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her professionally, although against her protest, is a privileged communication, under section 5907, Comp. St. Neb. 1901.
[Ed. Note.—For cases in point, see Cent. Dig. vol. 50, Witnesses, $8 768
772.) 2. SAME-ESSENTIALS-EMPLOYMENT BY THIRD PERSON.
The essentials of a privileged communication between physician and patient are: (1) The confidential relation of physician and patient; (2) the necessity and propriety of the information to enable the physician to treat the patient skillfully in his professional capacity; and (3) its acquisition by the physician from the patient during the existence of the relation.
Such a communication is not deprived of its privileged character by the fact that the relation is established at the instance of a third party.
[Ed. Note.-For cases in point, see Cent. Dig. vol. 50, Witnesses, $8
768-772.) 3. SAME-WAIVER-VOLUNTARY TESTIMONY.
A patient waives his privilege by voluntarily producing, or introducing at the trial, evidence of the confidential communication, and thereby exempts the testimony of his physician thereto from all objections upon that ground, because he thereby publishes it and deprives it of its confidential character.
But neither the commencement of an action for an injury nor testimony of the condition of the injured party has this effect.
(Ed. Note.-For cases in point, see Cent. Dig. vol. 50, Witnesses, $$ 781,
782.) 4. TRIAL-CORRECTION OF ERRORS.
Errors in rulings and misstatements of facts by the court during the progress of the trial, which are clearly corrected by it before the trial closes, or in the charge of the court to the jury, are not generally fatal to the judgment.
[Ed. Note.—For cases in point, see Cent. Dig. vol. 46, Trial, $$ 968–
973.) 5. SAME_CONDUCT-REMARKS OF JUDGE.
The opinion of the trial court expressed to the jury upon matters of fact which are ultimately submitted to them for their decision is not reviewable error in a national court, so long as no rule of law is incorrectly stated.
[Ed. Note.--For cases in point, see Cent, Dig. vol. 46, Trial, 88 80–84.) 6. TRIAL-INSTRUCTIONS-EXCEPTIONS-INSTRUCTIONS GOOD IN PART.
A general exception, which specifies no ground to a charge or a portion of a charge to a jury, which embodies several propositions of law, is futile if any of the propositions are sound.
[Ed. Note.-For cases in point, see Cent. Dig. vol. 46, Trial, $ 694.] (Syllabus by the Court.)
In Error to the Circuit Court of the United States for the District of Nebraska.
Edson Rich (John N. Baldwin, on the brief), for plaintiff in error.
SANBORN, Circuit Judge. The plaintiff below was injured by the collision of a car of the Union Pacific Railroad Company, in which she was a passenger, with an engine upon another track, and she was taken to the surgeon's room in the Union Station at Omaha, where two of the physicians of the company attended her. She brought this action for damages caused by her injury. The court refused, upon the obon of the plaintiff, to permit the medical men to testify to the exnations of the plaintiff which they made, to their conversations with
and to the treatment which they gave her at the station, upon ground that these were confidential communications under section
of the Compiled Statutes of Nebraska of 1901, which reads in way: o practicing attorney, counsellor, physician, surgeon, minister of the gosor priest of any denomination, shall be allowed in giving testimony, sclose any confidential communication, properly intrusted to him in his ssional capacity, and necessary and proper to enable him to discharge the tions of his office according to the usual course of practice or discipline.”
here was evidence that the physicians went to the station on behalf he company to render professional services to any who had been red by this collision who were in need of such services, that the tions which they asked, the examinations which they made, and information which the plaintiff gave to them were proper and ssary to enable them to treat her as physicians in a skillful way, that they were made and given for this purpose; but that the tiff refused to permit any extended examination of her person in station, and when one of the physicians gave her a sedative she sed to take it, and demanded that she be removed to her home. he essential elements of a privileged or a confidential communicato a physician under the Nebraska statute are: (1) The relation hysician and patient; (2) information acquired during this rela; and (3) the necessity and propriety of the information to enable physician to treat the patient skillfully in his professional capac
These attributes characterize the communications which the ndant sought to prove by the physicians, and they were not deed of their privileged character by the fact that the relation of sician and patient was established at the request of the defendand against the protest of the plaintiff. Confidential communions by a patient to a physician are not less privileged because relation is established at the request of a third person. The phyns who testified in this case attended the plaintiff for the purpose reating her in their professional capacity, in the discharge of their - to the company which employed them. All the information which
acquired from her was necessary or proper to enable them to do This information was obtained during the existence of the relation physician and patient, which they themselves established and by 1e of that relation alone, and it was rightfully excluded under the ate of Nebraska. Raymond v. Ry. Co., 65 Iowa, 152, 21 N. W. : Keist v. C. G. W. Ry. Co., 110 Iowa, 32, 81 N. W. 181; Renihan ennin, 103 N. Y. 573, 579, 9 N. E. 320, 57 Am. Rep. 770; Grifv. Metropolitan St. Ry. Co., 63 N. E. 808, 171 N. Y. 106; Colo
Fuel & Iron Co. v. Cummings, 46 Pac. 875, 8 Colo. App. 541. ne of the questions and one of the answers excluded read in this : . You may state what Mrs. Thomas said to you. A. She said she bad injured in the wreck by being struck on the back of the neck."
