130 P. 995 | Idaho | 1913
Lead Opinion
— This action was commenced for the recovery of damages from the city of Caldwell for injuries sustained by falling through a defective sidewalk. The case went to trial and a verdict was returned in favor of the plaintiff for $850, and she appealed to this court, alleging errors committed against her in the course of the trial. The judgment was reversed and the cause was sent back for a new trial. (Jones v. City of Caldwell, 20 Ida. 5, 116 Pac. 110.) The case was again tried in the district court, and a verdict and judgment were rendered and entered in favor of the plaintiff for $2,500, and the defendant thereupon appealed.
The appellant has assigned three errors, which we will consider in the order in which they were presented.
We are satisfied that the ruling of the court was correct, and that- the witness should not have been allowed to disclose the information he acquired by reason of having performed this surgical operation. Such testimony is excluded by the provisions of the statute, sec. 5958, Rev. Codes.
The judgment should be affirmed, and it is so ordered, with costs in favor of the respondent.
Concurrence Opinion
Concurring in the Conclusion Reached.— I concur in the conclusion reached but dissent on the point that the information acquired by Dr. Stewart some time after the operation was performed on the plaintiff was privileged
The information which the doctor had and was sought to be elicited from him on his examination was not the information acquired in attending the patient which was necessary “to enable him to prescribe or act for the patient.” The information sought from the witness was information that he had obtained some time after he had prescribed for the patient and performed the operation. He had already discharged his patient when he acquired the information which was sought on the trial. ■ He did not have the information referred to until some time after he had performed the operation on the patient. If that information had been acquired in attending the patient and was necessary to enable the doctor to prescribe or act for the patient, then it would come within the provisions of said section, but he did not have the information referred to until some time after he had acted, and it was not information that' was necessary to enable him to operate on his patient, as he had operated long before he got this information.
Under the provisions of that section, what information is privileged? “Information acquired in attending the patient,” which information “was necessary to enable him to prescribe or act for the patient.” The privileged information, then, is the information which was necessary to enable Tiim to prescribe or act for the patient. As he had operated on the patient before he obtained the information referred to, it seems to me that it does not come within the letter nor within the meaning and spirit of that statute. The testimony of the doctor in the case at bar was not the same as the testimony referred to in the former decision of this case (20 Ida. 5, 116 Pac. 110), and I do not think any construction should be placed upon said statute that would make any information privileged that does not come clearly within its terms.