commissioners on Uniform State Laws voted against the privilege but reversed this action "by a close vote" in 1953. Comment, Uniform Rule 27. Hence the Uniform Rules include Rule 27, which follows the Model Code, but put it in the doubtful class by surrounding it with brackets.

The New York Commissioners on Revision of Statutes justified the original enactment in this language:

"In 4 Term Rep. 580, Buller J. (to whom no one will attribute a disposition to relax the rules of evidence,) said it was 'much to be lamented' that the information specified in this section was not privileged. Mr. Phillips expresses the same sentiments in his Treatise on Evidence, p. 104. The ground on which communications to counsel are privileged, is the supposed necessity of a full knowledge of the facts, to advise correctly, and to prepare for the proper defense or prosecution of a suit. But surely the necessity of consulting a medical adviser, when life itself may be in jeopardy, is still stronger. And unless such consultations are privileged, men will be incidentally punished by being obliged to suffer the consequences of injuries without relief from the medical art, and without conviction of any offense. Besides, in such cases, during the struggle between legal duty on the one hand, and professional honor on the other, the latter, aided by a strong sense of the injustice and inhumanity of the rule, will, in most cases, furnish a temptation to the perversion or concealment of truth, too strong for human resistance. In every view that can be taken of the policy, justice or humanity of the rule, as it exists, its relaxation seems highly expedient. It is believed that the proposition in the section is so guarded, that it cannot

be abused by applying it to cases not intended to be privileged." 3 N.Y. Rev. Stat. 1836, 737.

An extensive justification is found in the statement made to the American Law Institute at the annual meeting of 1942 on behalf of the American Medical Association. 19 A.L.I. Proceedings 183-187. It may be summarized as follows: An unlimited privilege was not contemplated, since the privilege sought would be inapplicable to actions based on personal injury or other condition which caused the person to consult the physician. The public interest requires full and complete disclosure by the patient to enable the physician to diagnose and treat to the best advantage. There is a lurking fear of disclosure in the mind of the patient. If it is good for the lawyer-client relationship, it is good for the physician-patient relationship. In states with an unlimited privilege, fraud may be fostered in litigation over insurance and personal injuries, but the privilege being proposed would not apply in those cases. The medical profession, out of its experience in dealing with the problem, believes that the privilege promotes the quality of medical care.

The case for the privilege is presented in perhaps its best aspect in Note, Legal Protection of the Confidential Nature of the Physician-Patient Relationship, 52 Colum. L. Rev. 383, 384 (1952):

"Although sometimes obscured by language cast in terms of the 'sacredness of the relationship,' there are very practical reasons for treating as confidential information acquired in the course of practice. The physician, traditionally and functionally, is the confidant of many intimate details of his patient's past. Because patients expect secrecy, the profession undoubtedly suffers a loss of socially-useful respect when confidences are disclosed. Perhaps more important it is generally felt among physicians that without some guarantee of secrecy the patient will be unable completely to trust his physician and, consequently, may bring harm to himself by being unable to reveal all the facts necessary to proper treatment."

The committee which prepared the Uniform Rules, however, was not convinced. "There is grave doubt whether it is in the public interest to extend the right of the patient to the closing of the doctor's lips as a witness in an action where the condition of the patient is a material and relevant matter. All privileges are blockades to the ascertainment of the truth and should be conservatively and reluctantly granted." Comment, Uniform Rule 27.

