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[Mar.

Appellate Term.

that the father upon the trial, in terms, waived the provisions of the Code above referred to, on behalf of his son. It having appeared that the boy and his mother were present in court prior to the waiver, the presumption is that they were still in court at the time of the waiver; and, as it does not appear that they objected to the waiver, it may be assumed from the circumstances that they acquiesced in the action of the father. Section 834, Code Civ. Proc., provides that "a person duly authorized to practice physic or surgery, shall not be allowed to disclose any information which he acquired in attending a patient. * And section 836 provides that section 834 shall apply to any examination of a person as a witness "unless the provisions thereof are expressly waived upon the trial or examination by * * * the patient." In order to determine the question presented, it becomes necessary-First, to ascertain whether in

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WAIVER OF PRIVILEGE OF COMMUNICATIONS TO ATTORNEY OR PHYSICIAN,continued.

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tial communication was made has passed to a third person, and he objects to the disclosure.

Benjamin v. Coventry, 19 Wend. 353.

By bringing an action for personal injuries in which the party's physical condition comes in question, the privilege of the statute is not waived so as to make admissible the testimony of physicians who attended the party some months prior to the accident but knew nothing of his physical condition at the time of or subsequent to the injury.

Butler v. Manhattan R. Co.,3 Misc. 453; 52 St. Rep. 498; 23 Supp. 163; 30 Abb. N. C. 78; Aff'd 143 N. Y. 630; 37 N. E. 826.

In Sheridan v. Houghton, 16 Hun, 628; 6 Abb. N. C. 234, which was a proceeding for probate of a lost will, the attorney who drew the will suffered himself to be retained by the heirs who opposed the probate thereof and refused to answer questions regarding its preparation, upon the ground that he was not at liberty, having been counsel for the testator, to disclose what he chose to consider condential communications. The court indicated that he should have been compelled to answer, although it is difficult to see, under § 836 of the Code of Civil Procedure as it stood then (1879), who was in position to waive the statute. The fact that the attorney appeared in the proceeding for the objectors to the probate could in no way affect the question.

The refusal of a patient to pay a physician's bill, nor the interposition of an answer putting in issue the allegations of the complaint in an action

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fants and others laboring under a disability are covered by the word "patient," as used in section 836; and, second, to ascertain (if infants are included in the term) the persons through whom the waiver may be made on behalf of the infant, or, rather, whether the waiver may be made by a patient.

Concerning the first (whether the word "patient” includes a person under a disability such as infancy, lunacy, etc.) it is to be said that these persons are certainly patients, within the ordinary meaning of the term, and that no reason is apparent why the term as used in the statute should be considered in any restricted sense, or otherwise than according to its ordinary acceptation; and this acceptation would make it cover all patients, regardless of their legal status. The statute should have a broad and liberal construction, to carry out its policy. Buffalo Loan, Trust & Safe Deposit Co. v. Knights Templar & Masonic Mut. Aid Ass'n, 126 N. Y. 455, 27 N. E. 942. Certainly one who has

WAIVER OF PRIVILEGE OF COMMUNICATIONS TO ATTORNEY OR PHYSICIAN,continued.

on such bill, does not amount to a waiver of the patient's privilege to object to a disclosure of communications to the physician.

Van Allen v. Gordon, 83 Hun, 379; 64 St. Rep. 781; 31 Supp. 907.

c. Who may make waiver.

The attorney for a party has authority to waive the privilege upon the trial of the action.

Alberti v. N. Y., L. E. & W. R. Co. 118 N. Y. 77; 23 N. E. 35.

Before the amendment of 1891 expressly permitted the personal representatives of a deceased patient or his executor to make the waiver, it was held that such representatives could not remove the seal.

Westover v. Aetna Life Ins. Co. 99 N. Y. 56; 1 N. E. 104.
Loder v. Whelpjey, 111 N. Y. 239; 18 N. E. 874.

In Staunton v. Parker, 19 Hun, 55, Talcott, P. J., had intimated that under § 836 of the Code of Civil Procedure, as it stood prior to the amendment of 1891 when waiver by the patient only was provided for, it was competent for the heirs of the patient to waive the statute against the objection of his executor. In view of subsequent decisions of the court of appeals just noticed this view was untenable. Since the amendment of 1892, heirs are competent to make such waiver.

The provision introduced into § 836 of the Code of Civil Procedure by the

[Mar.

Appellate Term.

been a patient prior to a disability does not become any the less a patient because of the disability. If it be contended, because of the requirement of a waiver by the patient, that the makers of the statute must have contemplated by the word "patient” only persons capable of waiving in person, as distinguished from those who might waive through a representative, it may be said in answer that such a construction would be technical, far from liberal, and more apt to aid in bringing about injustice, by a suppression of the truth, than to be a benefit to those whom it is the policy of the law to protect by the statute. Through such a construction it would follow that a physician attending a patient under a disability would be absolutely incompetent as a witness in favor of the patient, to show that which the patient is frequently otherwise unable to show, and that the object of section 834 was not absolutely to disqualify a physician from testify

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WAIVER OF Privilege of CoMMUNICATIONS to Attorney or PHYSICIAN, – continued.

amendment of 1892, permitting the surviving spouse, heirs or next of kin or any other party in interest, as well as the executors, to waive the statute as to a physician when the last will of the patient is in question, does not require that all those persons unite in the waiver.