Counsel contend that, if the entire communications were incompetent, yet this question and answer were not privileged, because it was not necessary for the physician to obtain the information they contain in order to enable him to skillfully treat the plaintiff. But before this answer was given the physician had testified that he went to the station for the purpose of administering to Mrs. Thomas, or any other passenger injured by the collision, in such a way as her condition might require; that he commenced to engage Mrs. Thomas in conversation for the purpose of ascertaining her condition and to administer remedies. The physician, therefore, was of the opinion that the information obtained by the answer to this question was reasonable to enable him to ascertain the condition of his patient and to administer proper remedies to her. It was in the light of this testimony that the answer was excluded, and, in view of the probability that it was 'necessary and proper for the physician to learn in what part of her person the plaintiff had been injured in order to properly treat her, no sound reason occurs to us why the information which this answer conveyed was not privileged. In support of the opposite view, counsel cite two cases, in which information acquired by a physician from his patient relative to the way in which the accident happened, as that the injured person fell through a trapdoor, has been held admissible. Harriman v. Stowe, 57 Mo. 93; Greene v. Metropolitan St. Ry. Co., 63 N. E. 958, 171 N. Y. 201, 89 Am. St. Rep. 807. But these are not controlling authorities, because the questions they present are not analogous to that in hand. It may be unnecessary for a physician to learn by what force an injury was inflicted upon the patient, while it may be indispensable for him to know upon what portion of his person this force was imposed in order to treat him skillfully. The question and answer were a part of a communication between the physician and his patient which consisted of the statement in the answer, of other conversation and of a limited examination. They were all of a privileged character and properly excluded.
Another position of counsel for the company is that the plaintiff waived her privilege because she testified to the communication, and thereby rendered the evidence of the physicians competent. Testimony voluntarily produced on behalf of a patient or a client of communications between him and his physician or his attorney undoubtedly waives his privilege and exempts the evidence of the physician or attorney relative to the communication from all objection on the ground that it is confidential or privileged, because the patient or client has thereby made it public. Hunt v. Blackburn, 128 U. S. 464, 470, 9 Sup. Čt. 125, 32 L. Ed. 488. But the reason for this rule is that the patient or client has deprived the communication of its confidential character by voluntarily causing it to be recited in public. Testimony that is not voluntarily given and evidence that does not recite the communication works no waiver, because the reason for the rule there ceases, and the rule becomes inapplicable. Burgess v. Sims Drug Co., 114 Iowa, 275, 86 N. W. 307, 54 L. R. A. 364, 89 Am. St. Rep. 359. Upon her direct examination the plaintiff testified that some one whom she did not know came into the station, wanted to examine her, took höld of her feet and felt them, and put his hand under the back of ck, and she told him she did not want him to touch her, but gave dence that this person was a physician, or that there was any r communication between them. There was no other evidence this subject in her direct examination, and this constituted no · of the privilege, because it did not recite or set forth any of nversations with her or any of the information relative to her ion or her injury, which the physicians secured by virtue of their sional relation and the defendant sought to introduce by means m. It is true that on her cross-examination the plaintiff testiat the person who attempted to examine her said he was a Union : doctor, that another person came who said he was not a Union
doctor, and she refused to permit him to make an examination, e accompanied her to her home. But this testimony was not eered, and there was no recital of the information secured by the s in it, and consequently no waiver of her privilege. nsel have cited in support of their claim of waiver here the arguof Prof. Wigmore, in section 2389 of the third volume of his on Evidence, that the law ought to be that the commencement action on account of a physical ailment or the voluntary testiof the plaintiff to his physical condition is a waiver of his privi
prevent his physicians from testifying concerning them. Sufto say that the learned author himself concedes, and the statutes
states and the unvarying current of authority demonstrate, ne settled law of the land is otherwise. Williams v. Johnson, d. 273, 13 N. E. 372; McConnell v. Osage, 80 Iowa, 293, 45 550,8 L. R. A. 778; Green v. Nebagamain, 113 Wis. 508, 89 N. ), 521. The only other authority brought forward to sustain the
