recognizes the nature of the case and the dangerous condition of the patient. He demands, in the cause of justice, to know the name of the author of her trouble, and of the one who had undertaken a criminal interference. An officer of justice is summoned to receive her testimony. The woman dies. The newspapers give publicity to the case, with all its details. The physician acted from his sense of duty, his object being the punishment of the offenders against the law. As results of his action, the moral effect of the steps taken in behalf of justice may have contributed to the death of the patient, and, at least, it is fair to conclude that the misery of her last hours was thereby increased; she left a dishonored memory; disgrace was brought upon the relatives of both parties, he being a husband and the father of a family. After all, the surviving offenders eluded punishment. This is not a hypothetical case. It is left to the reflections of the reader, with but brief comment. point of view was the action of the physician to be justified, although taken with good intentions. Knowledge of the fact of malpractice was essential to a proper appreciation of the case. Further knowledge was not essential, and it was taking an ungenerous and improper advantage to demand it. Compliance with the wishes of the patient, voluntarily and deliberately expressed, could afford the only ground for excuse in the non-observance of secrecy.

In no

The duty of the physician in giving testimony as a medical witness may be regarded from two points of view, namely: medical ethics, and existing laws relating to the subject. As regards the former, he must be himself the judge; in the latter, he will be instructed by legal advisers and the courts. It may happen that there is not agreement in these two points of view; in other words, he may be required to give testimony respecting matters which, in his judgment, are in the category of professional secrets. He must decide

in such a case whether he will act in opposition to his convictions of ethical duty, or refuse to testify and accept the consequences, whatever they may be. One who has confidence in his own interpretation of duty, and holds the dictates of conscience to be above all other considerations, will refuse to testify, provided he have firmness enough to take that position. On the other hand, a refusal will not come from those who are distrustful of their ability to judge correctly of ethical duty, or from those who believe that in a conflict between the dictates of conscience and the interpretation of existing laws the latter should prevail; or, again, from those who would rather yield than submit to the consequences of not yielding.

The section of the code of ethics prefixed to these remarks is definite and comprehensive as to the duty and the scope of professional secrecy. Aside from the sense of honor and humanity, this portion of the code affects practitioners of medicine merely in relation to policy. The interests of the public, much more than those of physicians, are involved in this portion of the code. But, in view of these interests, it should be an object with members of the medical profession to secure the enactment of laws which are in full agreement with the letter and the spirit of the code. Testimony which involves a violation of medical ethics should not only be not required, but prohibited. For declining to give testimony, a declaration under oath that it would be a dereliction of the duty of secrecy should suffice.

In the laws of the State of New York there is a statute which is in harmony with the code of medical ethics. It is headed "Physicians not to disclose Professional Information," and reads as follows: "A person duly authorized to practice physic or surgery shall not be allowed to disclose information which he acquired in attending a patient in

any

a professional capacity, and which was necessary for him to act in that capacity."

A summary of the New York cases, and examples drawn therefrom, may be of interest to the reader.*

"It must be assumed, from the relationship existing, that the information would not have been imparted except for the purpose of aiding the physician in prescribing for the patient. Information means not only communications received from the lips of the patient, but such knowledge as may be acquired from the patient himself, from the statements of others who surround him, or from observations of his appearance and symptoms." Edington vs. Mutual Life Insurance Company, 5 Hun., 1.

"But communications made to persons in attendance at the office of a physician during his absence, and not shown. to have been made as the basis of a prescription, are not privileged." Kendall and Gray, 2 Hill, 300.

"Nor does the statute preclude the physician from testifying to the nature of the disease and the character of the treatment when he sues to recover for his services." Kendall and Gray, 2 Hill, 300.

"But whenever a visit is regarded and acted upon as professional, the statute applies; as, for example, when a wounded man accused of murder was visited by two physicians at the request of the coroner, held on the trial that the physicians could not as witnesses disclose the information that they acquired on such visits, as the prisoner knew them to be physicians, and submitted to questions for that reason." People vs. Stout, 3 Park. Cr., 670.

"In an action for divorce, the physician can not be required to testify to conversations which were held with him in his professional capacity, although these conversations

* Furnished by a legal friend, Edward H. Strobel, Esq.

tended to establish adultery." Hume vs. Hume, 1 N. Y. Sup., 499.

"Nor can a physician be required to testify whether a person had venereal disease when under his care." Sloan vs. N. Y. C. R. R., 45 N. Y., 125.

"There seem to be the two following exceptions to the statute: An application to a physician for means of procuring an abortion, accompanied by a disclosure of the female's name, is not privileged, the ground of the decision being that it was doubtful whether such a communication should be considered as made while consulting the physician professionally, and that the information was not essential to enable him to prescribe." Hewitt vs. Prince, 21 Wend., 79.

"The statute creates merely a privilege in favor of the patient, and there is no person, after the patient's death, entitled to assert it. Hence, the statute has no application when a physician is called, in probate of a will, to testify touching the capacity of the deceased patient." Allen vs. Public Administrator, 1 Bradf., 21.

"Both these exceptions are doubted in Edington vs. Life Insurance Company, on appeal to Court of Appeals, 67 N. Y., 185. The latter exception was virtually overruled in that case, it being held that the protection which the law gives to professional confidence does not cease upon the death of the party; the seal which the law fixes upon such communications remains unless removed by the party himself or his legal representative."

"It must be understood that the privilege is that of the party and not of the witness. The testimony of a physician, if not objected to by the patient, is admissible. If the party interested waive his right, the physician may be examined." Johnson vs. Johnson, 14 Wend., 637.

A statutory law substantially the same as in the State of New York exists in the following States of the Union: Mis

souri, Wisconsin, Iowa, Indiana, Michigan, Arkansas, and California.

The law in England makes the divulging of professional secrets compulsory. "In the case of the Duchess of Kingston, it was decided that in a court of justice medical men are bound to disclose these secrets when required to do so. Lord Mansfield said on that occasion, 'If a medical man voluntarily revealed these secrets, to be sure he would be guilty of a breach of honor and of great indiscretion, but to give that information which by the law of the land he is bound to do will never be imputed to him as any indiscretion whatever.' In that case Sir C. Hawkins, who had attended the Duchess as a medical man, was compelled to disclose what had been communicated to him in confidence. This is the leading case in England, and fixes the law in that country; or, in better words, it is the common law rule." It will be noted that the decision referred to takes cognizance only of the rights of the medical man, not those of his patients.

The law in France recognizes fully the obligation for secrecy on the part of physicians, as appears from the following citation: "Obligation des médecins envers les particuliers qu'ils traitent.

"Comme un médecin est souvent dans l'occasion de connaître les secrets de ses malades, soit par la confiance qu'on peut avoir en lui, soit par les conjonctures qui rendent sa présence nécessaire, lorsqu'il est question de quelque affaire secrète, il est de son devoir de ne point abuser de ce qui est venu à sa connaissance, et de garder à cet égard un secret inviolable. Ce secret est ordonné par un article des statuts de la faculté de médecine, qui porte: Aegrorium arcana, visa, audita, intellecta, nemo eliminet."—Merlin, Repertoire de jurisprudence," tome 20, titre, "Médecin," § 111.