In Missouri, the calling of a physician by the patient as a witness to testify as to information acquired while attending, is a waiver.[323] But offering one physician as a witness is not a waiver of the privilege with reference to another.[324] An applicant for insurance may, by an express waiver in his application, make an efficient waiver, binding upon any one claiming under the contract of insurance.[325]
In Nevada a waiver has been implied from the testimony of the patient and her mother, where the patient was an infant seven years of age.[326] And it was said that the parents of such an infant may make the waiver.
In New York it has been held that reference to a family physician when answering questions on an application for insurance, is not a waiver;[327] nor is the presence of a third person, in aid of the patient;[328] nor is the bringing of an action for damages for an injury;[329] nor is the examination of the physician in a former trial by the opposing party;[330] but where the ban of secrecy is once removed in an action and the information once lawfully made public, at the instance of the patient, it cannot be restored, and the disclosure may then be compelled in any subsequent action;[331] it would seem, too, that a physician who becomes a witness to his patient’s last will and testament at the patient’s request is then subject to a thorough examination on all points involving the patient’s testamentary capacity.[332]
Where the patient testified herself and called an attending physician to prove her physical condition, this was not a consent to the examination of another attending physician, and it was said that the opposite party by tactics on cross-examination could not compel the patient to abandon a privilege which she refused to waive.[333] Fish, J., in delivering the opinion of the Court in the last-mentioned case, said of the operation of the statute, that it allows the patient to use the testimony of the attending physician if he thinks his evidence will benefit his case, and to object and exclude it in case he thinks it will not benefit him; he may call to his aid the testimony of any one whose views he approves and exclude that of another whose testimony might tend to controvert that given with the consent of the patient; that in this case the excluded witness was the best witness and could tell nothing else than the patient had disclosed if she had told the truth and it would relate solely to what she and the other physician had described, but that the Court could not consider whether the statute tended to promote the cause of justice, and he distinguished McKinney v. Grand Street Railroad Company,[334] on the ground that there the consent had been that the same physician should disclose what he knew, while here the waiver of the excluded physician’s testimony had been constantly withheld.
A decision which seems to be at variance with Record v. Village of Saratoga Springs is Treanor v. Manhattan Railway Company,[335] where it was said that the patient cannot promulgate and uncover his maladies and infirmities in court and keep his physician under obligations to silence, and that he cannot, to mulct another in damages, inflame a jury with a false or exaggerated story of his injuries and sufferings and preclude the physician from making a truthful statement of the case.
But where the patient testifies as to what passed between him and his physician, the physician may testify on the same subject, as a waiver is inferred from the circumstances; for the reason, that the patient, having gone into the privileged domain to get evidence on his own behalf, cannot prevent the other party from assailing such evidence by the only testimony available, and the rule is no longer applicable when the patient himself pretends to give the circumstances of the privileged interview.[336] The requirement that a physician file with a board of health a certificate of the cause of death does not abrogate the privilege in a judicial proceeding.[337]
The Evidence Excluded.
“Information.”—In Arkansas, California, Colorado, Idaho, Michigan, Minnesota, Missouri, Montana, Nevada, New York, North Carolina, North Dakota, Oregon, South Dakota, Utah, Washington, and Wisconsin the privileged matter is characterized as information.[338]
In Arkansas it seems that the information must be a confidential communication;[339] but in the other States where it has been necessary to construe the word it has received a broader interpretation.
In Michigan information is not confined to confidential communications made by the patient, but includes whatever in order to enable a physician to prescribe was disclosed to any of his senses and which in any way was brought to his knowledge for that purpose;[340] it covers a letter written to a physician,[341] and matters observed by him;[342] but it does not include information acquired by a third person; for instance, the time when a physician saw his patient may be disclosed by her mother;[343] and the fact of treatment or non-treatment is not information;[344] nor are the facts that the physician was the patient’s family physician, and that he attended him professionally; nor are statements of the dates of such attendance and the number of such visits;[345] nor the facts that the physician has been called upon to examine and prescribe for a person and that his patient had told him that she would want him to testify for her in a lawsuit.[346]