People v. Murphy, 101 N. Y., 126.

the injured parts, and so on." We understand what occurred differently. When the witness was first asked his opinion whether the birth occurred from natural or artificial causes, he inquired whether in giving his answer he would be allowed to consider the clinical history of the case as he got it from the girl's statement, to which the prosecutor replied: “Certainly; I ask the question on the whole history of the case as you learned it from her, as well as from the examination." To this the prisoner objected. The court did not at once pass on the objection, but suggested that the physician answer first from his observation alone. He did so answer and said: "From my physical examination of the woman and the foetus it would lead me to believe that an abortion had been induced," and then added, as a reason, that natural miscarriages were not likely to occur at that stage of pregnancy with the frequency of earlier stages. How weak this evidence was upon the vital point, whether the miscarriage arose from natural or artificial causes, was made apparent on the cross-examination, where, in answer to the distinct question, "whether or not from such physical examination as you describe you made there, is it possible, as a matter of medical knowledge, science and experience, to say that a miscarriage had been produced," the witness felt constrained to answer "No, sir." The prosecutor, apparently feeling the need of adding some decisive force to the opinion, followed his first inquiry with this question: "On the personal examination that you made of the woman and the foetus, and the history of the case as you got it from her, what do you say now as to whether or not there had been an abortion brought about by artificial means?" To this question the prisoner's counsel objected as calling for hearsay and a privileged communication, and on the further ground that it involved "the history of the case" which had not been disclosed. The district attorney offered to disclose it, and put the question, what the girl said, which was objected to and excluded. Thereupon the court overruled the objection, and the witness answered, "I say an abortion had been produced." It is not possible on this state of facts to say justly that by the history of the case and the girl's statement was meant only her complaints of present pain and suffering.

People v. Murphy, 101 N. Y., 126.

Nothing of the kind was suggested, or pretended, or could have been understood by court or witness or jury. Indeed, on crossexamination, the witness describes what he meant by the "clinical history of the case," saying, "I wrote down part of her statement and testified to it in the police court; and that included how she came there and what happened since she came to that house." So that the opinion of the expert that a crime had been committed, founded upon the narrative of the woman of previous facts, which narrative was, itself, inadmissible and remained undisclosed, was given to the jury. Necessarily it carried with it damaging inferences of what that narrative in fact. was, and drove the accused to the alternative of omitting all cross-examination as to the concealed basis of the opinion, or admitting inadmissible evidence.

We think there was error for which the judgment should be reversed, and a new trial granted, and the proceedings remitted to the Court of Sessions of Monroe County, for that purpose. All the Judges concurred. Judgment reversed.

Note on Privilege of Professional Information of Physician.

NOTE ON PRIVILEGED INFORMATION ACQUIRED BY PHYSICIAN RESPECTING PATIENT.

For recent cases on the Relation; the Information; Who may claim the privilege; the Manner of Objecting; and Waiver of the privilege, see the following:

The Relation:

Indiana: Aetna Ins. Co. v. Deming, 1890, 24 Northeast. Rep., 86; id., 375 (a physician's partner is not competent to testify as to what he learns of a patient's condition while the latter is in the firm's office for treatment by the witness' partner). New York: People v. Schuyler, 106 N. Y., 298; s. c. 12 Northeast. Rep., 783 (a jail physician, who has merely examined and observed a prisoner, but who has never prescribed for him, may testify from such examinations and observation as to his sanity); Matter of Freeman, 46 Hun, 458 (physician called by attorney of testatrix to examine her mental condition, but without her knowledge, and who at testatrix's request subscribes her will, is a competent witness upon the probate of the will); Renihan v. Dennin, 103 N. Y., 573; s. c. 18 Abb. N. C., 101; 9 Northeast. Rep., 320 (the rule applies where the physician called as witness had attended the patient upon the request of another physician, and not that of the patient himself); but compare Henry v. N. Y., Lake Erie, etc. R. R., Co., 10 N. Y. Supp., 508; s. c. 57 Hun, 76; 32 State Rep., 16 (holding that a surgeon who was not expected to treat or advise, but merely requested by an attending physician to examine plaintiff, was not disqualified from testifying against him); Heath v. Broadway, etc. R. R. Co., 57 N. Y. Super. Ct., 496 (in an action for personal injuries a physician, who called upon plaintiff in defendant's behalf, may testify); People v. Kemmler, 119 N. Y., 580; s. c. 24 Northeast. Rep., 9 (a physician who is sent to examine the mental condition of a prisoner charged with a murder, may testify for the prosecution); 8. p. People v. Sliney, 137 N. Y., 570; s. c. 33 Northeast. Rep, 150; Grossman v. Supreme Lodge, etc., 6 N. Y. Supp., 821 (a physician who made the rounds with an attending hospital

