negligence and other wrongs, and to take part in placing the resulting pecuniary responsibility. And questions of the great est scientific importance are brought before these plain men from time to time to be explained to them by specialists of the very first ability, under conditions requiring the subject to be made in some degree at least intelligible to men of common education, and under the sanction which their own responsibility in giving verdict involves. There can be no doubt that the demands of such a system have called forth a thoroughness of investigation in science, and an accuracy and a precision in formulating for the uses of general intelligence the results of such researches, which vastly promote the progress of the commonwealth of knowledge. In this relation the physician on the witness stand, in addition to rendering indispensable aid in the administration of justice, is eminent among all experts in the service that he indirectly renders to the cause of science and general intelligence.

II. THE PRIVILEGE OF THE PHYSICIAN.

The English courts very early found that it was necessary to the administration of justice to exclude from evidence communications passing between attorney and client in the confidence of their professional relation. The like privilege was extended to communications between husband and wife; and in modern times a somewhat similar privilege has been extended to the relation of physician and patient, and that of confessor and penitent.

The privilege arising from the relation of physician and patient was originally limited, and it has been still further qualified by a statute passed last year, which gives to the personal representatives of a deceased patient the right to waive the protection of

the statute to some extent, and thus enlarges the right of the law to call upon a physician as a witness to disclose what he learned from his patient. The statute is not confined to civil actions, but is applicable in criminal cases, and also in what are known as special proceedings, such as the probate of wills. As the statute now stands, it allows the privilege to be waived, but unless waived in a manner which I will hereafter state, it is imperative upon the physician and the court. The language of the principal clause is as follows:

"A person, duly authorized to practice physic or surgery, 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." Code Civ. Pro., 834.

It will be observed that the prohibition is against allowing a person duly authorized to practise physic or surgery to disclose such information.

The statute refers to one duly authorized to practise at the time when he acquired the information, rather than at the time when he was called as a witness. It does not in effect preclude a physician called as a witness from testifying as to the condition of a person when treated by him before he had been licensed to practise. Wiel vs. Cowles, 45 Hun., 307. But it is not necessary that he should have been in full practice at the time. It is enough that he was qualified to practise. Roberts vs. Johnson, 58 N. Y., 613; aff'g 37 Super. Ct. (J. & S.), 157.

There is some authority for holding that if objection be made to the usual oral testimony of the physician that he was duly authorized to practise, the production of the diploma or license may be called for. Record vs. Village of Saratoga Springs, 46

Hun., 448. But the patient ought not to be required to produce, or even account for, the license. It is enough to require him to give general evidence of the fact.

The disclosure which the statute forbids is disclosure by testimony; the statute does not touch the intercourse of the physician had out of court. This question was before the Court of Appeals last year in the case of the Buffalo Loan Co. vs. The Knights Templars Asso., 126 N. Y., 450. That was an action brought by the guardian of an infant beneficiary under a certificate of membership in a mutual-aid association; and the certificate was expressed to be void if death was caused by the use of intoxicants. The guardian in furnishing to the defendant the required proofs of loss, added what was not required, a certificate of the attending physician of the deceased, which showed death from delirium tremens. On the trial of the suit brought by the guardian to recover for the death, the defendants sought to put this certificate in evidence, and it was resisted. The court, while holding that the guardian could not admit away the infant's right by furnishing an unnecessary certificate, held that the statute which we have under consideration does not apply to such a case. Judge drews, in delivering the opinion of the court, says: "The disclosure by a physician of information acquired in his professional character in attending a patient, where not made in the course of his professional duty, is a plain violation of professional propriety. But the statute does not prescribe a rule of professional conduct for the government of physicians in their general intercourse with society. The common law did not protect a physician from disclosing as a witness information acquired professionally from patients. (1 Green. Ev., § 248.) The statute was

