Counsellor-at-Law, of the New York City Bar.
CONFIDENTIAL COMMUNICATIONS BETWEEN PHYSICIAN AND PATIENT.
PRIVILEGED COMMUNICATIONS.
Confidential communications between physician and patient not infrequently may relate to matters that are the subjects of inquiry before judicial tribunals. When these communications are by law excluded from disclosure in evidence, they are termed privileged communications. When such a disclosure is forbidden it is upon grounds of public policy,[207] “because greater mischiefs would probably result from requiring or permitting its admission, than from wholly rejecting it.”
COMMON LAW.
The common law required an inviolable secrecy to be observed by attorneys with reference to the communications which they had received from their clients.[208] But writers upon the law of evidence state that under the English rule protection from disclosure in evidence in a court of justice was not extended to communications between a medical man and his patient.[209]
Reasons for the Rule.—It does not clearly appear, in any of the cases usually cited as authority, why the distinction is made between legal and medical advisers, but it is apparent that the privilege does not rest upon considerations of honor nor of confidence,[210] nor even upon the urgency of the situation under which the communication is made; for disclosures are made to a physician frequently to save life, or to a priest for reasons of eternal import, while those made to an attorney insure at most protection from temporal annoyance. The privilege of attorneys seems to be founded upon considerations of public policy in the administration of justice in the courts; attorneys are a part of the system, as are grand jurors, petit jurors, and judges,[211] and even arbitrators;[212] but physicians are no part of that system, and a disclosure of confidences made to them in no way tends to weaken the system or render it ineffectual, while the compulsory examination of lawyers would tend to the suppression of the truth in litigation by discouraging confidence between attorney and client. This, perhaps, can be assigned as the reason for the distinction; a distinction which does not differentiate lawyers from physicians, but agents in the administration of justice from all others.[213]
Criticism of the Rule.—Though the privilege of attorneys was adopted to enforce respect for the law as securing the rights of persons entitled to its protection, by establishing inviolable confidence between them and the officer who represents them in their dealings in the law, and though it was not the purpose of the law to enforce sentiment or to elevate one profession above another, the sentimental idea did not suffer neglect for the want of advocates. Justice Buller lamented the narrowness of the rule,[214] and Mr. Best has criticised it as harsh in itself, of questionable policy, and at variance with the practice in France and the statute law in some of the United States of America.[215]