157 N.E. 467 | Ind. Ct. App. | 1927
Action by appellant to recover on an insurance policy issued by appellee on the life of her son, she being named as beneficiary. The insured, at the time of his death and for some time prior thereto, was a patient at the City Hospital in Indianapolis. After his death, his body was taken to the autopsy room at the hospital, where Dr. Henry R. Alburger made an autopsy to determine the cause of the boy's death. Dr. Alburger, over the objection of appellant, was permitted to testify concerning the examination made by him and to the condition of the internal organs. He testified to a state of facts sufficient to avoid the policy and prevent a recovery. The case comes to us on a reserved question of law, relating to the competency of this witness.
Dr. Alburger had never seen the insured before his death and had nothing to do with treating him while the insured was at the hospital. He was not one of the doctors on the medical staff of the hospital. He was a physician, and in the employ of the hospital when he performed the autopsy, and received compensation from the hospital for the work he did. He was director of the laboratories and pathologist of the hospital at the time. Under § 550 Burns 1926, physicians are not competent witnesses "as to matters communicated to them, as such, by patients, in the course of their professional business, or advice given in such cases."
Appellant contends that this statute rendered Dr. Alburger *337 an incompetent witness, and that the admission of his testimony is reversible error.
So far as we are able to discover, the question presented by this appeal has never been passed upon by an appellate tribunal. Generally speaking, the correct rule would seem to be that 1. where the statute renders an attending physician incompetent to testify, any information acquired by him by reason of an autopsy held on the body of a former patient is privileged, but if the information was acquired by an autopsy upon the body of a person who was not, prior to his death, a patient of the physician performing the autopsy, the information acquired by the physician is not privileged.
In Thomas v. Township of Byron (1911),
In Harrison v. Sutter St. R. Co. (1897),
In Chadwick v. Beneficial Life Ins. Co. (1919),
Carmody v. Capitol Traction Co. (1915), 43 App. (D.C.) 245, Ann. Cas. 1916D 706, was an action for negligently causing the death of plaintiff's intestate, John Carmody. After the death of the intestate, at the instance of plaintiff's counsel, an autopsy was held by two physicians, who, over plaintiff's objection, testified as witnesses for the defense as to the result of their examination into the cause of death. In holding the evidence admissible, the court said: "It is clear that the privilege is extended alone to the patient, and can only be waived by him or his legal representative. It depends wholly upon the confidential relation existing between the patient and his physician. No such relation existed between Carmody and the two surgeons who performed the autopsy. Neither of the surgeons, so far as he knew, had even seen Carmody during his lifetime. It is inconceivable that they would disclose anything at the trial in the nature of confidential information. The relation between a surgeon performing an autopsy and *341 the body of the dead person is not the relation of a physician and patient."
In Ossenkop v. State (1910),
In an action to contest a will, a physician who had attended the testator during his last illness, and who was an attesting witness to the will, was called as a witness by the proponent. On direct examination, he was asked his opinion as to the sanity of the testator, and answered that he was of sound mind when he signed the will. On cross-examination, he was permitted to testify as to the nature of testator's affliction, and as *342
to the disclosures shown by an autopsical examination. This was held proper. See In re Mullin (1895),
The above are the only cases we have been able to find, or to which our attention has been called, dealing with the admissibility of a physician's testimony as to an autopsical examination made by him.
This brings us to a consideration of the relationship between a hospital, its physicians and attendants, and patients therein. The witness in the instant case came in contact with the deceased by virtue of his employment and connection with the hospital, and it was in this employment only that he became possessed of the information to which he testified.
In Chicago, etc., R. Co. v. Walas (1922),
Stalker v. Breeze (1917),
In New York, etc., R. Co. v. Shields (1916),
In Smart v. Kansas City (1907), 208 Mo. 162, 105 S.W. 709, cited in Stalker v. Breeze, supra, it was held that assistant physicians or surgeons in a hospital to which a person had been taken for treatment were incompetent to testify, over objection, to anything connected with the treatment or as to the condition of such person while there; that it made no difference whether the person was a poor or pay patient, in a private residence, or in a hospital, or whether the person was a charity patient in a public hospital; that a patient in a hospital has the right to assume and rely upon the assumption that a physician apparently in charge of the hospital is rightfully there, and has authority to examine and prescribe for him, and that the physician will not afterwards be heard to say he was not connected with the institution and had no authority to treat the patient, for the purpose of allowing him to testify as to the condition of the patient while in the hospital. It was also held that the official record of a hospital into which had been copied the attending physician's diagnosis of a patient was privileged and not admissible in evidence over the patient's objection. Referring to the assistant physicians and surgeons at the hospital, the court said: "Under and by virtue of their appointment, contract, or by whatever arrangement they became assistant physicians in that hospital, they were constituted the physician and surgeon of each and every patient who entered that institution for treatment, and they had no legal or moral right or authority to view, *345 treat or operate upon any of them, except by virtue of that appointment or contract. Even their very presence there is traceable to and authorized by that authority and none other; and the intrusion of a physician or surgeon into an institution of the character in question, and his assumption of authority to observe and examine patients without the permission of those in charge, and by the consent of the patients, would constitute him a trespasser. Such is not tolerated by the law, and would not and should not be permitted by those in charge. The relation of physician and patient is one of contract, either express or implied, and can be created in no other way. In cases of this character the physician or surgeon in accepting such a position impliedly, at least, agrees to treat such patients as are accepted into the institution, and when he assumes to examine them, either by their express agreement or by their implied or tacit consent, which may be inferred from the act of entrance into the institution, and which will be inferred in the absence of evidence indicating a contrary intention in either event, whenever the minds of the physician and patient meet by either express or implied contract, the statute places the seal of secrecy upon all information acquired by the physician in such professional capacity."
