attend his patient as physician;' and he may answer the question whether the information was necessary to enable him to act in his professional capacity;' for while his testimony on that point is not conclusive, and the Court uses its own judgment in reaching a determination, his testimony is competent evidence.' He may also testify that a person was ill and was his patient, that he attended as physician, and he can state when he attended and how many times."

It has been said that where the evidence justifies the conclusion that information regarding the patient is acquired while attending in a professional capacity, it is not essential to show by formal proof that the information was necessary."

THE RIGHTS AND DUTIES OF THE PHYSICIAN WITH REFERENCE TO THE PRIVILEGE.

The privilege established by law is a rule of evidence, and not a regulation of a physician's general conduct outside of a proceeding in which rules of evidence are applicable. The courts have, however, not hesitated to intimate that it is a physician's duty to observe the same secrecy in his general walk and conversation."

The physician may testify as an expert on hypothetical questions submitted to him regarding facts which might be equally true of any other person than his patient, and excluding from his consideration privileged knowledge." And he may also testify as to matters which came to his knowledge before or after or independent of his employment as physician,' or which were immaterial to his acting in a professional capacity, and as

1 Numirich v. Supr. Lodge K. & L. of H., 3 N. Y. Supp., 552 (Trial Term, City Ct. of N. Y., 1889); see also supra, p. 115.

Herrington v. Winn, 60 Hun, 235 (Supr. Ct., Gen. T., 1891).

3 In matter of Halsey, 29 N. Y. St. Rep., 533 (N. Y. Surr., 1890); cf. Matter of Darragh, 52 Hun, 591. 4 Patten v. United L. & A. Ins. Assn., 133 N. Y., 450.

Brigham v. Gott, 3 N. Y. Supp., 518 (Supr. Ct., Gen. T., 1889) supra, p. 124.

6 Buffalo L. T. & S. D. Co. v. K. T. & Mas. Mut. Aid Assn., 126 N. Y., 450.

Harris v. Rupel, 14 Ind., 209; Sullings v. Shakespeare, 46 Mich., 408; Storrs v. Scougale, 48 Mich., 387; Buffalo, etc., Co. v. Knights T. & Mas. Mut. Aid Assn., 126 N. Y., 450.

8 Coryell v. Stone, 62 Ind., 307; People v. Schuyler, 43 Hun, 88, affirmed 106 N. Y., 298.

THE RIGHTS AND DUTIES OF THE PHYSICIAN.

133

to which his patient could have had no reasonable ground for believing that they were necessarily disclosed in order that the physician might so act.' It is the patient's privilege and not the physician's; and, therefore, the physician is not absolutely incompetent as a witness, and has no right to refuse to testify." But where he is a party he may object and then he will not be forced to disclose his patient's confidence.'

In Indiana it has been held that where the patient testifies in an action against his physician for malpractice the physician is then at liberty to testify or to introduce any other witness to testify concerning the matters in controversy.*

In Michigan, a physician who was plaintiff in a libel suit was not permitted to insist upon the privilege to prevent the disclosure of his maltreatment of his patient or what other physicians had discovered with regard to it by visits to his patients."

The measure of the physician's exemption and liability in testifying is the language of the statute, and not his idea of his duty to his patient or the patient's injunctions of confidence or secrecy."

In some of the States there are statutory provisions entitling physicians to sue for compensation for their professional services. The statutes regarding privileged communications are to be construed together with these. There seems to be no reason why a physician's right of action for his services and medicines should not survive the prohibition of his evidence; but it would seem that he cannot as a witness in such an action testify regarding privileged matter. But he can prove it by other witnesses."

1

Supra, p. 119.

? Penn Mut. L. I. Co. v. Wiler, 100 Ind., 92. Valensin v. Valensin, 14 Pac. Rep., 87 (Supr. Ct. Cal., 1887); cf. In re Hannah, 11 N. Y. St. Rep., 807.

Mason v. Libbey, 2 Abb. N. C., 137; Mott v. Consumers' Ice Co., 2 Abb. N. C., 143.

Lane v. Boicourt, 27 N. E. Rep., 1111; see also Winner v. Lathrop, 67 Hun, 511 (N. Y. Supr. Ct., G. T.). Scripps v. Foster, 41 Mich., 742.

5

6 Grattan v. Metr. L. I. Co., 80 N. Y., 281.

See p. 137, this volume, for the medical laws of the several States and Territories; for history of physician's right of action for services, see Graham v. Gautier, 21 Tex., 117; see Wood v. Munson, 70 Hun, 468. In Georgia and Alabama a physician's books are evidence in such actions. Code Ala., 1886, s. 2,777; Code Ga., 1882, s. 3,777.

8 Kendall v. Grey, 2 Hilt., 300.

THE RESULT OF THE LEGISLATION.

It is doubtless due to considerations of public policy that the statutes changing the common-law rule have been enacted;' but they have not proved an unalloyed benefit, and some of their features have brought about conditions which in some cases have embarrassed the administration of justice. The law in New York may be taken for illustration; it formerly cut off the safest means of ascertaining the mental condition and competency of a testator; it now precludes a physician from disclosing the condition of his patient who is a lunatic or habitual drunkard,' though it be the most satisfactory evidence; it shuts out much testimony tending to show fraud in insurance cases; it precludes a physician from stating the cause of his patient's death,' though there is no longer any secrecy connected with it, for the law makes it the duty of the physician to make, for filing with the local board of health, a certificate of the probable cause of the death of a patient. It has been the subject of much adverse criticism,' but all such considerations are properly to be addressed to the legislature and not to the courts. It seems to be the most farreaching in its exclusion, and though it has been the longest in existence, was modified at the legislative sessions of 1891, 1892, and 1893, a fact which tends to show that there was sound reason in the criticisms.

certificates of the fact of birth for registration (Act 1893, c. 661, secs. 22, 31), and to certify the existence of contagious and infectious diseases (ib., s. 24).

'See suggestions on the policy of the New York law in Conn. Mut. L. I. Co. v. Union Tr. Co., 112 U. S., 250; Pearsall v. Elmer, 5 Redf., 181; and contra, Edington v. Mut. L. I. Co., 5 Hun, 1.

A SYNOPSIS OF THE LAWS

OF THE

SEVERAL STATES AND TERRITORIES OF THE UNITED STATES OF AMERICA, AND OF GREAT BRITAIN AND IRELAND, AND

OF THE NORTH AMERICAN PROVINCES OF GREAT

BRITAIN, REGULATING THE PRACTICE

OF MEDICINE AND SURGERY,

PREPARED FROM THE LATEST STATUTES.

BY

WILLIAM A. POSTE,

Late First Deputy Attorney-General of the State of New York,

AND

CHARLES A. BOSTON, Esq.,

of the New York City Bar.