3 Park. Cr. 670 | Court Of Oyer And Terminer New York | 1858
In order to arrive at a correct determination of the question before the court, a brief review of the facts upon which it arises will be necessary.
Early on the morning of the twentieth of December last, the body of Charles W. Littles was found in the Genesee river, just below the high falls. The examination of the spot, which was soon thereafter made, induced the opinion that Mr. Littles had been killed during the preceding night, on the summit of the high bank above, and that his body had been thrown over the precipice and dragged to the river. There were some circumstances also indicating that the perpetrators of the crime had themselves been precipitated over the bank, either in the struggle or in their efforts to remove the dead body.
The prisoner was arrested during the forenoon of the same day, and taken to the police office, on suspicion of being one of the persons connected with the homicide. His arm was in a sling, and scratches and contusions were discernible on his face. He was committed to the county jail. The following morning his condition was such as to require medical aid, and accordingly Dr. Langworthy, the physician to the jail, was called in. The doctor visited him between ten and eleven o’clock. It does not appear that the prisoner knew Dr. Langworthy or his official character. The doctor thinks that he understood, however, that he was a physician. There was no prescription made at the time, but the doctor says he told him what he was going to prescribe, and thinks there was something said about his being his physician in future.
Shortly after this visit, and before noon, two gentlemen, whom the prisoner had seen the day before at the police office engaged in the post mortem examination of Littles’ body, viz., Drs. Montgomery and Avery, appeared at the prisoner’s cell and stated that they had been requested by the coroner to examine him and see what injuries there were about his person. Dr. Avery says he presumes they informed him that they were
Upon this state of facts, Dr. Avery, the witness on the stand, is asked to describe the condition of the prisoner, as ascertained at that interview.
The counsel for the prisoner objects to the reception of any testimony under this question, on two grounds:
First. That this examination was involuntary and compulsory on the part of the prisoner; and,
Second. That the admission of the evidence would be a violation of the statutory prohibition against a disclosure by physicians of information derived in the course of professional treatment of patients.
It cannot be necessary to discuss the question suggested by the counsel for the prisoner under the first branch of the
The other branch of the objection deserves more consideration.
At common law the information derived by physicians in their professional relations with patients was not privileged from disclosure. The only privileged communications in this respect were those between attorney and client, and the general rule was adopted, that those communications passing between • them during the professional relation were protected from disclosure. The reason of this doctrine of the courts was the necessity on the part of the public of intrusting business to the legal profession, and the insecurity of so doing if the information thereby imparted were liable to divulgement.
The restriction of this doctrine to the legal profession was, at an early day, regretted. In Wilson v. Rastall (4 Term R., 756), Mr. Justice Buller said “there were cases in which it was much to be lamented that the law of privilege was not extended to those in which medical persons were obliged to disclose the information which they acquired by attending in their professional character.”
Upon the revision of the Statutes of this state in 1828, the revisors noticed this omission in the common law, and introduced a section amendatory of the defect, which is as follows:
“ No person duly authorized to practice physic and surgery shall be allowed to disclose any information which he may have acquired in attending any patient in a professional*674 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.” (2 R. S., 327, § 93, 2d ed.)
The revisors’ note to this section indicates clearly, in accordance with the manifest meaning of the provision, that the design was to create a privilege in the case of this medical profession analogous and commensurate with that which had always existed in the case of the legal profession. The note is as follows: “The ground on which communications to. counsel are privileged is, the supposed necessity of a full knowledge of the facts to advise correctly, and to prepare for the proper defence or prosecution of a suit; but surely the necessity of consulting a medical adviser, when life itself may be in jeopardy, is still stronger, and unless such consultations are privileged, men will be incidentally punished by being obliged to suffer the consequences of injuries without relief from the medical art, and without conviction of any offence. Besides, in such cases, during the struggle between legal duty on the one hand and professional honor on the other, the latter, aided by a strong sense of the injustice and inhumanity of the rule, will in most cases furnish a temptation to the perversion or concealment of truth too strong for human resistance. In every view that can be taken of the policy, justice or humanity of the rule as it exists, its relaxation seems highly expedient. It is believed that the proposition in the section is so guarded that it cannot be abused by applying it to cases not intended to be privileged.” (3 R. S., 737, 2d ed.)
We are called upon for the first time, so far as we are aware, to give a construction to this statute upon the point involved in this case. In the absence of authority, which we exceedingly regret, we must be guided by the obvious spirit of the statute, and by a reference to the analogous privilege as to counsel, of which privilege this statute, as it is apprehended it will be readily conceded, is merely declaratory as applied to physicians.
The next question is as to the persons between whom the relation must exist, It would seem to' be absolutely necessary that the party on one side should be a duly qualified physician. That, under the statute, is in the nature of a condition precedent, so to speak. This qualification, also, has always been annexed to the privilege in the case of attorneys.
The remaining question, so far as this case is concerned, is, what must be the nature of the relation between the parties.
