influence her to abandon the prosecution for bigamy are not privileged."

§ 179. Communications passing between medical practitioners and their patients. At common law communications to medical men were not privileged. Although a physician who voluntarily discloses professional secrets would, from a medical and moral standpoint, be guilty of a gross indiscretion, the law does not treat them as privileged, and, in the absence of statute, he may be compelled to testify upon the witness stand.78 Every consideration that furnishes a basis for affixing a privilege to communications or information passing between attorney and client applies, with equal force, to the relation of physician and patient. Aside from the benefit to the patient in encouraging him to make a full disclosure, by means of which he may receive better treatment, the danger that the truth will be perverted or concealed, perhaps unconsciously, by the physician who is compelled to disclose medical secrets on the witness stand, in the struggle between professional duty and legal duty, is removed.

It is now often provided by statute that no physician or surgeon shall be allowed or compelled to disclose any information which he has acquired while attending a patient, or which was necessary to enable him to act as such.79

77

Gillooley v. State, 58 Ind. 182, 184; Hills v. State, 61 Neb. 589, 85 N. W. 836, 57 L. R. A. 155n.

78 Baker v. London &c. R. Co., L. R. 3 Q. B. 91; Duchess of Kingston's Case, 20 How. St. Tr. 573-580 (1776); II Harg. St. Trials 243; People v. Stout, 3 Park. Cr. (N. Y.) 670, 673; Pierson v. People, 79 N. Y. 424, 433, 35 Am. 524; People v. Lane, 101 Cal. 513, 36 Pac. 16; Wilson v. Rastall, 4 T. R. 753, 760, 2 R. R. 515; Falmouth v. Moss, II Price 455, 470, 25 R. R. 753; Reg. v. Powell, 1 C. & P. 97 (where a surgeon who attended the accused who was indicted for the murder of her child could not refuse to testify to her confession); Greenlaw v. King, I Beav. 137, 145; Rus

sell v. Jackson, 9 Hare 387, 391; Anderson v. Bank, L. R. 2 Ch. D. 644, 650, 45 L. J. Ch. 449, 35 L. T. (N. S.) 76, 24 Wkly. Rep. 624.

70 "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." N. Y. Code Civ. Proc., § 834; California Code, Civ. Proc. § 1881; Indiana Rev. St. 1881, § 497; Michigan, 2 Howell's An. St. § 7516; Missouri R. S. 1879, p. 690, § 4017; Ohio R. S. 1884, p. 1096, § 5241; Wisconsin An. S. 1898, $ 4075. Similar statutes exist in many other states; 17 Am. St. 570, note.

These statutes are designed to protect the patient, not the physician, and, being remedial in their nature, ought to receive a liberal construction which will fully effectuate their wise and humane provisions. The principles of law applicable to privileged communications in the case of attorney and client may be invoked here. No regular contract of hiring or payment of a fee by the patient need be proved. It is unnecessary to show that the patient called him or procured his attendance. If the physician was summoned by a friend or a relative, or even by a stranger standing by, or by an attending physician, it is sufficient, provided he attended as a physician.80 If a physician attend a person under circumstances calculated to produce the impression that he does so professionally, and his visit is so regarded and acted upon by the person, it is enough to establish the relation.81 These statutes expressly confer the privilege upon such information only as "it was necessary to communicate to enable the physician or surgeon to act or prescribe." He will be compelled to testify to all facts with which he became acquainted which were not necessary to the exercise of his professional skill.82 The mere existence of the professional relation of physician and patient is not enough. He must testify to all information acquired while attending the patient, if the information was not necessary to enable him to act or to prescribe.83

80 Renihan v. Dennin, 103 N. Y. 573, 579, 9 N. E. 320, 4 N. Y. St. 261; 18 Abb. N. Cas. 101, 25 Wkly. Dig. (N. Y.) 172, 57 Am. 770; Ætna Life Ins. Co. v. Deming, 123 Ind. 384, 395, 24 N. E. 86, 375; Raymond v. Burlington &c. R. Co., 65 Iowa 152, 154, 21 N. W. 495.

81

People v. Murphy, 101 N. Y. 126, 129, 4 N. E. 326, 54 Am. 661, 4 N. Y. Cr. 95; People v. Stout, 3 Park. Cr. (N. Y.) 670, 675-680. In People v. Stout, a prisoner, while in jail and suffering bodily injuries, was examined by the jail physician, and afterwards, with his consent, by two physicians sent by the coroner. It appeared that all parties understood that the examinations were made with a

view to medical treatment, though not expressly so stated, and though no medicine was given or prescribed. The physicians were not permitted to testify to the physical condition of the accused. Compare Babcock v. People, 15 Hun (N. Y.) 347, 355.

82 Meyer v. Standard &c. Ins. Co., 8 App. Div. (N. Y.) 74, 40 N. Y. S. 419; Campau v. North, 39 Mich. 606, 609, 33 Am. 433n; Briggs v. Briggs, 20 Mich. 34, 40; People v. Sliney, 137 N. Y. 570, 580, 33 N. E. 150, 50 N. Y. St. 391; Feeney v. Long Island R. Co., 116 N. Y. 375, 22 N. E. 402, 5 L. R. A. 544; Collins v. Mack, 31 Ark. 684, 693, 694.

83 Hewitt v. Prime, 21 Wend. (N. Y.) 79, 81; Babcock v. People, 15

He may testify that he attended a patient, the number of visits he made, the persons whom he found present and generally what the patient said to him not strictly in reference to his physical or mental condition.