The legal commentators, almost to a man, have opposed the privilege. In general they have agreed that the real underlying reason is the comfort and convenience of the medical profession, combined with a specious "me-too" appeal to be treated like the lawyers. Occasionally the personal injury lawyers get the credit. 19 A.L.I. Proceedings 196 (1942). Wigmore asserts that "the real support for the privilege seems to be mainly the weight of professional medical opinion pressing upon the legislature." 8 WIGMORE $2380 a (McNaughton Rev. 1961). McCormick says the underlying policy of encouraging free disclosure by patients to physicians in order to achieve the best medical treatment is highly speculative. McCORMICK 216, 222. In Professor Chafee's estimation, "Legislatures and courts have been occupied for over a century in closing the physician's mouth in the very place where the truth is badly needed." Is Justice Served By Closing the Doctor's Mouth? 52 Yale. L. J. 607, 617 (1942). Perhaps the most convincing evidence against the actual existence of a sound basis for the privilege is found in the failure of the statutes to evolve a cohesive and consistent pattern. Several illustrative statutes are included in the appendix to this note. The Model Code commentary to Rule 221 states that the statutes are "of varying terms and inharmoniously interpreted." One writer summarized his reaction to the statutes and cases construing them in these words: "It is a safe conclusion to say that if every amendment of these statutes and every interpretation of the courts which have been adopted by the several states should be adopted by all the states having such statutes, none of the effect of the statutes in any of the states would be left and those states would be right back at common law. . . ." Curd, Privileged Communications Between the Doctor and His Patient-An Anomaly of the Law, 44 W. Va. L. Q. 165, 173 (1938). One emerges from perusal of the statutes and the literature with the feeling that much of what has been done represents an effort to express an honest sentiment which has not been subjected to critical scrutiny.

An examination of the situations which must for reasons of policy or fairness be excluded from its coverage raises further doubt as to the wisdom of adopting a physician-patient privilege. They leave little room indeed for the operation of the rule. These situations include the following, briefly summarized:

1. Communications not made for purpose of diagnosis and treatment.-The arguments advanced in support of the privilege do not apply here, as they depend upon full disclosure as an essential adjunct of proper diagnosis and treatment. The statutes generally recognize this aspect. Thus disclosures made in the course of an examination for the purpose of enabling the physician to testify at the trial are excluded from the privilege, as are examinations pursuant to applications for insurance. MCCORMICK 212; 8 WIGMORE 835 (McNaughton Rev. 1961). The same result follows with respect to an autopsy surgeon. WIGMORE, op. cit. at 841.

2. Commitment and restoration proceedings.-Since commitment proceedings are said to be for the benefit of the patient he should not be allowed to suppress the information. In restoration proceedings the patient puts his condition in issue. Comments, California Evidence Code §§ 1004, 1005. Perhaps a more realistic view is simply that the privilege is not very soundly founded and almost any need for judicial disclosure is sufficient to override it. The Comment to Model Code Rule 223 refers to "the necessity of fullest disclosure . . . in cases where control of the patient on account of mental incompetence is in issue." The exception is recognized in Uniform Rule 27 (3) (a).

3. Issues as to wills or otherwise between parties claiming by testate of intestate succession from the patient.-This exception is supported by analogy to the corresponding exception to the attorney-client privilege and is found in Uniform Rule 27 (3) (b) and (c).

4. Actions on insurance policies.-Wigmore takes the view that the act of taking out the insurance should itself operate as a waiver, since proof becomes a mere gamble otherwise. The cases, however, seem to hold the contrary. 8 WIGMORE 854 (McNaughton Rev. 1961). They generally involve either disputed claims of disability or defenses alleging fraudulent misrepresentations of health, and fairness in either instance requires disclosure. Id., 856.

5. Matters required by law to be reported.-Within this category are included compulsory reports of venereal disease cases. 8 WIGMORE 821. 839. 842 (McNaughton rev. 1961), gunshot or knife wounds, id. at 821, deaths, id. at 849-850, and battered babies, Ill. Rev. Stat. 1965, c. 23, §§ 2041-2046. See Uniform Rule 27 (5). According to Foster, Lawman, Medicine Men and Good Samaritans, 52 A.B.A.J. 223, 226 (1966), 14 states by 1964 had passed statutes to compel physician's to report cases of child abuse, the legislation being necessary in order to overcome professional reluctance based on fear of liability and desire not to become involved in legal proceedings.

6. Furtherance of crime or fraud.-This exception encompasses unlawful narcotics sales and abortions, as well as escaping detection or apprehension. MCCORMICK 213; Uniform Rule 27 (6). It rests on the same basis as the crime or fraud exception to the lawyer-client privilege.

