State v. CarterState v. Carter
Defendant Johnny Carter was charged by bill of information with armed robbery in violation of
Upon returning home from work in the late evening hours of January 19, 1979, Margaret Adams was apрroached by a man with a gun as she was getting out of her car. He pointed it at her and demanded her purse. After removing six dollars from her purse, the assailant insisted that she give him the keys to the car. Ms. Adams drоpped the keys behind the front seat. When the man stooped to look for them, the woman picked up her gun and fired in his direction. The man ran down the street, followed by his intended victim, who fired several mоre shots until he disappeared from view.
The police were notified of the incident. Investigating officers followed a trail of blood to a point on Washington Street beside an apartment building.
Bеcause the perpetrator of the crime had been shot, Officers Marziale and Palermo investigated a report that a man with a gunshot wound had been admitted to Charity Hospital. At the hospital, they found defendant Carter, who had been shot in the face and buttocks. When Officer Marziale discovered that Carter‘s apartment was located fifty feet from the point where the blood was fоund, he placed defendant under arrest. Carter was advised of his rights and refused to sign a waiver or give a statement. Margaret Adams made a positive identification of Carter as the thief.
Dr. Wayne Soigniеr, a resident surgeon, was on emergency room duty at the Charity Hospital Clinic that night. After Carter was arrested and read his Miranda warnings, Dr. Soignier approached him and began an examination. The two arresting оfficers stepped a few feet away. When Dr. Soignier asked defendant how he had received his gunshot wounds, defendant stated that he had “... attempted to rob a lady and she pulled a gun out of her
The only аssignment of error is the ruling that the statement to Dr. Soignier was admissible. Defendant asserts that the statement, which was made for purposes of medical treatment, should have been excluded under the doсtor-patient privilege provided in
Three arguments are asserted by the State in support of the admissibility of the statement. The State first contends that the trial court correctly found that examinatiоn of the defendant by a state physician, while defendant was in custody, places the statement within the rule enunciated in State v. Berry, 324 So.2d 822 (La. 1976). In Berry the testimony of the coroner who had examined the defendant shortly after his arrest was admitted over defense objection. Emphasizing that the defendant had not consulted the coroner for treatment, the court held the doctor-patient privilege did not extend to testimony of the results of an “in-custody physical examination of an accused by a state physician for the limited purpose of making objective findings as to his physical condition.” Id., at 828.
The first requirement for the privilege to attach is that the patient must have consulted the physician for treatment or for diagnosis looking toward treatment. State v. Berry, supra. Defendant entered Charity Hospital voluntarily for the express purpose of obtaining treatment for a gunshot wound. In this respect, defendant consulted a physician through the hospital‘s services. As the physician on duty, Dr. Soignier provided the treatment as a member of thе staff. His status as a resident surgeon in a state-owned hospital is immaterial under these circumstances.
Even though defendant was under arrest when he was examined by Dr. Soignier, this fact does not create thе type of in-custody examination contemplated in Berry. The examination in Berry was conducted for the purpose of determining the defendant‘s health prior to incarceration. Here the examination was not made incident to defendant‘s arrest but was intended to provide medical treatment. In addition, the statement that was elicited differs from objective findings regarding the defendant‘s physical condition, thus removing this situаtion from that faced in Berry.
The second prerequisite to attachment of the doctor-patient privilege is found in the requirement that the patient‘s communication has been made in confidence to his physician. McCormick on Evidence, Section 101 (2d ed. 1972). The State argues that defendant did not intend to keep his statement confidential, because it was made in a crowded hospital corridor in the presence of two police officers. However, the testimony clearly shows that the two officers, who had stepped a few feet away, were not actually present whеn the statement was made. One officer testified that he could not recall hearing the statement; the other did not even see Dr. Soignier. A finding of intended confidentiality is further supported by the fact that the defendant refused to give a statement to the police immediately before speaking to the doctor.
Finally, the State argues that the statement is nevertheless admissible under the statutory exception to the hearsay rule provided for hospital records, under
The statutory doctor-patient privilege has been held inapplicable to matters arising under the statutory hearsay exception provided in
The State‘s claim that the statement would be admissible under thе O‘Brien rationale is not well-founded, as the medical records were not introduced by the State. Defendant asserted the privilege with regard to the doctor‘s testimony of the content of the statemеnt. In establishing the privilege, the statute in question clearly prohibits disclosure of “any communication” made to the physician by his patient.
Since the doctor-patient privilege clearly attached when defendant made this confidential communication to his doctor, the trial court erred in ruling thаt the doctor‘s testimony about the statement was admissible.
For the reasons assigned, the guilty plea is set aside, the sentence is reversed, and the case is remanded for a new trial in accordаnce with the views expressed in this opinion.
PLEA VACATED; REVERSED AND REMANDED.
BLANCHE, J., dissents.
MARCUS, J., dissents and assigns reasons.
MARCUS, Justice (dissenting).
I consider that a statute creating the doctor-patient privilege should be strictly construed in that it precludes the introduction of relevant evidencе not otherwise constitutionally protected. Under the circumstances of the instant case, I do not consider that defendant intended to keep his statement confidential. Accordingly, I respеctfully dissent.
Notes
“No physician is permitted, whether during or after the termination of his employment as such, unless with his patient‘s express consent, to disclose any communication made to him as such physician by or on behalf of his patient, or the result of any investigation made into the patient‘s physical or mental condition, or any opinion based upon such investigation, or any information that he may have gotten by reason of his being such physician; provided, that the provisions of this article shall not apply tо any physician, who, under the appointment of the court, and not by a selection of the patient, has made investigation into the patient‘s physical or mental condition; provided, further, that аny physician may be cross-examined upon the correctness of any certificate issued by him.”
“Whenever a certified copy of the chart or record of any hospital in this state, signed by the administrator or the medical records librarian of the hospital in question, is offered in evidence in any court of competent jurisdiction, it shall be received in evidence by such court as prima fаcie proof of its contents, provided that the party against whom the record is sought to be used may summon and examine those making the original of said record as witnesses under cross-examination.”