Mater of Murphy, 85 Hun, 575; 66 St. Rep. 826; 33 Supp. 198; 24 Civ. Pro. 413; 2 Ann. Cas. 77.

In Bank of Utica v. Mersereau, 3 Barb. Ch. 528, 596, the Chancellor said, "Where the privilege belongs to several clients, I do not think any one of them, or even a majority, contrary to the expressed will of the others, can waive the privilege, so as legally to justify the attorney in giving testimony in relation to such privilged communications; especially in a case like the present, when the testimony of the attorney, as to matters communicated to him professionally, equally affects the moral character of all of his clients. Nor does the fact that the client, whose assent to the removal of the seal of professional confidence from privileged communications has not been obtained, is not a party to the suit in which his attorney is called upon to testify, alter the case."

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c. How waiver effected.

1. Testimony of client or patient.

On this phase of the question the cases are difficult to reconcile on any well defined principle, the waiver being held to have been effected or other

1900]

Corey v. Bolton.

ing. See Hoyt v. Hoyt, 112 N. Y. 493, 20 N. E. 402. A construction that the waiver cannot be made by persons under a disability would suggest that the statute is rather for the protection of those opposed to these persons, than in their favor, and does not at all accord with the views laid down in Pierson v. People, 79 N. Y. 434, where it was said of the statute that:

"In endeavoring to understand the meaning of the words used, much aid is received from a consideration of the mischief to be remedied or object to be gained by the statute. Statutes are always to be so construed, if they can be, that they may have reasonable effect, agreeably to the intent of the legislature; and it is always to be presumed that the legislature has intended the most reasonable and beneficial construction, and, where any particular construction would lead to an absurd consequence, it will be presumed that some exception or qualification was intended by the legislature to avoid such consequence."

It would seem to us that a reasonable construction requires a WAIVER OF PRIVILEGE OF COMMUNICATIONS TO ATTORNEY OR PHYSICIAN,continued.

wise according to the extent to which the patient or client in his testimony entered into the details of the communications.

The patient having testified in her own behalf as to professional communications on a previous trial, cannot, when the physician is called on a subsequent trial of the case, interpose her privilege. Having once removed the seal of secrecy, it connot be restored.

McKinney v. Grand St. P. P. & F. R. Co. 104 N. Y. 352; 10 N. E. 544. The bringing an action for personal injuries and testimony of the plaintiff as to the injuries do not amount to a waiver of privilege as to the physician who attended the plaintiff at the time of the injury.

Jones v. Brooklyn & W. E. R. Co., 21 St. Rep. 169; 3 Supp. 253; Aff'd 121 N. Y. 683; 24 N. E. 1098.

The case last cited was decided subsequent to the McKinney case in the court of appeals and it is noticed in the opinion but not on the question of the effect of the plaintiff's testimony. The plaintiff in the Jones case had simply testified that his leg was broken in the accident but a question to his physician as to the condition of the leg at that time was not permitted to be answered because calling for a privileged communication. Van Wyck, J., said, "That the plaintiff testified his leg was broken does not open the mouth of the physician to tell all the information he has acquired. The condition of the plaintiff's leg to the experienced eye of a physician might

[Mar.

Appellate Term.

holding that all persons regardless of disability, are included in the word "patient," as used in section 836, and have the privilege of the privacy, and the right to waive it.

If, then, infants can waive, the matter of waiver remains to be determined. A waiver is an intentional relinquishment of a known right, and must be by one capable of binding himself (Am. & Eng. Enc. Law, 526), and so cannot be made by an infant personally, for he has a right to be protected against his own imprudence. It is not to be assumed that the statute contemplated that persons under a disability should waive personally, and therefore some representative must have been in the minds of the lawmakers as authorized to make the waiver. With respect to infant patients who are not parties to an action at the trial of which the waiver is sought to be made, it seems that the

WAIVER OF PRivilege of CoMMUNICATIONS TO ATTORNEY OR PHYSICIAN,— continued.

have been disclosed much that had not been exposed, viz., scrofula in the glands of the leg, or erysipelas of the skin of the leg. It was admitted by both sides that the plaintiff's leg was badly fractured. Defendant certainly did not care to impress this fact upon the jury; therefore it must be son'e other information acquired by the physician which he sought to elicit. Did the bringing of the action, and the testimony of plaintiff that his leg was broken, waive his right to silence the physician in reference to the secrets he acquired? We think not, and it would not help plaintiff to show by these witnesses that his leg was broken, for that fact was really admitted, or rather not disputed, as well as the fact that it had been amputated."

By testifying as to his physical condition at a given time a patient waives the statute as to a physician treating him for the ailment which he has testified to.

Treanor v. Manhattan R. Co., 28 Abb. N. C. 47; 41 St. Rep. 614; 16 Supp. 536; 21 Civ. Pro. 364.

If a patient testifies to certain transactions had with a physician, the privilege is waived and the physician can be examined as to the entire professional intercourse involved.

Rauh v. Deutscher Vercin, 29 App. Div. 483; 85 St. Rep. 985; 51 Supp. 985.

Marx v. Manhattan R. Co., 56 Hun, 575; 31 St. Rep. 914; 10 Supp. 159; 18 Civ. Pro. 384.

In Morris v. N. Y. O. & W. R. Co., 148 N. Y. 88; 42 N. E. 410; O'Brien, J., says (p. 93) that Treanor v. Manhattan R. Co., 28 Abb. N. C. 47; 21 Civ.

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