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intended to afford this protection, and to protect the patient also. If a physician, disregarding the plain obligations of his situation, should, in conversation, disclose the secrets of his patient, he would, so far as we know, violate no statute, however reprehensible his conduct would be. The statute should have a broad and liberal construction to carry out its policy. By reasonable construction it excludes a physician from giving testimony in a judicial proceeding in any form, whether by affidavit or oral examination, involving a disclosure of confidential information acquired in attending a patient, unless the seal of secrecy is removed by the patient himself. The verified certificate of the physician which accompanied the proofs of loss was not competent original evidence of the cause of the death of the insured, nor was it offered as testimony of the physician as to that fact. The fact that the insured died of delirium tremens was material to the defense. The admission of a party in interest is as a general rule competent evidence against him. The presentation of the physician's certificate that the deceased died from the cause stated, operated as an admission by the guardian that the fact was as stated. It derived its force from the fact that the claimant communicated to the defendant a statement of the cause of death, which, if true, vitiated the policy. The statement was embodied in a physician's certificate. If it had been contained in the guardian's own statement, or that of any non-professional person, it would equally have been an admission of the fact stated. The certificate was a part of the proofs furnished. Its admission in evidence violated no confidence. The confidence had already been violated by the conjoint action of the physician and the guardian. It was not offered as inde

pendent evidence of any fact in the case, but in connection with the circumstances of its transmission to the company as an admission that the fact alleged was true."

It is also settled the mere fact that the physician attended the patient in a professional capacity is not privileged, but only "information acquired" while so attending. Breisenmeister vs. Supreme Lodge (Mich.), 45 Northwest. Rep., 977; S. P., in case of an attorney, Mulford vs. Muller, 3 Abb. Ct. of App., Dec., 330.

Much controversy has arisen in regard as to what is to be deemed "information acquired" within the meaning of the statute. It is now settled that what the physician sees, as well as what he hears, is protected, or, as Judge Finch says: "The communication to the physician's sense of sight is within the statute, and as much so as if it had been oral and reached his ear. . Information derived from observation of the patient's appearance and symptoms must not be disclosed." Grattan vs. Metropolitan Life Ins. Co., 92 N. Y., 274; aff'g 28 Hun., 430. Accordingly the question "What opinion did you form, based on the general sight of the man before you made an examination, or before you had any conversation with him?"-is properly excluded.

"If the patient had been dumb," said Judge Earl in another suit against the said company, "it would have made no difference." Grattan vs. Metropolitan Life Ins. Co., 80 N. Y., 281. And so are all the cases now. In Heuston vs. Simpson, Ind. 1888, 17 Northeast. Rep., 261, the court says: "If the knowledge is acquired in the chamber of the patient, and in the discharge of his professional duties, the physician can make no disclosure. This is true whether the knowledge is communicated by words of the patient or is gained

by observation, or is the result of profes sional examination. The law forbids the physician from disclosing what he learns in the sick-room, no matter by what method he acquires his knowledge."

According to the principle of analogous decisions in the case of the privilege of attorney (Lewin vs. Redfield, 2 Week. Dig., 198, Martin vs. Platt, 51 Hun., 429), what the physician may communicate to outsiders by direction or request of the patient is not within the protection of the statute.

An interview with a third person who applies to consult the physician not on his own behalf, but not indicating that he represents any one else who needs or desires medical assistance, has been held not privileged. Babcock vs. People, 15 Hun., 347. But on the other hand, statements made by a third person who called on the physician to ask him to come and attend a woman who was dangerously ill, the statements being made to the physician in reply to his inquiries and to enable him to prescribe, were held privileged. People vs. Brower, 53 Hun., 217.

The physician who attends in consultation at the request of the regular attending physician and advises a prescription, is within the statute; and his testimony as to the condition of the patient is privileged. "It is true," said the court in such a case, "that the witness was not called by the patient, but he was called by the attending physician, and went in his professional capacity to see the patient, and that was enough to bring the case within the statute, for he obtained his information as attending physician." Renihan vs. Dennin, 103 N. Y., 573, 578.

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A jail physician having medical charge of all the prisoners, who only testifies that he saw to the defendant as he did to the others when he needed it, does not thereby

establish the relation of physician and patient within the statute. This is only a mere nominal relation arising out of the official duty of the physician. People vs. Schuyler, 106 N. Y., 298.

But on the other hand, if it appears that the person was treated professionally and accepted the physician's services in his professional character, the relation of physician and patient exists within the meaning of the statute, although the physician was selected and sent by the public prosecutor. People vs. Murphy, 101 N. Y., 126.

In Kemmler's case, however (119 N. Y., 580), physicians sent to the jail by the district-attorney to examine defendant's mental and physical condition, but who were not inquired of as to conversations and transactions in the jail, and did not prescribe or treat him, were held competent to testify to his mental condition.

Where, however, physicians, being sent to the jail by the coroner to examine the prisoner, told him of the object of their visit, he knowing that they were physicians, and he consented and submitted to the examination, answered all questions asked, and requested one of them to call again the next day, the information acquired by the physicians was held privileged. People vs. Stout, 3 Park. Crim., 670.

