II. The Witness.—In Indiana, Ohio, and Wyoming the privileged witness is termed a physician; in the other States and Territories, the privilege extends to a physician or surgeon.
In Arkansas and Indian Territory the privilege is secured to a person authorized to practise physic or surgery; in California, Montana, and Nevada, to a licensed physician or surgeon; in Colorado, to a physician or surgeon duly authorized to practise his profession under the laws of the State; in Michigan, New York, North Carolina, and Wisconsin, to a person duly authorized to practise physic or surgery; in Minnesota, Oregon, and Washington, to a regular physician or surgeon; in Iowa and Nebraska, to a practising physician or surgeon; in the remaining States and Territories, these statutes do not in terms distinguish between licensed and unlicensed practitioners.[225]
In New York, by the amendment of 1893 to Sec. 836 of the Code of Civil Procedure it is provided that in an action for the recovery of damages for a personal injury the testimony of a physician or surgeon attached to any hospital, dispensary, or other charitable institution, as to information which he acquired in attending a patient in a professional capacity in such institution, shall be taken before a referee. It does not appear whether this amendment is intended to take away the privilege, or merely to regulate the manner of taking such testimony when it is otherwise admissible.[226]
III. The Evidence.—The character of the communications which are privileged differs under the several statutes. In Arkansas, California, Colorado, Idaho, Indian Territory, Michigan, Minnesota, Missouri, Montana, Nevada, New York, North Carolina, North Dakota, Oregon, South Dakota, Utah, Washington, and Wisconsin, they are characterized as information; in Indiana, as matter committed; in Iowa and Nebraska, as confidential communications; in Kansas, Ohio, Oklahoma, and Wyoming, as communications; in Iowa and Nebraska, it is further provided that they be properly intrusted; and in Kansas and Oklahoma, that they be with reference to a physical or supposed physical disease.
In Kansas and Oklahoma, any knowledge obtained by a personal examination of a patient is also expressly privileged.
In Indiana, Ohio, and Wyoming, advice given by the physician is covered by the protection.
In Arkansas, Indian Territory, and Missouri, the privilege is limited to information acquired from the patient; and in Kansas and Oklahoma, to communications made by the patient.
The statutes of Arkansas, California, Colorado, Idaho, Indian Territory, Indiana, Michigan, Minnesota, Missouri, Montana, Nevada, New York, North Carolina, North Dakota, Oregon, South Dakota, Utah, Washington, and Wisconsin expressly limit the protection to matter acquired while attending in a professional capacity; and all of these, save Indiana, as well as Iowa and Nebraska, confine the privilege to information necessary to enable the witness to prescribe or act for the patient.
In New York it is provided that “a physician or surgeon may upon a trial or examination disclose any information as to the mental or physical condition of a patient who is deceased, which he acquired in attending such patient professionally, except confidential communications and such facts as would tend to disgrace the memory of the patient, when the protection has been expressly waived on such trial or examination by the personal representatives of the deceased patient, or if the validity of the last will and testament of such deceased patient is in question, by the executor or executors named in said will, or the surviving husband, widow, or any heir at law, or any of the next of kin of such deceased, or any other party in interest.”[227]