In Missouri the statute protects information received from the patient; but this is not confined to oral communications, and includes knowledge gained by inspection of the patient’s person.[347] In Lunz v. Massachusetts Mutual Life Insurance Company protection was said not to extend to information of this sort apparent on casual inspection, which any one might make, nor to symptoms which are obvious before the patient submits himself to any examination, such as an inflamed face, a bloodshot eye, alcoholic fumes, or delirium; nor to facts so superficial that in regard to them no confidence could have been reposed. But this distinction between hidden and patent facts is disapproved in Kling v. City of Kansas,[348] and the statement is made that the law does not rest on the confidence imposed. Knowledge or communications concerning the cause of a patient’s condition and the extent of his injuries have also been held to be included in the term information, because the disclosure of these matters involved the indirect disclosure of the condition;[349] but it was said that the physician may testify as to knowledge acquired independent of communications from the patient and of examination or inspection made by the witness for the purpose of treatment.[350] As divulging privileged information, a physician has not been allowed to answer what his patient’s hurts were, why he left a hospital, or whether he required longer treatment;[351] and it has also been held that a physician cannot give his opinion as to the mental condition of his patient based upon privileged knowledge.[352]
In New York information comprehends all knowledge acquired by the physician by communication, observation, or inspection;[353] it has been said to extend to all facts which necessarily come to the knowledge of the physician in a given professional case;[354] and it includes as well the opinion of the physician based upon his knowledge as the knowledge itself.[355]
The physician cannot disclose the nature of his patient’s disease, whether he learned it by observation or examination or from what his patient told him;[356] nor can he testify as to what he told his patient.[357] In Edington v. Ætna Life insurance Company[358] it was said by Judge Earl that the statute was aimed at confidential communications and secret ailments, and that it did not extend to matters superficially apparent, such as a fever, a fractured leg or skull, or raving mania apparent to all;[359] but this view was disapproved expressly in the later case of Renihan v. Dennin.[360]
The privileged information has been said to include knowledge acquired through the statements of others surrounding the patient.[361] But it would seem that the fact that a third person was present during a physician’s visit may be shown by the physician, as well as what passed between the patient and the third person, if it was such information as a layman would have gathered.[362] The information from the third person regarding the patient is protected even though the patient be absent;[363] but not if the third person does not employ the physician, and the information thus acquired is not necessary to enable the physician to act in a professional capacity.[364] It is suggested in one case, but not determined, that it would be improper for a physician to state the value of the services of a nurse in attendance upon his patient, as that would involve a consideration of the condition of his patient;[365] but it has been held that a physician can testify to the fact of a nurse’s services.[366]
But it is information regarding the patient that is privileged, and therefore a physician may disclose what his patient told him about another, even though the subject of inquiry be the attitude of the patient toward the other;[367] and likewise the physician may disclose what he told his patient about a third person;[368] so also the physician may testify as to family events in no way connected with physical complaints.[369] It has been held, too, that admissions made by a patient to his physician, tending to show contributory negligence on the part of the patient, at a time when the communication could not well have been made to enable the physician to prescribe, namely, on the physician’s third and last visit, may be proven by the physician.[370]
The physician may properly testify that he did attend as physician,[371] and that the patient was sick, and he can state when and how often he attended him,[372] and whether his knowledge was acquired while in professional attendance,[373] but it is open to the Court to determine from the evidence whether it was so acquired.[374]
“Matter Committed.”—In Indiana the protection covers matter committed. It would seem that the use of the word committed implies confidence and that the protected matter is only confidential communications; but an earlier statute in that State applied to “matters confided,” and it was held to cover matters learned by observation or examination, or by communication from the patient, whether learned under an injunction of secrecy, express or implied, or not;[375] and it has been held that the present law forbids the disclosure of matters learned in a sick-room, no matter how the knowledge may have been acquired.[376]
“Confidential Communications.”—The laws of Iowa and Nebraska protect confidential communications properly intrusted. The construction put upon the word confided in Indiana has been shown. In Iowa it has been said that a confidential inquiry for advice to facilitate the commission of a crime or the infraction of law, is not properly intrusted and is not privileged;[377] but where the advice is sought for a purpose which may or may not be lawful, the presumption is that it is lawful, and the communication is privileged.[378] It has been said that whether or not a physician treated a person for a particular disease, is not a confidential communication.[379]
The word confidential is not narrowly construed, for a physician has been prevented from disclosing whether his patient said that a car was in motion when he was injured, because the injury would be more severe if in motion;[380] and the fact that the physician’s partner was present does not remove the seal of secrecy, or permit the partner to testify.[381]