Who may Waive.—Those States in which the law provides for a waiver have been enumerated;[278] in others the courts have determined that the privilege of waiving is implied in the reason for the law. In Indiana it has been held that although the statute contains in terms an absolute prohibition, it creates no absolute incompetency and the privilege may be waived by the person for whose benefit it is made or his legal representative.[279] Under the Michigan law it was claimed that the physician is forbidden to reveal confidences even though he have his patient’s consent, but it has been held that the law only creates a privilege on the same footing with other privileged communications, which the public has no interest in suppressing when there is no desire for suppression on the part of the person concerned.[280] In Missouri too the patient may waive the privilege.[281]
The protection vouchsafed by the law is designed for the benefit of the patient, and therefore the physician himself cannot waive it.[282] The patient can disclose his own physical condition if he so desires.[283]
But the physician cannot refuse to testify if the patient waives the privilege.[284]
The patient can waive the privilege during his life.[285]
As it existed prior to 1891 the New York law provided that the prohibition should operate unless it was expressly waived upon the trial or examination by the patient.[286] This was interpreted to mean that the patient himself was the only person who could make a waiver; and that, therefore, the possibility of waiver ceased with the death of the patient, while the privilege of secrecy continued unabated, so that those claiming under the deceased patient could not waive the privilege, nor insist upon the testimony of the physician, even though their interests were in jeopardy on account of his silence.[287] It seems, however, that a patient can during his lifetime waive the privilege, the waiver to take effect after his death.[288] The express waiver required by the statute may be given by the patient’s attorney, because of the nature of the attorney’s agency in conducting an action for the patient.[289]
None of the other statutes are in the exact terms of the New York statute, but those of California, Colorado, Idaho, Minnesota, Montana, Nevada, North Dakota, Ohio, Oregon, South Dakota, Utah, Washington, and Wyoming provide that the testimony shall not be given unless the patient consent; in Iowa, the waiver provided for is that of the person in whose favor the prohibition is made; and in Nebraska, of the party in whose favor the provision is enacted.
In Indiana, the privilege extends beyond the death of the patient, and it may be waived by the party who may be said to stand in the place of the deceased and whose interests may be affected by the disclosure.[290]
In Michigan, what the patient may do in his lifetime, those who represent him after his death may also do for the protection of the interests which they claim under him.[291] In Missouri the representatives of the patient may waive;[292] and where the dispute is between devisees and heirs at law all claiming under a deceased patient, either the devisees or heirs may call the attending physician of the testator as a witness regarding information acquired by him in his professional attendance.[293] In Nevada it has been said that the parents of a seven-year-old infant, may waive for the infant.[294]
Objections to the Admission of Privileged Communications; When and by Whom Made.—Having considered who can waive the privilege, it is material to discuss also the question who may insist upon the enforcement of the law. If the protection were only enforced on the claim of privilege by the patient, the very object of the statutes would be defeated in the large majority of instances because of the absence of the patient and every one interested in his behalf to assert his right. It rests, therefore, with any party to raise the objection and assert the prohibition. But it seems that the physician himself, unless a party, cannot make the objection.[295] It seems to have been thought in some of the cases that the right to insist upon the enforcement of the law is coupled with an interest derived from the patient. This idea started from the language used in the early cases enforcing the privilege at the instance of those claiming under deceased patients;[296] and it led to some confusion where the right of representatives to waive the privilege was denied; but it seems to be clear that the right to object differs from the right to waive in that the latter is necessarily and logically dependent upon the relation between the patient and his representative, while the former is obviously suggested as the best method of enforcing the law. In Indiana it has been said that the statute gives to the representative of a deceased patient the right to object;[297] but that this is not by reason of the relationship appears from another case in the same State, where on an application for a new trial the Court voluntarily refused to grant one for newly discovered evidence disclosed to it by a physician’s affidavit, on the ground that if the patient should object in the new trial the evidence would be excluded.[298] In this State it has been held that the widow of the patient cannot object to the disclosure, if his administrator with the will annexed waives the privilege.[299]
In Michigan it has been said that the physician cannot avail himself of the statute for his own benefit; but that was in a case where the communication was not really of the privileged class.[300] In New York, in proceedings to which a physician was a party an examination of his books of account before trial has been refused on the ground of privilege, and for the same reason a motion to direct a physician to turn his books of account over to a receiver has been denied.[301]