The question has arisen in one or two cases as to information acquired by the physician's partner or by an assistant accompanying the physician. In the case of an action on a life policy it was held that the examining physician's partner was not competent to testify as to what he learned of the patient when the latter was at the office of the firm for treatment by the other partner. Ætna Ins. Co. vs. Deming, Ind., 1890, 24 Northeast Rep., 86, 375; and in Grossman vs. Supreme Lodge of J. & L.,

6 N. Y. Supp., 821, it was held in a case in the Supreme Court in this State that the exclusion applied to the testimony of a physician who went out of curiosity, with the physician in attendance at a hospital and assisted in making examination of a patient who was an inmate and partly attended her in connection with the physician in attendance. And in a recent unreported case in this city it has been ruled that the physician employed in a hospital to notice and enter in its record the arrival and condition of patients coming in, cannot testify to the information so acquired.

The language of the statute adds a further qualification to that of attending in a professional capacity, in these words"and which was necessary to enable him to act in that capacity."

It is plain that the word "necessary" here is to be construed very liberally. It cannot be that the privilege shall depend on the absolute necessity of a particular statement to the treatment which the physician decides to give. The word 'necessary" has not a scientific or logical meaning. In the law it is a word of convenience. For instance under the power which the city have to establish the Central Park and whatever is necessary for it, they have power to establish a restaurant in the Park.

Without doubt the information must have some relation to the question of treating the patient. A physician called in merely to attest a testator's mental capacity to execute a will, is competent to testify to information then acquired, because he is not called to treat the patient. Hoyt vs. Hoyt, 112 N. Y., 493, 515. Matter of Freeman, 46 Hun., 458.

In cases where the information has had some relation to a question of treatment, and the controversy as to privilege has

depended upon the scope of the word "necessary," the views of the courts have been somewhat varied. In Penn. Co. vs. Marion, Ind., 1890, 23 Northeast. Rep., 973, it was held that a physician attending a person injured, since he has no business to interrogate the patient for any other purpose than to ascertain the nature and extent of the injury and in aid of treatment, the information gained by questions calculated to serve that purpose is privileged. And if the physician's proper question draws out the patient's admission that it was not the company's fault but that he tried to get off before the train stopped, the physician is not competent as a witness to prove that statement in favor of the defendant. The same view was also applied in Norton vs. Moberly, 18 Mo. App., 497. The contrary was held in a very similar case in this State in Brown vs. Rome, Watertown, etc., R. R. Co., 45 Hun., 439, where the evidence was excluded on the trial, and the decision was reversed, the Supreme Court saying: "It is entirely plain that the evidence was not information necessary to enable the witness to act or prescribe."

In Cooley vs. Foltz (Mich., 1891), 48 Northwest. Rep., 176, it was held that it is competent for the plaintiff's physician to testify that when called in professionally he was told by plaintiff that she had sued the defendant and would want him as a witness, since such testimony has no relation to the plaintiff's condition.

It seems clear that information is privileged which was properly called for in the course of ascertaining whether treatment is needed or not needed; and accordingly it was so held in Gratton vs. Metropolitan Life Ins. Co., 24 Hun., 43. Learned, J., well says: "The day has passed when it is thought that a physi

cian's advice was of no use unless he ordered a dose of medicine."

It was there also held that the fact that the patient's employer ordered and paid for the examination, did not impair privilege.

This brings us to the question how the objection to such testimony may be waived.

Until amended last year by a clause which I will afterwards state, the statute by its terms applied to every examination of such a physician "unless the provisions thereof are expressly waived by the . . . patient."

In this state of the law it was held that the patient, or his attorney, while the patient lived, could waive the privilege in court, and that the patient could waive it by previous conduct before going into court; but that after the patient's death no one could waive it.

Contests over this irrevocable character of the privilege led to the amendment of 1891 in these words: "But a physician or surgeon may upon a trial or examination disclose any information as to the mental or physical condition of a patient who is deceased, which he acquired in attending such patient professionally, except confidential communications and such facts as would tend to disgrace the memory of the patient, when the provisions of section eight hundred and thirtyfour have been expressly waived on such trial or examination by the personal representative of the deceased patient, or, if the validity of the last will and testament of such deceased patient is in question, by the executor or executors named in said will." (L. 1891, p. 736, c. 381.)

Several important questions will arise upon the construction of this amendment, which are of interest to physicians as well as to lawyers.