Note on Privilege of Professional Information of Physician.

physician out of curiosity and assisted him in the examination of deceased and partly attended her, but did not have charge of her, cannot testify as to decedent's condition); Matter of Loewenstine, 2 Misc. R., 323; s. c. 21 N. Y. Supp., 931 (a physician, who, merely as a visitor, assists the superintendent of an asylum, may testify as to an inmate's condition, which would have been apparent to any person having medical skill); Fisher v. Fisher, 129 N. Y., 654; s. c. 29 Northeast. Rep., 951 (a physician may be asked in answering a question as to the mental condition of a person, whom he has attended professionally, to exclude from his mind any knowledge or information which he acquired while acting as a medical attendant and to confine his answer to such knowledge and information as he obtained when the person in question was not his patient); S. P. Brigham v. Gott, 3 N. Y. Supp., 518; and Matter of Loewenstine, 2 Misc. R., 323; s. c. 21 N.Y. Supp., 931; but compare Matter of Darragh, 5 id., 58; s. c. 52 Hun, 591 (holding that a physician who attended a testator professionally and also visited her socially, could not give his opinion of testator's capacity formed from impressions received on friendly visits, as such impressions necessarily related to knowledge acquired professionally); Wiel v. Cowles, 45 Hun, 307, (communications with one acting as a physician, but not licensed as such, are not privileged).

Information:

California: Freel v. Market St. Ry. Co., 1893, 31 Pacific Rep., 730 (a physician cannot testify as to knowledge acquired in prescribing for a patient). Indiana: Heuston v. Simpson, 1888, 17 Northeast. Rep., 261 (a physician cannot testify as to the mental condition of his patient, whether his knowledge was derived from the latter's words, his own observation or examination); Pennsylvania Co. v. Marion, 1890, 23 id., 973 (a physician who dresses wounds in an accident cannot testify as to the victim's statements as to its cause). Michigan: Cooley v. Foltz, 1891, 48 Northwest. Rep., 176 (in an action for an assault, defendant may call as a witness the physician who attended plaintiff to prove the mere fact of such attendance; and the physician may also testify that when called in the plaintiff told

Note on Privilege of Professional Information of Physician.

him that she was suing and would want him as a witness); Breisenmeister. Supreme Lodge, K. of P., 1890, 45 Northwest. Rep., 977 (a physician may testify as to the number and dates of his visits). Missouri: Kling v. City of Kansas, 27 Mo. App., 231 (in an action for personal injuries a physician who treated plaintiff cannot testify as to whether he has been drinking). New York: Feeney v. Long Island R. Co., 116 N. Y., 375; s. c. 22 Northeast. Rep., 402 (a physician called in by one suffering from an accident cannot testify as to conversations with patient concerning the injury, or information derived from the examination); s. p. Jones v. Brooklyn, etc. R. Co., 3 N. Y. Supp., 253; Brown v. Rome, etc. R. Co., 45 Hun, 439 (in an action for personal injuries it is error to exclude the testimony of plaintiff's physician that plaintiff stated to him that he heard a person hallooing to him and saw a man swing his hat, but that he did not know where he was until the train was almost upon him); Hoyt v. Hoyt, 112 N. Y., 493; s. c. 20 Northeast. Rep., 402 (a physician may testify as to a conversation with a deceased testator as to the sanity of testator's child); Matter of O'Neil, 7 N.Y. Supp., 197 (a physician may testify as to his patient's declarations, as to his will and his advice on that subject); Harrington v. Winn, 14 N. Y. Supp., 612 (the physician of a deceased testator may testify as to his condition, where he states that though his information was acquired while attending deceased, it was not such as was necessary to enable him to act professionally); s. p. Matter of Halsey, 9 id., 441; Patten v. United Life, etc. Ins. Assn., 133 N. Y., 450; s. c. 31 Northeast. Rep., 342 (a physician may testify that his patient was sick and the number of times he attended him, in order to show that the patient was not in good health at a certain period); Numrich v. Supreme Lodge, etc., 3 N. Y. Supp., 552 (a physician may prove the mere fact of his attendance upon patient); Pandjiris v. McQueen, 13 id., 705, (a physician may testify that one attended his deceased patient as nurse); Van Orman v. Van Orman, 11 id., 931 (a physician cannot testify as to the mental capacity of his deceased patient); Kelly r. Levy, 8 id., 849 (in supplementary proceedings against a physician he cannot be compelled to deliver up an account book containing information received while attending patients);