But where the statute expressly excludes all information communicated to or acquired by a medical man in the course of his professional duties, or "while attending a patient professionally," all knowledge of whatever description gained from the physician's observation, or from the examination of the patient, or from the latter's statements, is excluded.85

86

The privilege may, at least in civil cases, be waived by the patient or by his personal representative who is expressly authorized to do so. So, in a prosecution for rape, the general rule is that the physician who attended the woman may testify to any facts within his knowledge. His calling as a witness for the prosecution is an implied waiver of the privilege. Where the statute requires that the patient shall consent that the physician

Hun (N. Y.) 347, 354; Hoyt v. Hoyt, 112 N. Y. 493, 515, 20 N. E. 402, 21 N. Y. St. 593; Westover v. Ætna Life Ins. Co., 99 N. Y. 56, 60, 1 N. E. 104, 52 Am. In. On the other hand it has been said that as soon as the relation of physician and patient is shown to exist, it will be conclusively presumed that all oral communications were made for the purpose of enabling the physician to prescribe. The necessity and purpose of the communication need not be proved. Feeney v. Long Island R. Co., 116 N. Y. 375, 380, 381, 22 N. E. 402, 5 L. R. A. 544; Edington v. Mutual Life Ins. Co., 67 N. Y. 185, 194; Grattan v. Metropolitan Life Ins. Co., 80 N. Y. 281, 297, 36 Am. 617.

Cooley v. Foltz, 85 Mich. 47, 49, 48 N. W. 176.

"If the knowledge is acquired in the chamber of the patient, and in the discharge of professional duty, the physician can make no disclosure. This is true, whether the knowledge

is communicated by the words of the patient, or is gained by observation, or is the result of a professional examination." It is immaterial by what method the physician acquires his knowledge. Heuston v. Simpson, 115 Ind, 62, 63, 17 N. E. 261, 7 Am. St. 409; Renihan v. Dennin, 103 N. Y. 573, 578, 9 N. E. 320, 57 Am. 770; Edington v. Ætna Life Ins. Co., 77 N. Y. 564; Grattan v. Metropolitan Life Ins. Co., 80 N. Y. 281, 36 Am. 617; People v. Stout, 3 Park. Cri. (N. Y.) 670, 675; Morris v. New York &c. R. Co., 148 N. Y. 88, 42 N. E. 410, 51 Am. St. 675.

testify, consent may be inferred in the case of a minor on whom a rape had been committed, from the action of the minor's parents, in prosecuting the criminal.87

88

§ 180. Death of the patient-Purpose of the communication-Contemplated crime.-The statutes of privilege are usually applicable both to civil and criminal trials. This is the rule even when the statute is couched in the most general terms.87a But in some of the states the statutes are expressly limited to civil cases.' Where the statutory privilege is applicable to criminal trials in a homicide trial, it would seem that the testimony of the attendant physician, proving the dying declaration of the victim, ought to be excluded, for it is clear that his statement that he is dying and his description of the manner of his wounding are necessary to enable the physician to prescribe. The statute was never intended as a defense for criminals. Its plain purpose is not to protect murderers, but to shield the memory of the dead." Hence a physician who has been consulted, in advance, by the accused, as to the best mode of procuring an abortion on a third person may state what was said,90 as for example that he was asked by the accused to procure an abortion and that he refused to do so,°1 upon the theory that the relation of physician did not exist between them and that no disgrace is cast upon the object of the contemplated crime.

91

But a communication made by the accused that a woman, for

may testify. The question is without any judicial adjudication so far as the author can ascertain.

Babcock v. People, 15 Hun (N. Y.) 347, 354; Hewitt v. Prime, 21 Wend. (N. Y.) 79; Hauk v. State, 148 Ind. 238, 46 N. E. 127, 47 N. E. 465. Cf. People v. West, 106 Cal. 89, 39 Pac. 207; State v. Smith, 99 Iowa 26, 68 N. W. 428, 61 Am. St. 219 (causing miscarriage).

1 Seifert v. State, 160 Ind. 464, 67 N. E. 100, 98 Am. St. 340, which expressly states that a "request to a physician to commit a crime is never privileged."

92

whom he engages the physician's professional services, was pregnant by him and that either she or he had attempted to produce a miscarriage, in which he had assisted her, is privileged when made to enable the physician to give the woman proper and legal medical treatment." So a physician who has attended professionally a person who died from poison, alleged to have been administered by the accused, may in testifying for the prosecution describe the patient's condition both from his own observation and from what the patient told him.93

A construction, which would operate to convert a statutory provision, intended to protect a patient from a damaging or objectional disclosure, into a protection for a person accused of the murder of the patient, cannot be admitted nor can we believe that such was the legislative intent."*

$181. Communications made during examination to detect or ascertain sanity.—A physician who is sent by the court to examine into the mental or physical condition of a person, e. g., of the accused, while in jail, merely to determine his sanity, may testify to his mental or physical condition, and even to what the accused said to him about the crime," but only if it is conclusively shown that the relation of physician and patient did not and was not supposed by the accused to exist."7

95

§ 182. Secrecy of telegrams.-Telegraphic dispatches are not privileged communications. But in many of the states statutes

93 Pierson v. People, 79 N. Y. 424, 432 (which, however, refuses to lay down any general rule), 35 Am. 524.

People v. Harris, 136 N. Y. 423, 437, 448, 33 N. E. 65, 49 N. Y. St. 751. In this case a physician testified to the removal of a dead fœtus from a woman of whose homicide the prisoner was accused, and that the defendant at the time stated he had twice procured an abortion on her, she being his wife. See, also, Hauk v. State, 148 Ind. 238, 46 N. E. 127, 47 N. E. 465.

In Harrison v. Sutter St. R. Co., 116 Cal. 156, 47 Pac. 1019, it was held under a statute conferring the priv ilege on "information *** which was necessary to enable him (the physician) to prescribe,” that information obtained by a physician, when conducting an autopsy, is not privileged. See, also, ante, § 164.