“Communications.”—In Ohio and Wyoming communications are privileged; and in Kansas and Oklahoma communications with reference to a physical or supposed physical disease and any knowledge obtained by a personal examination of a patient. It does not appear whether a narrower construction would be given to the term communications than to the term information; but it would seem not, if a person deprived of speech is to be protected,[382] or if the term communications is not to be construed as meaning oral communications.
“From the Patient; by the Patient.”—The former qualifying terms are used in the statutes of Arkansas, Indian Territory, and Missouri; the latter in the statutes of Kansas and Oklahoma. The liberal interpretation put upon this term in the Missouri law has already been shown.[383] The law of the Indian Territory is adopted from Arkansas.[384] The statute is strictly construed in Arkansas,[385] but this term does not seem to have received interpretation.
“Advice.”—The laws of Indiana, Ohio, and Wyoming expressly cover the physician’s advice. In New York it is incompetent for the physician to disclose what he told his patient;[386] but advice to a patient concerning a third person is not privileged.[387]
The Relation of Physician and Patient.—Under each of the statutes, the relation of physician and patient must have existed at the time the information was acquired. In those cases where the relation is established by contract and is recognized by both physician and patient as existing, no difficulty arises in determining that it does exist. It is in those cases where some one of these elements is lacking that the difficulties are met. In California it has been held that the relation exists where a physician attends and prescribes for a person, notwithstanding he was employed by another, who seeks to disclose the evidence.[388] In Michigan, where the physician was employed by direction of the prosecuting attorney to examine the defendant in jail, and so notified the defendant at the outset of the examination, and he submitted voluntarily to a personal examination, and there was no intention to prescribe or to act as the defendant’s physician, it was held that the relation did not exist, and that the physician could testify as to the defendant’s physical condition.[389]
In one New York case it has been said that the relation is one of contract, and that the test is whether the physician would be chargeable with malpractice or negligence for failure to advise or prescribe in case the alleged patient were in urgent need of it at the time.[390] But the decisions of the Court of Appeals extend the privilege to cases where this test would lead to a different conclusion.[391]
Where the physician to a county jail was called in to attend a prisoner and examined him, though there was no prescription at the time, but it appeared that the doctor told the prisoner what he should prescribe, and subsequently two physicians came to see the prisoner at the instance of the coroner and examined him as they would have examined one of their patients, though they did not prescribe and had no conversation about a prescription, it was held that the prisoner had, under the circumstances, reason to suppose that the relation of physician and patient did exist between him and all three of the physicians, and that their testimony as to what they learned on such visits should have been excluded; and the rule is thus stated: whenever the patient has reason to suppose that the relation exists and does in fact and truth so suppose, in a case where the physician attends under circumstances calculated to induce the opinion that his visit is of a professional nature, and the visit is so regarded and acted upon by the person attended, the relation of physician and patient contemplated by the statute may fairly be said to exist.[392]
But the fact that it is the duty of a physician to prescribe for a person in case of need, does not constitute the relation, though the position of the physician gives him the opportunity to observe such person; so, therefore, a jail physician was not precluded from testifying as to what he had observed of a prisoner, where it did not appear that he had ever attended the latter in a professional capacity or had ever been called on to attend him.[393]
It would seem, however, that where it is the duty of a physician to attend a person in a professional capacity or to acquire knowledge concerning him in such capacity, he cannot disclose information actually acquired in the performance of his duty. It has been said that a medical attendant at an insane asylum cannot testify as to the mental condition of an inmate;[394] and that a physician employed in a hospital to notice and enter in its records the arrival and condition of the patients coming in, cannot testify as to information so acquired.[395]
It is immaterial that another person employs the physician to examine the patient, and to report to the employer, and that the person examined does not appear to desire any knowledge as to his condition; if the examination is made as a professional act, the relation of physician and patient is established between the physician and the person examined, even though it be the only interview.[396]
And in a case where the public prosecutor sent a physician to a person for the purpose of making a professional examination, so as to obtain evidence against another person charged with crime, and the person examined accepted the services of the physician in a professional character, it was held that he could not testify as to the results of his examination.[397]