ARTICLE XXXVI.

PRIVILEGED COMMUNICATIONS TO

PHYSICIANS.

BY FREDERICK J. STIMSON, Esq.

OF DEDHAM.

It was a matter of regret to me that an accident prevented my having the honor of speaking for my profession upon this subject at the annual meeting of The Massachusetts Medical Association; but I have now the advantage of the discussion upon it made by Dr. Cheever and Mr. Soren. I have advisedly changed the title, for the reason that "Privileged Medical Communications" seems to imply that the statutes protecting such are limited to matters medical alone, whereas at least under some laws, such is not the case.

The papers read at the meeting, as well as the discussion in the Boston Medical and Surgical Journal which preceded it, had the valuable result at least of clearing the ground. Probably in the minds of both professions, medical and law, there was considerable haze upon this subject. Many of us had a vague idea that communications were privileged when made to a physician in the course of his attendance. This undoubtedly arose from the fact that all judges, under the English common law system of procedure, are clothed with very considerable discretion in their conduct of examinations, particularly cross-examinations, of all witnesses. This discretion is so great that, particularly in states

where there is no statute, the judges shape the law. For instance, in Massachusetts, which is among those conservative states still following the common law and rejecting codes, there is, I believe, no instance where a priest has been compelled to divulge the secrets of the confessional. Yet the priest is no more protected by any statutory provision than is the physician. This leads me to the chief of the contribution that I have to make upon the subject: that the question is really, in one of its principal aspects, hinged upon the dispute, with which we lawyers are so familiar, as to the relative advantages of codes, that is, statements of the law or of the common law more or less complete, made by newly drawn up statutory codes, which intend at least, to be exhaustive, -and the "common law" system, which accepts the English common law as it is, crystalized through a thousand years of court decisions in England and this country, and rarely attempts a new statute, still less a statute which is merely expressive of the common law. The lawyers of this country are still divided on this cardinal point into two schools, and the same is true of the state legislative systems. The older states, particularly those of English origin, stick to the common law, and never attempt to define it, rarely even to improve it by statute. The newer states, especially those where the codes prepared by the late David W. Field have been seriously considered, adopt the other view.. The "common law" states are Massachusetts and the New England states, Pennsylvania and the middle states except New York, and the Southern states generally, with one or two notable exceptions, such as Georgia, where they have a code which aims to be so complete as to exclude the necessity of referring to the common law at all. The Field codes of substantive law were generally adopted only in California, and the far westtern states following her lead, but the Field code of procedure was also adopted in New York, and there has been

a tendency to codification in New York since. I do not propose here to go into the argument between the two schools. The obvious view of the young western lawyer, who has not generally had a college education, and lives in a town possibly remote from libraries, is that it would be convenient to find all the law in the statutes. We are told in the early lives of Abraham Lincoln that one of the two or three books that he first read and almost learned by heart, was a volume of the revised statutes of Indiana somewhat dry reading, we should think, to-day. The reply to this argument by the common law believers is that the effect of a code is to wipe out all the certainty that we have gained from past history, and to lose the benefit of the infinite number of adjudged cases where the law was decided in the absence of a statute and where, even now, no statute could possibly be drawn which would apply. Under the common law most cases, after all, have been the subject of judicial decision. Moreover the vagueness of the discretion left to the judge is possibly of advantage. Under the code system, nothing is certain that is not in the code. No discretion to be strict or to be lenient can possibly be allowed the judge; and until every sentence, every word, every punctuation mark, has been the subject of a court decision, we cannot be certain of what the law is.

Thus it happens that in this matter of privileged communications there has been under the common law very great discretion exercised by the judges, extending, as I have said, in the case of priests at least, to a complete privilege, and probably in the case of physicians, to a very considerable protection. This protection is given, it is true, at the court's discretion; but is the more adjustible to the reason of each case by that very fact; and at least one thing is clear, - that if we are to have a statute on the subject, that statute must necessarily be a rod of iron. It must apply to all cases equally; and nothing on the one side of the line

can be allowed and nothing on the other side can be excluded. No one, for instance, contends that the privilege of physicians should be extended to cloak crime, and yet it is extremely probable that, if the statute were passed, there might be some other cases where the admission of a physician's testimony would be for the public advantage; and on the other hand, even when the privilege is extended in civil matters only, it should certainly not go so far as to prevent a physician from testifying as to the mental condition of a deceased testator in a contest over a will.

In short, I believe that the general question will be largely determined, at least by lawyers, according as they believe or do not believe in general statutory codes.

Coming now to the concrete matters. It is clear, as I have said, that the following points are fairly established: first, the lawyer at common law has a privilege, the physician and priest have not; second, the privilege should rarely, if ever, be extended to criminal cases; third, the privilege exists for the benefit of the patient or client, and not for that of the physician or lawyer. There are other points which are very uncertain, at least in states where they have a statute upon the subject, e. g. whether the privilege extends to actual communications or also to matters of observation which fell under the notice of the physician while occupying the relation of medical adviser to the patient; whether the patient must, in fact, have employed the physician or have known that he was so employed; whether and under what circumstances the privilege may be waived.

The statutes, in so far as they have been adopted, fall also into several classes. According to the latest text book on the subject, that of Mr. Arthur M. Taylor of New York, they have not been adopted in New England and the middle states, except New York and Pennsylvania; but the Pennsylvania statute is very moderate, applying only to civil cases; in the South they have been adopted only by