are those which it is his bounden duty to disclose. It is a safe formula that, unless there are overpowering reasons to the contrary, a patient's secret should be held inviolable by his medical adviser, almost, if not quite as binding as the Confessional of the Roman Catholic Church. When it involves the commission of crime, morality and justice require the breaking of a confidence." Says Taylor's Medical Jurisprudence, edition of 1897:-"The safer rule for the physician is never, under any circumstances, to reveal the confidence of his patient, and to preserve inviolate any secret obtained in the course of his professional practice."

The doctor in a court of law is in a false position-false in proportion to his sense of honor. Some would go to prison rather than betray a confidence- some would consider (and so say the judges), that the law absolved them. The law should recognize the rights of the patient, the duties of the medical man, and the justice due the community.

How can these difficulties be reconciled? We propose the following for consideration:

It shall be considered unprofessional for a physician to divulge anything confided to him by a patient, unless : 1. With the patient's consent.

2. To defend himself when accused.

3. To expose crime.

In all other cases, such professional confidences shall be classed as "privileged communications." It shall be a question of honor whether the physician shall feel it his duty to repeat such a "privileged communication"; if he conscientiously declines, he shall be protected; if he testi fies, it shall be before a judge, in private.

ARTICLE XXXV.

THE WORKINGS OF THE NEW YORK

LAW.

BY WALTER SOREN, Esq.

OF BROOKLINE.

THE original form of the New York law in regard to confidential communications between physician and patient (passed at least as early as 1836) 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."

The best way to treat the subject, is to illustrate as well as possible by citing cases, how the New York courts have construed the most important points in this statute.

In its practical application the statute has been considered as passed solely for the protection of the patient, and has been construed somewhat liberally in his favor. Under recent amendments allowing the privilege of secrecy to be waived by the patient or his heirs, no other parties can be allowed to take advantage of the statute if the proper waiver has been made.

Another practical point is that a party at a trial wishing to take advantage of the statute, must claim the privilege, and show that he is entitled to it, as soon as the objectionable question has been put. If he waits to see whether the answer is favorable to him or not, it is then too late to object in any form.

Theoretically I shall invite your attention to only three points in this statute which have been passed upon by the higher courts of appeal :

I. What shall be considered to constitute the relation of physician and patient?

II. In any given case, what shall be considered as information "acquired in attending a patient"?

III. What information shall be considered as necessary" to enable the physician to act as such?

Instead of trying to give a complete answer to any of these questions in abstract form, it has seemed more in accord with the general idea of this paper, to cite a number of cases on each point, and thus afford a good opportunity for the formation of individual opinion as to the working of the law. The cases from "N. Y." reports are of undoubted authority. Those from Hun and "State" reports, are the decisions of inferior courts, but are in accordance with the principles laid down by the higher court, and are believed to be good law. Each case should be considered with particular reference to the point under which it is cited, as it has not been fully considered or reported with reference to such other points in it as may seem important on general principles.

The cases are also arranged as nearly as possible with reference to their closeness of application.

First, those referring to the relation of physician and patient :

:

At the trial of an action involving the validity of a certain will,' it appeared that a short time before the execution of the will and the testator's death, the attending physician called another physician who attended in consultation as to the testator's condition and treatment. One of the parties called the consulting physician as a witness, and desired to show by his testimony whether the testator was in a conscious or unconscious condition when examined by him.

It was decided that the relation of physician and patient arose here, under the circumstances, even though the patient might not have known or recognized the consulting physician, and that the consulting physician therefore could not testify as to the condition in which he found the patient.

On an inquisition as to sanity by a jury before commissioners, held some time after the patient had been set free from an asylum, evidence was offered of the opinion of certain physicians who had treated him at the asylum, as to his condition when he left. On objection being made on behalf to the patient, it was decided that these physicians could not give their opinion as requested, inasmuch as it was necessarily based upon facts observed while treating him professionally.

At the trial of an action against a life-insurance company," to recover the amount of the policy, the defence was that the insured had made a false statement in his application, as to the health of a brother. It appeared that a month before the application was made, a physician had examined the brother's physical condition at the request of the brother's employer who received the physician's report and paid him his fee. The physician told the employer that the man was not well enough to continue in business; and also told the brother that he was hopelessly ill, but did not prescribe for the case or give any advice as to its treatment, or have any further connection with it. It was decided, however, that the physician could not be allowed to testify as to the results of the examination; as the patient was entitled to the privilege of secrecy on properly submitting himself to a physical examination, whether or not it was for his own benefit, or at his own expense.

At the trial of an action against a railroad company to recover damages for personal injuries received in an accident, the defendant called as a witness a doctor (usually employed by it as an expert) who testified that some two

weeks after the accident, the attending physician of the plaintiff brought the latter to the office of the witness and asked him to examine the plaintiff and see what was the matter with him. He testified that he made an examination and among other things examined the ribs. He was then asked the question "Did you find any fractured rib"? It was decided that this might be answered inasmuch as it was not shown that the witness was requested or expected to treat or prescribe, or to advise respecting treatment, or that he did either.

In a case where the sanity of a person on trial for murder was drawn in question, it appeared that certain physicians had been sent to the jail by the district attorney to make an examination of the prisoner's mental and physical condition. It was decided that they might properly testify as to their opinion of the prisoner's mental condition merely, as they saw him in the cell and in the court-room, but could not testify as to any statements that he made or as to his physical condition.

These cases are sufficient to bring out the most important of the points involved in the first question.

It will be desirable here to mention the following amendment, passed in 1893: "In an action for the recovery of damages for a personal injury, the testimony of a physician or surgeon attached to any hospital, dispensary, or other charitable institution, as to information which he acquired in attending a patient in a professional capacity at such hospital, dispensary, or charitable institution," shall be taken before a referee, but the court may in its discretion summon him as a witness.

No case has been found involving this amendment, but it does not seem to contain any points of obscurity. Since this amendment was passed, one or two cases have been decided in which it might have had some application, but it does not appear to have been taken into account. However, they are of interest on the general subject.