6. The sixth duty of a Doctor is of a different kind. There exists a tacit or implicit contract between him and his patients that he shall keep their secrets of which he becomes possessed in his professional capacity. It is always wrong wantonly to betray the secrets of others; but the Doctor is bound by a special duty to keep his professional secrets; and it is doubly wrong and disgraceful in him to make them known. For instance, if he has treated a case of sickness brought on by sinful excesses of any kind, he is forbidden by the natural law to talk about it to such as have no special right to know the facts. Parents and guardians are usually entitled to be informed of their children’s and their wards’ wrong-doings, that they may take proper measures to prevent further evil. Besides, the Doctor is properly in their service; he is paid by them, and, therefore, his contract is with them rather than with the children. He can, therefore, prudently inform them of what is wrong, but he cannot inform others.
It is a debated question in Medical Jurisprudence whether the Doctor’s professional knowledge of criminal acts should be privileged before the courts, so that he should not be forced to testify to a crime that he has learned from his patients while acting as their medical adviser. Dr. Ewell speaks thus on the subject (p. 2): “The medical witness should remember that, by the common law, a medical man has no privilege to avoid giving in evidence any statement made to him by a patient; but when called upon to do so in a court of justice, he is bound to disclose every communication, however private and confidential, which has been made to him by a patient while attending him in a professional capacity. By statute, however, in some of the United States, communications made by a patient to a physician when necessary to the treatment of a case are privileged; and the physician is either expressly forbidden or not obliged to reveal them. Such statutes exist in Arkansas, California, Indiana, Iowa, Ohio, Michigan, Minnesota, Missouri, Montana, New York, and Wisconsin. The seal upon the physician’s lips is not even taken away by the patient’s death. Such communications, however, must be of a lawful character and not against morality or public policy; hence, a consultation as to the means of procuring an abortion on another is not privileged, nor would be any similar conference held for the purpose of devising a crime or evading its consequences.
“A report of a medical official of an insurance company on the health of a party proposing to insure his life is not privileged from production; nor is the report of a surgeon of a railroad company as to the injuries sustained by a passenger in an accident, unless such report has been obtained with a view to impending litigation.”
The practical rule for a Doctor’s conscience on the subject of secrecy is, that he must keep his professional secrets with great fidelity, and not reveal them except in as far as he is compelled to do so by a court of justice acting within its legal power or competency. If so compelled, he can safely speak out; for his duty to his patient is understood to be dependent on his obedience to lawful authority.
As to the question of Jurisprudence whether the courts ought to treat the physician’s official secrets as privileged, in the same way as they do a lawyer’s secrets, this will depend on the further question whether the same reasons militate for the one as for the other. The lawyer’s privilege is due to the anxiety of the state not to condemn an innocent man nor a guilty man beyond his deserts. To avert such evil, the accused party needs the assistance of a legal adviser who can guide him safely through the mazes and technicalities of the law, and, even should he be guilty, who can protect him against exaggerated charges and ward off unmerited degrees of punishment. Now, this can scarcely be accomplished unless the attorney for the defence learn from his client the entire truth of the facts. But the client could not safely give such information to his lawyer if the latter’s professional secrets were not held sacred by the court of justice.
Can the same reasons or equivalent ones be urged in behalf of the physician? I do not see that they can. And I notice besides that, if he be excused from testifying against his patients, all their servants and attendants would seem to be entitled to the same privilege. Many persons, I think, labor here under a confusion of ideas; a Doctor is as sacredly bound to keep his patients’ secrets as a lawyer is in regard to his clients, but it does not follow that the law cannot grant a privilege to the one and refuse the same to the other, for reasons which require it in the case of the lawyer and not in that of the Doctor.
III. Besides the rights and duties which arise for the physician from his contracts with the state and with his patients, there are other claims on his conscience, which proceed from his character as a man, a Christian, and a gentleman.
1. As a man, he is a member of the human family, not a stranger dwelling amid an alien race, but a brother among brothers. He cannot say, as did the first murderer, Cain, “Am I my brother’s keeper?” But rather he must carry out the behest of the great Father of the human family: “God has given to each one care of his neighbor.”
The maxim of Freemasons is that every member of that secret society must come to the assistance of every brother-mason in distress. But the law of nature and of nature’s God is wider and nobler; it requires every man to assist every fellow-man in grievous need. The rich glutton at whose door lay Lazarus dying of want was bound, not by any human but by the higher law, to assist him; and it was for ignoring this duty that the soul was buried in hell, as the gentlest of teachers expresses it.
(a) As physicians, as men, you will have duties to the poor, who cannot pay you for your services; they are your fellow-men. Their bill will be paid in due time. He is their security who has said: “Whatsoever you have done to the least of these, you have done it unto Me.” He may pay you in temporal blessings, or in still higher favors, if you do it for His sake; but pay He will, and that most liberally: “I will repay,” says the Lord. The rule of charity for physicians is that they should willingly render to the poor for the love of God those professional services which they are wont to render to the rich for pecuniary compensation. While thus treating a poor patient they should be as careful and diligent as they would be for temporal reward; what is done for God should not be done in a slovenly fashion.