In Montana it has been said that when the patient consents no one else can object to the reception of the physician’s testimony.[302]
In New York it has been said that the benefits of the law are to be dispensed alike to those familiar with and those ignorant of its existence and applicability, and it is therefore no reason to refuse its enforcement, that the patient did not know that his communication was privileged.[303]
But, as in other cases of the receipt of improper evidence, it would seem that the objection should be made at the time it is offered, and if the objection is not then made, it will not avail to raise it later or on appeal.[304] It should not be prematurely made.[305] In New York where in pursuance of a special feature of practice in probate proceedings,[306] certain witnesses are regarded as the surrogate’s witnesses though produced at the instance of the contestant, and the contestant, after giving notice that the evidence of physicians as such witnesses was material, refused to examine them, and the surrogate required the proponent to suggest a line of examination, it was held that it did not lie with the contestant to object to the physicians’ testimony as privileged, because she had lost her right to object by giving notice that the evidence of those witnesses on these points was material.[307]
Objection cannot be raised in the progress of an examination after the forbidden testimony has been in part received without objection; for that would unjustly enable a party to open the door and get in all he desired and then to close it to the disadvantage of his adversary; when the door is once properly opened the examination may be continued until it is complete, despite the objection of the party at whose instance it was begun.[308]
In Indiana, where there was no objection, it was held that the evidence should not be withdrawn from the consideration of the jury or its weight diminished by comments on its value as matter of law.[309]
But when such evidence has already been admitted in the face of objection, it is not necessary for the party to object again, as nothing is waived by conforming with a rule already laid down.[310] Where it is apparent that no harm is done to the objecting party by an improper ruling on the receipt of privileged communications, no weight will be given to an exception to such ruling.[311]
What Constitutes a Waiver of the Privilege.—The statutory provisions as to what constitutes a waiver have been set forth above.[312] In California it has been held that cross-examination of the physician by the patient, calling for privileged matter, is a waiver of privilege.[313] In Indiana it has been held that consent to disclosure cannot be inferred from the patient’s simply giving the name of his family physician in applying for a policy of insurance on his life, and that a waiver in such an application should be evidenced by a stipulation too plain to be misunderstood.[314] And a physician’s statements of the cause of his patient’s death, furnished to an insurance company, in pursuance of a stipulation of a policy that satisfactory proof of death shall be submitted to the company, are not rendered admissible by that stipulation.[315]
It has also been held that consent to the evidence of one physician is no consent that another physician may divulge confidential communications;[316] and that the physician cannot testify that he found no evidence of injury on the examination of his patient, in order to contradict her;[317] the patient had already testified as to her condition and what the physician had done, but not as to anything said to her by her physician; she had expressly declined to testify concerning communications except as to his prescription for her injury, and without asking him to disprove her assertions the trial Court permitted him to say that he had found no evidence of injury; this was held to be error. It has also been held that the taking of a physician’s deposition and filing it, for the purpose of breaking the force of his testimony in a deposition taken by the opposite party, is no consent in itself to the reading of the other party’s deposition.[318] But when, in an action against a physician for malpractice, the patient testifies as to the manner of treatment, the physician is then at liberty to introduce the testimony of himself or another physician as to the facts thus put in issue by the patient.[319]
In Iowa it has been held that the testimony of a patient regarding the condition of his health is not a waiver of privilege, so as to allow his opponent to introduce the testimony of his physician to contradict him.[320]
In Michigan a physician has been allowed to contradict his patient as to the time when her trouble commenced, but on the ground that it had not been shown that the information was necessary to enable him to prescribe.[321] But it has been held that waiver as to one physician is not waiver as to another regarding a different time.[322]