is Sovereign Camp of Woodmen of the World v. Grandon, 64 9, 89 N. W. 448, a case in which the introduction by the plaina written statement by the physician of the condition of the
was held to be a waiver of the privilege to object to his testio that condition, a proposition which is conceded, but which has lication to the facts of this case. physicians went to the hospital and examined the plaintiff, and them testified that he came to the conclusion that she was suffrom traumatic hysteria. The other physician had testified e and was in court, but no foundation had been laid to impeach Counsel complain because the first doctor was not permitted to that the second concurred with him in his conclusion. The was right. The proposed evidence was nothing but hearsay. e was evidence at the trial that the plaintiff was suffering from tic ulcers of the stomach, which might not be relieved by medatment, and the defendant offered the evidence of experts that sease might and probably would be relieved by a surgical operahich consisted of making a new opening in the lower part of mach and in the bowel below it and securing the latter to the , so that the contents of the former might pass through this g and through the latter. Objections were interposed to this ce, and a colloquy arose between counsel for the railroad comnd the court relative to its admissibility, in which the court ex12 F.-24
pressed the opinion and ruled that it was immaterial. In the course of the colloquy, the court said, among other things:
“I think, where a person is injured by the wrongful act of another, the law only says to them you must exercise proper care in the selection of a reputable physician, and when you do that you must be governed by his advice, follow lis advice and prescriptions, and it is no defense to say that had the physician followed some other course, prescribed some other remedies, results would have been different. That is no defense. The layman that is injured is not a physician; and all he has to do is to exercise proper care in selecting a reputable one and follow his directions; and, if the directions are not proper, it is the fault of the one who caused the layman to act. If that is true up to this time, why is it not true as to the future? You come in with one person on the stand who says: “If you will take so many bottles of Peruna, that will cure you.' Another one says: 'If you will submit to a surgical operation, that will cure you.' And another one says: 'Some Pink Pills, or something of that kind, will cure you.' Has a person got to jump around and try all those different experiments that might be suggested by the other side, or may ther not rely upon the advice and direction of the competent physician whom they have selected themselves, and in whom they have every confidence?"
Later in the trial all objections to this evidence were withdrawn, il was received, the court charged the jury that testimony had beer introduced to show that plaintiff's future health could be restored by the surgical operation, and that, if her health could be thus restored, it was proper and competent for them to take into consideration the reasonable probability of such restoration in measuring her damages from future suffering and expense, and whether or not, considering both the rights of the plaintiff and the defendant, she should be required to submit to such an operation in view of the danger to life therefrom which had been disclosed by the evidence. No complaint is made of the charge upon this subject because it is in accord with the theory of the defendant. Nor was there any reversible error in the ruling of the court that the evidence was inadmissible, because this, if it existed, was extracted by the subsequent admission of the testimony and the favorable charge of the court. But counsel insist that the remarks of the court during the discussion of the admissibility 'of this evidence, especially those which placed the surgical operation in the same category with Peruna and Pink Pills, so belittled this branch of their defense that they were deprived of a fair and impartial trial. But the record does not appear to us to sustain this contention. These remarks were made upon an objection which was righily sustained to this irrelevant question: "What surgical operations, doctor, are performed in cases of this character?” They were made, it is true, in a discussion of the general admissibility of evidence that the plaintiff's disease might be cured by a surgical operation; but they were made before that evidence had been introduced and for the legitimate purpose of informing counsel who proposed it of the reasons why it appeared to the court that it was incompetent, to the end that if possible they might overcome these reasons by more cogent ones in support of its admissibility, a task which they seem to have performed to the terror, if not to the satisfaction, of opposing counsel. Though these remarks were heard by the jury, they were not addressed to them, but to the counsel for the company. They were not intended to, and did not, instruct the jury of the weight