Gartside v. Connecticut Mutual Life Insurance
76 Mo. 446
Mo.
1882
Check Treatment
Norton, J.

The only question presented on said appeal for our determination is, whether a physician, who is called to visit a patient, when introduced as a witness, can be required or allowed to disclоse any information acquired by him from such patient, either orally, by signs or by observation of the patient after he has submitted himself for examination, which information was necessary to enable him to prescribe for such ‍‌‌‌​‌​​‌​‌‌​‌​​‌​‌​‌‌​‌‌‌​‌‌​‌​‌‌‌​‌​​​‌‌​‌‌​‌​‌‍patient. An affirmative answer reverses, and a negative answer affirms the judgment, and the solution of the question is dependent upon a construction of the fifth subdivision of section 4017, Revised Stаtutes, which declares that the following persons shall be incompetent to testify, viz: * * “A physician or surgeon, concerning any information which he may have acquired from any patient while attending him in a *450professional character, and which information was necеssary to enable him to prescribe for such patient as a physician, or do any act for him as a surgeon.”

It is contended upоn the one hand that the above statute was only designed and intended to forbid the disclosure of such information as a physician while attending a patient acquires orally from the patient. It is contended, on the other hand, that the statute forbids, not only information aсquired through the ear by oral communication, but also all information ‍‌‌‌​‌​​‌​‌‌​‌​​‌​‌​‌‌​‌‌‌​‌‌​‌​‌‌‌​‌​​​‌‌​‌‌​‌​‌‍acquired through the eye by observation or examination of the patient after he has submitted himself to the care of the physician for examination and treatment. In settling this contention, and in determining the proper construction to be placed on said. section 4017, we feel authorized to look at the adjudications in оther states haying similar statutes.

A kindred statute has been in existence in New York since 1828, and is as follows, viz: “No person authorized to practice physic and surgery shall be allowed to disclose any information which he may have acquired in attending any patient in a prоfessional character, and which information was necessary to enable him to prescribe for such patient as physician, or do any act for him as a surgeon.” This statute, has been repeatedly before the courts of that .state for construction, аnd in a long line of decisions, beginning in 1834 and extending down to 1880, it has been held that the object of the statute was to impress secrecy upоn the knowledge acquired by a physician in the. sick chamber, whether acquired by conversations had with the patient, or as the result of observation or examination of such patient, and which information was necessary to enable him to prescribe for the рatient. Johnson v. Johnson, 4 Paige 460; Hanford v. Hanford, 3 Edw. Ch. 468; People v. Stout, 3 Parker Cr. 670; 45 N. Y. 125; 5 Hun 1; Edington v. Ins. Co., 67 N. Y. 185; Dilleber v. Ins. Co., 69 N. Y. 256; s. c., 25 Am. Rep. 182; Edington v. Ins. Co., 13 Hun *451543; Grattan v. Mutual Life Ins Co., 24 Hun 43; Cahen v. Ins. Co., 69 N. Y. 300.

In Michigan the statute upon this subject is in the exact words of the New York statute, and the same construction ‍‌‌‌​‌​​‌​‌‌​‌​​‌​‌​‌‌​‌‌‌​‌‌​‌​‌‌‌​‌​​​‌‌​‌‌​‌​‌‍has been put-upоn it by the courts of that state, Judge Cooley, who delivered the opinion in the case of Briggs v. Briggs, 20 Mich. 34, observing: “Nor do we think the physician’s evidenсe admissible. He had no knowledge upon the subject, except what he obtained in the course of his professional employment, and the case appears to be directly within the statute. * * We do not understand the information here referred to, to be сonfined to communications made by the patient to the physician, but regard it as protecting with the veil of privilege w'hatever, in оrder to enable the physician to prescribe, was disclosed to any of his senses, and which in any way was brought to his knowledge for that purpose.”

It is plausibly argued by counsel that, inasmuch as our statute differs from the New York and Michigan statutes in this, that the words “ from the patient ” insеrted in our statute after the word “acquired,” are not to be found in the New York statute, therefore the decisions above referred to are not authoritative. While it is true that the phraseology of our statute is different in the above respect from the New York stаtute, it is also true that the object intended to be accomplished by both is the same, and the meaning of both is the same when ‍‌‌‌​‌​​‌​‌‌​‌​​‌​‌​‌‌​‌‌‌​‌‌​‌​‌‌‌​‌​​​‌‌​‌‌​‌​‌‍construеd with reference to the object intended to be brought about, viz : casting “ the veil of privilege ” or secrecy over information аcquired by a physician while professionally engaged in the sick chamber, and necessary to enable him to prescribe. Information acquired by a physician from inspection, examination or observation of the person of the patient, after he hаs submitted himself to such examination, may as appropriately be said, to be acquired from the patient as if the same information had been orally communicated by the patient.

*452The construction contended for by defendant’s counsel, that by tbe statute a physician is forbidden to disclose only such information as may have been communicated to him orally by his.patient, would, in our opinion, nullify the law. To hold that, while under the statute a physician would be forbidden from disclosing a statement made to him by his patient that he was suffering from syрhilis; and to allow him to state as the result of his observation and examination of the patient that he was diseased with syphilis would be to mаke the statute inconsistent with itself. It is doubtless true that a physician learns more of the condition of a patient from his own diagnosis of the case than from what is communicated by the ’words of the patient; and to say that while the mouth of a physician is sealed as to thе information acquired orally from his patient, it is opened wide as to information acquired from a source upon which he must rely, viz: his оwn diagnosis of the case, would he to restrict the operation of the statute to narrower limits than was ever intended by the legislature and virtually to overthrow it.

It follows from what has been said that the circuit court erred in permitting Drs. Gregory and Bauduy, two physicians, to give in evidеnce the information acquired by them while attending Gartside, their patient, professionally, although such information was acquired not from ‍‌‌‌​‌​​‌​‌‌​‌​​‌​‌​‌‌​‌‌‌​‌‌​‌​‌‌‌​‌​​​‌‌​‌‌​‌​‌‍what the patient said but from observation and examination. The same error was committed in reference tc the admission of thе evidence of Dr., Ilodgen, except as to im formation acquired by him from observing Gartside on the street anterior to his employment as a physician.

The judgment of the St. Louis court of appeals reversing the judgment of the circuit court and remanding the cause, is affirmed,

with the concurrence of all the judges.*