As stated, in some of the above-mentioned States, the party interested may waive the privilege, in which case the communication may be disclosed ([229]). But in New York it is expressly enacted that “no person duly authorized to practise physic, or surgery, shall be allowed to disclose any information which he may have acquired in attending any |95| patient in a professional character, and which information was necessary to enable him to prescribe for such patient as a physician, or to do any act for him as a surgeon” ([230]).
Yet, even there, the statute will not be construed so as to shield a person charged with a crime, instead of being a protection to the victim, the patient ([231]).
The seal upon the physicians lips is not taken away by the patient’s death ([232]).
Necessarily all communications to be privileged must be of a lawful character, and not against morality or public policy; hence a consultation as to the means of procuring an abortion on another is not privileged; nor, by parity of reason, would any similar conference which was held for the purpose of devising a crime or evading its consequences ([233]).
It must appear not only that the information was acquired during professional attendance, but was such as was necessary to enable the physician to prescribe. It is for the party objecting to shew that the information sought to be obtained is within the statutory exclusion. “It will not do to extend the rule of exclusion so far as to embarrass the administration of justice. It is not even all information which comes within the letter of the statute which is to be excluded. The exclusion is aimed at confidential communications of a patient to his physician, and also such information as a physician may acquire of secret ailments by an examination of the person of his patient. The policy of the statute is to enable a patient, without danger of exposure, to disclose to his physician all |96| information necessary for his treatment. Its purpose is to invite confidence and to prevent a breach thereof. Suppose a patient has a fever, or a fractured leg or skull, or is a raving maniac, and these ailments are obvious to all about him, may not the physician who is called to attend him testify to these matters?” “Before information sought to be obtained from physicians, witnesses, can be excluded the court must know somewhat of the circumstances under which it was acquired, and must be able to see that it is within both the language and the policy of the law” ([234]).
A report of the medical officer of an insurance company on the health of a party proposing to insure his life is not privileged from production; nor is the report of a surgeon of a railway company, as to the injuries sustained by a passenger in an accident, unless such a report has been obtained with a view to impending litigation ([235]).
Representations made by a sick person of the nature and effects of the malady under which he is suffering are receivable as original evidence, whether made to a physician or to any other; though, if made to a physician, they are entitled to greater weight than if made to a man incapable of forming a correct judgment respecting the accuracy of the statements, from unacquaintance with the symptoms of diseases ([236]). When the bodily or mental feelings of a party are to be proved, his exclamations or expressions indicating present pain or malady are competent evidence ([237]); and |97| the complaints and statements of the injured party, if made at the very time of the occurrence, are admissible as res gestæ, not only as to the bodily suffering, but as to the circumstances of the occurrence; and the time in question is not the time of injury, but the time when it is material to prove a condition of bodily or mental suffering, and that may be material for weeks, and perhaps months, after an injury has been inflicted. The statements are admissible even though made after the commencement of an action, though this may be a circumstance to detract from the weight of the evidence of a physician, so far as it was founded on the statements ([238]). But statements or declarations of a sick or injured person, referring to his state and condition at a time past, and not furnishing evidence of a present existing malady, are to be carefully excluded, whether made to an expert or a non-expert ([239]), and statements in writing by patients to a medical man, describing the symptoms of the illness upon which the physician has advised the patient, are also inadmissible in evidence ([240]). It has been said in Illinois, that as a physician must necessarily, in forming his opinion, be, to some extent, guided by what the sick person may have told him in detailing his pains and sufferings, not only the opinion of the expert, founded in part upon such data, is receivable in evidence, but that he may state what the patient said in describing his bodily condition, if said under circumstances which free it from all suspicions of being spoken with reference to future litigation and give it the character of res gestae ([241]). |98|
On the other hand, in Massachusetts, in an action for personal injuries, a surgeon who had attended plaintiff was held competent to testify as to plaintiff’s condition from what he saw, but not from anything the patient told him ([242]). A physician testified that the plaintiff stated she had received a blow in the stomach. The Court said that it would clearly have been competent for the physician, after having testified to the plaintiff’s condition and to the complaints and symptoms of pain and sufferings stated by her, to have given his opinion that they were such as might have been expected to follow the infliction of a severe blow. But it was not competent for the physician to testify to her statement that she had received a blow in her stomach ([243]). And in Tennessee, the statement made by a man when his wounds were being examined, as to who made them, or as to the instrument with which they were inflicted, was deemed inadmissible ([244]).
Memoranda, although not legal instruments in the proper sense of the term, have been considered as an inferior class of records, and as such entitled to some standing in courts. Such minutes of past facts may be used by experts while under examination, but only to refresh their memory, and not to take its place. For this purpose they may use written entries in note books, or even copies of them, provided always they can swear to the truth of the facts as there stated. Yet, if they can not from recollection speak to the fact any farther than as finding it stated in a written entry, their testimony will amount to nothing. It is not necessary that the writing should have been made by the expert himself, nor even that it should be an original |99| writing, provided, after inspecting it, he can testify to the facts from his own recollection ([245]).
The English and American authorities agree that medical, or other scientific books, are not competent evidence in courts of law; they cannot be put in evidence, although the medical witnesses state that such books are works of authority in medicine. Tindal, C.J., thought that witnesses might be asked whether in the course of their reading they had found such-and-such a rule laid down; they might be asked how far their opinion was founded on books, and might refer to such books; they might be asked their judgment on the point, and the grounds of it, which may be in some degree founded on these books, as a part of their general knowledge, but the book itself could not be read. And as late as 1875, Mr. Justice Brett refused to allow Taylor’s Medical Jurisprudence to be read to the jury, saying: “That is no evidence in a court of justice. It is a mere statement by a medical man of hearsay facts of cases at which he was, in all probability, not present. I cannot allow it to be read.” And the refusal seems to be the rule in England. And Redfield, C.J., says, that when objected to, these books have not generally been allowed to be read in the United States, either to the Court or jury. And a very recent writer says, “The result of the cases on this subject shews clearly that the very decided weight of authority is against the admissibility in evidence of standard medical treatises.” Such is the rule in England, Ontario, Indiana, Maine, Maryland, Massachusetts, Michigan, North Carolina, Rhode Island and Wisconsin, supported by dicta in California and New Hampshire, and opposed by decisions in Alabama and Iowa ([246]). |100|