Medical Jurisprudence, Forensic medicine and Toxicology. Vol. 1

by R. A. Witthaus; Tracy C. Becker

THE PROVINCE OF THE COURT IN DEALING WITH THE PRIVILEGE.

All questions of the competency of evidence are solved by the Court and not by the jury.[442] The facts establishing the privilege are presented to the Court for its consideration. In Iowa it has been held that a fair trial demands that it should not be made to appear to the jury in an action that the patient is reluctant to waive his privilege, and that therefore the subject-matter of waiver has no place in the taking of testimony except when introduced by the party permitted to make it, and the Court should not allow the patient to be asked to answer under oath whether he is willing to waive his privilege.[443]

Whether it is the duty of the Court to enforce the privilege where it is apparent and the patient is not present to object, is a question that seems to be variously regarded. In Indiana a court has refused a new trial for newly discovered evidence of the privileged sort, on the ground that if objection were madeon the new trial it would be rejected.[444] But where the evidence of a physician to contradict another physician, who was witness to a will, was received without objection, it was said that it should not be withdrawn by the Court from the consideration of the jury or its value commented on as matter of law.[445]

In Michigan, it has been said that a commissioner, whose ordinary duty is to take all evidence offered, should refuse to take this privileged evidence; and that it should be stricken out without motion by the judge when returned by the commissioner, and that the physician should not be allowed to violate the privilege.[446] It has also been held that an order for the compulsory physical examination of a person by a physician for the purpose of testifying should not be granted, and that evidence so obtained should be stricken out, but on the ground that it was a violation of personal liberty, rather than of statutory privilege.[447]

But in New York it has been held that where a person voluntarily in an action exhibits an injured part as evidence, the adverse party is entitled to follow it up by a personal or professional inspection of the injured part.[448]

In Missouri, it has been said that the physician should be told that he is not at liberty to testify as to privileged information.[449]

In New York, in an early case in chancery, the chancellor said that a master was wrong in supposing there was legal evidence before him, where a physician had given evidence privileged under the statute;[450] but this decision was reversed on appeal, the Court of Errors saying that as no objection was made before the master by a party, the evidence was competent and legal.[451] This question seems to have been settled in New York by the decision in Hoyt v. Hoyt,[452] that the law does not prohibit the examination of a physician but it prohibits the evidence being received in the face of objection, so that if no objection is made by a party it is not the province of the Court to reject the evidence.

Where it appears that privileged information was improperly admitted, it is not ground for reversal on appeal if it is apparent that the appellant was not injured by its reception.[453]

Where the Court is not empowered to reject the evidence of its own motion, the objection upon which it can reject is the objection of a party to the suit, and doubtless of the patient, but not of the physician.[454] But because of the privilege, it has been held that a physician will not be ordered to turn over his books of account to a receiver appointed in proceedings supplementary to an execution on a judgment against him.[455] Nor will examination of his books of account before trial be compelled.[456]

It is the province of the courts, however, to enforce the law and not to legislate by grafting exceptions upon it.[457] They have refused therefore to except, by judicial decision, from the operation of the law, criminal proceedings, testamentary causes, evidence of crime in civil actions, cases of lunacy and habitual drunkenness and fraud,[458] in all of which it was urged in argument without effect that the administration of justice was impeded by the privilege; but where the spirit of the law was violated by an enforcement of its letter and the privilege made a cloak to shield the murderer of the patient, it was held to be inapplicable.[459] The courts have also refused by mere judicial decision to limit the privilege to the life of the patient.[460]