7. Mental or physical condition put in issue by patient.-Unlike the privilege is to serve as a vehicle of fraud, it can scarcely be permitted to become the means of suppressing the most pertinent and perspicacious evidence upon a matter which the patient himself has opened up. To allow disclosure only on his own terms hardly seems tolerable. McCORMICK 218-220: 8 WIGMORE 856-865 (McNaughton rev. 1961). In eight states the privilege is inapplicable in personal injury litigation. O'Neill, Ohio's Physician-Patient Privilege in Personal Injury Cases-Time for Reform, 16 W. Res. L. Rev. 334 (1965). The writer, a personal injury lawyer, evaluates the privilege as one which, in personal injury actions, "causes concealment of evidence encourages dissembling, promotes litigation, obstructs settlement and contributes to court delay." Ibid.

8. Malpractice cases.-As with the attorney-client relationship, simple justice requires that the privilege not apply when breach of duty is charged. MCCORMICK 220; 8 WIGMORE 848-849 (McNaughton rev. 1961).

9. Some or all criminal cases.-Some states withdraw the operation of the privilege from all criminal cases. McCORMICK 220. Others withdraw the privilege only in certain types of criminal prosecutions, e.g., murder and abortion. Ibid.; Ill. Rev. Stat. 1965, c. 51, § 5.1.

91-262-73- -37

Appendix

II N.Y. Rev. Stats. 1829, Part III, c. 7, Tit 3. Art. 8, § 73, p. 406.

(This is the original statute, widely copied, often with modifications.) No person duly authorized to practice physic or surgery, shall be allowed to disclose any information which he may have acquired in attending any patient, in a professional character, and which information was necessary to enable him to prescribe for such patient as a physician, or to do any act for him, as a surgeon.

N.Y.C.P.L.R. § 4504. (This is the present New York provision.)

Physician, dentist and nurse. (a) Confidential information privileged. Unless the patient waives the privilege, a person authorized to practice medicine or dentistry, or a registered professional or licensed practical nurse, shall not be allowed to disclose any information which he acquired in attending a patient in a professional capacity, and which was necessary to enable him to act in that capacity.

(b) Identification by dentist; crime committed against patient under sixteen. A dentist shall be required to disclose information necessary for identification of a patient. A physician, dentist or nurse shall be required to disclose information indicating that a patient who is under the age of sixteen years has been the victim of a crime.

(c) Mental or physical condition of deceased patient. A physician or nurse shall be required to disclose any information as to the mental or physical condition of a deceased patient privileged under subdivision (a), except information which would tend to disgrace the memory of the decedent, either in the absence of an objection by a party to the litigation or when the privilege has been waived:

1. By the personal representative, or the surviving spouse, or the next kin of the decedent; or

2. In any litigation where the interests of the personal representative are deemed by the trial judge to be adverse to those of the estate of the decedent, by any party in interest; or

3. If the validity of the will of the decedent is in question, by the executor named in the will, or the surviving spouse or any heir-at-law or any of the next of kin or any other party in interest.

Cal. Code Civ. P. § 1881 (4). (This is the provision of 1872 as in effect prior to the adoption of the 1965 Evidence Code. It has been copied in a number of states.)

A licensed physician or surgeon cannot, without the consent of his patient, be examined in a civil action, as to any information acquired in attending the patient, which was necessary to enable him to prescribe or act for the patient; provided, however, that either before, or after probate, upon the contest of any will executed, or claimed to have been executed, by such patient, or after the death of such patient, in any action involving the validity of any instrument executed, or claimed to have been executed, by him, conveying or transferring any real or personal property, such physician or surgeon may testify to the mental condition of said patient and in so testifying may disclose information acquired by him concerning said deceased which was necessary to enable him to prescribe or act for such deceased: provided further, that after the death of the patient, the executor of his will or the administrator of his estate, or the surviving spouse of the deceased, or if there be no surviving spouse, the children of the deceased personally, or, if minors, by their guardian, may give such consent, in any action or proceeding brought to recover damages on account of the death of the patient; provided further, that where any person brings an action to recover damages for personal injuries, such action shall be deemed to constitute a consent by the person bringing such action that any physician who has prescribed for or treated such person and whose testimony is material in said action shall testify; and provided further, that the bringing of an action, to recover for the death of a patient, by the executor of his will, or by the administrator of his estate, or by the surviving spouse of the deceased, or if there be no surviving spouse, by the children personally, or, if minors, by their guardian, shall constitute a consent by such executor, administrator, surviving spouse, or children or guardian, to the testimony of any physician who attended said deceased.