And in discussing the admissibility of the hospital records as evidence, the court said: "The mere fact that the ordinance of the city requires such a record to be kept is no reason on earth why the statute regarding privileged communications should be violated. That record is required to be kept for the benefit of the institution and not for the benefit of outside litigants. It is not the object or purpose of the ordinance to repeal the statute in question, but even if it were, it would be null and void, because in conflict with the statute. The object of the statute is to guarantee privileged communications *346 between all patients and their physicians, and it is wholly immaterial whether they are in or out of hospitals."
In Price v. Standard Life Accident Ins. Co. (1903),
In Beave v. St. Louis Transit Co. (1908), 212 Mo. 331, 111 S.W. 52, it was held that a physician in charge of a hospital and who examined a patient therein every few days, because, as he said, he was responsible for every person who entered the hospital for treatment, and whose associates and assistant physicians and surgeons, under his supervision, treated and operated upon the patient, was incompetent to testify over an objection. The mere fact that the witness did not prescribe for the patient did not change the rule, if, through his assistants, he had charge of the patient.
The record of a hospital where an insured person was treated prior to his application for insurance is not admissible, nor can the operating or the assistant surgeon testify. Sparer v.Travellers Ins. Co. (1919),
Dr. Alburger, in describing his connection with the hospital, says he was an executive of the hospital, director of the laboratories, and the pathologist at the head of the department. While he was a practicing physician, he did not treat appellant's son and did not *347 see him prior to his death. When he first saw the body of the boy, it was on the table in the autopsy room of the hospital. In testifying concerning the circumstances under which the autopsy was held, he said: "The rule of the hospital is, if a patient should die in the City Hospital, he is brought to the morgue and placed in the autopsy room where later it (an autopsy) is held." It may be inferred from his testimony that, as a general rule, where a patient has relatives, their consent, written or verbal, is generally obtained before an autopsy is performed, but that there are circumstances when they are called on to know the cause of death that no consent is secured, and that this was one of the cases in which the hospital authorities decided to hold an autopsy for its own satisfaction without the request or consent of any one. The direction to hold an autopsy comes through the hospital office. Dr. Alburger simply received the body, was told to hold the autopsy, and went ahead and did it.
In the instant case, the boy, prior to and at the time of his death, was a patient in the hospital. After death, his body was placed on the table in the autopsical room by some one in 2. authority, and Dr. Alburger performed the autopsy as a part of his duties as head of the pathological department of the hospital. The purpose of which was to discover the cause of death. The fact that the boy was a patient at the hospital provided the opportunity for having the autopsical examination. It was the outgrowth of the relationship existing between the patient and the hospital, and it would not have been performed except for the fact of that relationship. If it had been held by the physician who treated the boy before his death, such physician would have been an incompetent witness as to any information acquired by reason of such examination. Any physician or surgeon assisting him would also have been *348 incompetent to testify, over objection, to any knowledge acquired thereby. Can a physician, after the death of his patient, through his consent or connivance, allow another physician to take the dead body of his patient, and, in the absence of friends and relatives, and without the consent of any one, hold a post mortem examination and thus give to the public the information which the physician in charge could not? Can a hospital, immediately after the death of one of its patients, discharge the physician who had attended the patient up to the time of death, and thereafter rush the dead body to the morgue and direct the physician at the head of the pathological department to perform an autopsy, and thus evade the statute which sealed the lips of the first physician? We think these questions should be answered in the negative, and that a physician under such circumstances steps into the shoes of the attending physician, and must be treated as if he were the assistant of the attending physician, holding the autopsy at the direction of the latter, and that the information acquired by him through the autopsy is privileged. A physician should not be privileged to authorize or permit another physician to hold an autopsy on one of his patients and thus destroy the privileged character of the information thus acquired. Neither should a hospital, after the death of one of its patients, authorize or permit a physician other than the attending physician to hold an autopsy and destroy the privileged character of the information thus acquired. In order to protect those who are so unfortunate as to become patients in a public hospital, as in the instant case, from having their bodies violated after death in order to discover the cause of death and thus qualify a physician to appear in court as a witness and disclose the cause of death, we are constrained to hold the court erred in allowing Dr. Alburger to testify as to the information he *349 acquired through the autopsy. The doctor had no more right to make this examination, and to disclose the information thus received, than he would have had if he had gone into the sick room prior to the boy's death and made an examination to ascertain the cause of the boy's illness and to then go into court and testify as to the information thus acquired. He should be treated as an assistant of the physician in charge prior to the boy's death.
Judgment reversed, with directions to grant a new trial, and for further proceedings consistent with this opinion.
Dausman, J., absent.