A literal construction of the statute would require the technical relation of physician and patient to exist. But is that indispensable? In the case of a visit from a physician, may there not be a state of circumstances which falls short of constituting this technical relation, but which presents a very proper case for the application of the statute?
This is, in our judgment, the real question before us, and it consequently deserves full consideration.
The thought naturally first suggested is, that the statute is for the protection of the patient and not for that of the physician. This very point has been ruled under the statute (14 Wend., 637; Johnson v. Johnson, 2 Cow. & Hill’s Notes, 1574), and it is in consonance with the well settled doctrine in the analogous case of attorney and client.
The statute is, moreover, of a remedial nature, and must be construed liberally. In the case of such a statute, it is peculiarly the duty of the court to look for its spirit, and be guided thereby in its application.
A reference to the corresponding privilege in the case of attorney and client, will, it is apprehended, confirm this view.
The rule in general statement is laid down quite as strictly as in the statute .before us, that the professional relation must exist; yet it'is well settled that no regular retainer as counsel is necessary, nor any particular form of application or engagement, nor the payment of fees, or the expectation of payment, or receipt of fees. (12 Pick., 89; 3 Sandf. Ch. R., 35.)
Again, the doctrine is laid down in general terms equally strictly, that the information, in order to be protected, must
And lastly, it has been held that the general rule that the professional relation must exist is not inflexible, and that there may be cases in which the. communications will be privileged, although the relation did not, in point of fact, exist at all. (Smith v. Fell, 2 Curt., 667 ; 1 Greenl. on Ev., 307, note 2; Sargent v. Hampden, 38 Maine, 58.) In the former of these cases a professional person had been requested to act as solicitor, and the communication was made under the supposition that he had accepted. A brief extract from the opinion of Howard, J., in the latter case, will not be without value. After stating the common law rule and the rationale of it, he proceeded:
“ The reasons upon which this time honored rule of law is founded may apply with equal force where one makes application to counsel for professional services, although the relation of client and attorney do not, in fact, subsist, as where the latter may not conclude whether to withhold or render his professional aid until the appliant has disclosed the merits of his case. Then if he should decline to act professionally in the matter, on account of prior engagements and prior ohligations to others, or from necessity or choice, the disclosures and communications then made should be privileged. As they were committed to him in his professional character, the spirit of the rule would require that they should not be divulged without the assent of the party by whom they were made.”
Support may also be derived from analogous cases. One only will be suggested:
The Revised Statutes justify a homicide if committed by a person in self-defence, when there shall be a reasonable
It remains to make an application of the fact before us to the proposed construction of the statute. Th& only point requiring consideration is whether the prisoner had reasonable grounds for the supposition that Drs. Montgomery and Avery came to him for the purpose of examination and treatment, and did so suppose. ' ,
In the first place, it is clear that he had reason to expect medical aid from the public authorities. He was in a disabled and shattered condition, evidently having either been engaged in a terrible struggle, or having fallen over the river bank, or both. He was a captive in the hands of the public authorities. It was their duty, under such circumstances, to furnish him all reasonable medical aid and attendance. This he had a right to expect, and probably did expect.
We are also of opinion that the prisoner had reasonable ground of apprehension that Drs.■ Avery and Montgomery called to render him aid. Their language to him which introduced this interview, though to our minds and at this distance from the occasion conveying a different meaning from that in which the prisoner manifestly received it, did
And, lastly, we are of opinion that the prisoner regarded the visit in that light. His manner throughout, and particularly his closing question or remark about their calling again the next day, are, to our minds, almost conclusive evidence on this point.
It is no valid objection to an application of this statute, that the prisoner did not probably know of its existence, and had no opinion whether or not the particulars of that interview would be privileged from disclosure. It is a sufficient answer that the salutary rule of law stands upon the statute book, and is to be dispensed alike to those familiar with or ignorant of its existence and applicability.
If the prisoner’s mind had been carefully disabused at the outset of any notion of the examination being solely for his benefit, and he had been carefully advised that its sole object
We are of opinion that the objection to the testimony offered by the people should be sustained.
(Dissenting.)—The object of the statute was to make communications, made by a patient to his physician, confidential and privileged, and also to prohibit such physician from disclosing any fact or thing which he might learn in the treatment of the case. This was a wise and salutary provision, intended to protect the rights and feelings of patients, but, in order to be thus privileged, there must exist between the parties the relation of physician and patient. The patient must engage or employ his physician, and be liable (by an express or implied understanding) for the payment of his services. In this case, the physician'called upon the prisoner, not as a physician at his request, but as the agent of public authorities of the county, to perform an official and not a professional duty, the same as a sheriff, constable or any other public officer might have been directed to perform. The prisoner was expressly informed by the physician that he called upon him by the order and under the direction of the coroner; he was not therefore misled as to the nature and character of the doctor’s visit, and made no objection to such examination. Had the prisoner objected it could not have been properly made. As there was no deception, and the information as it appears fairly obtained, it can be regarded in the nature of a voluntary admission, and as such may be received in evidence. It seems clear to inc that this case does not come within the prohibition of
In accordance with the opinion of the majority, the evidence offered was excluded.