[204] Hitchcock v. Burgett, 38 Mich., 501.
[205] See U. P. R. R. Co. v. Botsford, 141 U. S., 250; McQuiggan v. D., L. & W. R. R. Co., 129 N. Y., 50; Roberts v. O. & L. C. R. Co., 29 Hun, 154, and cases cited.
[206] Olmstead v. Gere, 100 Pa. St., 127; Carpenter v. Blake, supra.
[207] Greenleaf Ev., s. 236; Taylor Ev., s. 908; Bouvier’s Law Dictionary, p. 363; Am. and Eng. Enc. of Law, vol. 19, p. 122; Code Civ. Pro. Cal., s. 1,881; Mills’ Ann. Stats. of Col., 1891, s. 4,824; Rev. Stats. Idaho, 1887, s. 5,958; Gen. Stats. Minn., 1891, s. 5,094; Comp. Stats. Mont., 1887, s. 650; Gen. Laws Ore., 1892, s. 712; Comp. Laws Utah, 1888, s. 3,877.
[208] Taylor Ev., s. 911; Stephen, Dig. of Ev., art. 115; Greenleaf Ev., s. 237.
[209] The successive efforts made to extend protection by judicial ruling to communications between physician and patient will appear from a consideration of the cases that are usually cited as authority for the English rule: Annesley v. Earl of Anglesea (1743), 18 How. St. Tr., 1,139; Duchess of Kingston’s case (1776), 20 How. St. Tr., 355 (cf. p. 572, p. 585, p. 586, p. 613); Wilson v. Rastall (1791)., 4 Term R. (Durnford & East), 753; Rex v. Gibbons (1823), 1 C. & P., 97; Broad v. Pitt (1828), 3 C. & P., 518; Greenough v. Gaskell (1832), 1 My. & K., 98. See also Wheeler v. Le Marchant, 50 L. J. Ch., 795 (1880).
1 Phillips Ev., p. 136; Starkie Ev., p. 40; Wharton Ev., s. 606; Greenleaf Ev., secs. 248, 237, 239; Taylor Ev., s. 916; Stephen, Dig. of Ev., art. 115; Rogers’ Expert Testimony, s. 45; Reynolds’ Theory of Evidence, s. 86.
It is to be noted that none of the cases which are cited as authority for the common-law rule as usually stated are really precedents to that extent. The cases of the Duchess of Kingston (supra); Lord William Russel (9 How. St. Tr., 602); Dr. Ratcliff (9 How. St. Tr., 582); Earl Ferrers (19 How. St. Tr., 886), and Rex v. Gibbons (supra), were all criminal prosecutions; and in Annesley v. Anglesea, Wilson v. Rastall, Broad v. Pitt, and Greenough v. Gaskell (supra), which were civil causes, the question of the privilege of a medical man was not really in dispute. It is well settled that communications between attorney and client are privileged, and yet Judge Pitt Taylor expresses some doubt whether the protection cannot be removed without the client’s consent in cases where the interests of criminal justice require the production of the evidence (Taylor Ev., s. 929). This intimation of a distinction between criminal and civil actions, even in the case of attorneys, suggests the possibility of a difference between those two classes of actions in the case of medical men. The cases cited establish authoritatively that in criminal prosecutions, at common law, confidential communications between medical man and patient are not privileged; but in civil causes, the opinions of the eminent judges seem to be obiter dicta. It is, however, established by other decisions that mere confidential relations do not prevent the disclosure of communications. (For the case of bankers, see Loyd v. Freshfield, 2 C. & P., 325; managers, Anderson v. British Bank of Columbia. 45 L. J. Ch., 449; clerks, Lee v. Burrell, 3 Camp., 337; Webb v. Smith, 1 C. & P., 337; stewards, Vaillant v. Dodemead, 2 Atk., 524; Earl of Falmouth v. Moss, 11 Price, 455; Pursuivant of Herald’s College, Slade v. Tucker, 49 L. J. Ch., 644.)
The opinions of so many eminent men, though strictly speaking obiter dicta, together with the uniform statements of text-writers based upon them, leave no room for reasonable doubt that independent of statute, in civil as well as criminal causes, communications between medical adviser and patient are not entitled to protection from disclosure in evidence.
[210] See Duchess of Kingston’s case (supra, p. 91, note 3) (cf. ib., pp. 572, 585, 586, 613).