Chapter XLI: Section 6: ,216, same as 303, N. Y. P. C (22)

“In the first place I doubt much whether the defendant below, after retaining the plaintiff as a physician and accepting his services as such, could call upon him in the first instance to prove a regular license. In other like cases, the presumption is against the defendant. It is so as between attorney and client, in a suit for services performed under a retainer. Pearce _v._ Whale, 7 Donl. & Ryl., 512, 515, per Bayley, Judge; 5 Barn. _v_. Cress., 38, S. C. There, if the objection sound in the fact that the plaintiff was never admitted, or that his admission has become inoperative, it lies with the defendant to show it. _Id._, and see Berryman _v._ Wise, 44 T. R., 566. and other cases; 1 Phil. Ev., 227, Cowen _v._ Hill’s ed. Besides, the contrary would be doing great violence to the presumption that no man will transgress the command of a positive law.” See also Thompson _v._ Sayre (1 Denio, N. Y., 75), where this principle seems to have been assumed as correct without question upon the strength of the decision quoted above. A similar doctrine appears to have been enunciated in the State of Illinois in Chicago _v._ Wood, 24 Ill. App., 42; and Williams _v._ People, 20 Ill. App., 92. It may be sound, and undoubtedly the English cases cited in Macpherson _v._ Cheadell, _supra_, tend to support it. But in a case in which the physician’s right to practise is denied, the safe course will be for him to have a duly authenticated copy of his license ready to be offered in evidence. The general rule is that the burden is on the plaintiff to show all the facts which make up his right of recovery. See Bliss _v._ Brainard, 41 N. H., 256; Salomon _v._ Dreschler, 4 Minn., 278; Kane _v._ Johnston, 9 Bosw., N. Y. Superior Ct., 154.

[158] That is, the burden devolves upon the defendant, and this notwithstanding the presumption of innocence, of showing what must be peculiarly within his own knowledge, namely, that he has been duly licensed. People _v._ Nyce, 34 Hun, N. Y., 298, and cases cited; 1 Greenleaf on Ev., § 79, and cases cited. See, contra, State _v._ Evans, 5 Jones. N. C., 250.

[159] In Finch _v._ Gridley’s Executors (25 Wend., N. Y., 469-471), Nelson, Ch. J., said: “I am also inclined to think the evidence which was given competent to prove the _diploma_ from Fairfield College. The witness identified the corporate seal, _and had himself received a diploma from that institution subscribed by the same president and secretary_. Though he did not actually see them subscribe the paper, he had every means of becoming acquainted with their signatures; _the delivery_ of it to him was an acknowledgment they had signed it. Besides, he was familiar with diplomas from the institution under their signature,” etc.

And see, also, Raynor _v._ State, 62 Wis., 289; Wendel _v._ State, _id._, 300.

[160] In some of the States, persons who simply administered roots and herbs in treating disease, have been excepted from that portion of the statute which forbids the practice of medicine and surgery without a license. The proper construction of such an exception is, that it is a question of fact for the jury, whether the person accused who claims the benefit of the exception, simply administered a concoction of roots and herbs within the meaning of the statute, or whether, under the guise of so doing, he really held himself out as and acted as a regular practitioner. All such penal statutes are to be construed, like all other penal statutes, with due regard to the rights of the individual, and at the same time with such degree of liberality as will tend to preserve the public safety.

[161] It has been held that the act of a physician in reporting to a health-board in good faith that his patient is suffering from small-pox, is not actionable. Brown _v._ Purdy, 8 N. Y. St. Rep., 143. The Court said (per Sedgwick, J.): “In order to give the public the protection due to it, according to the intention of the statute, any physician that possesses in fact an opinion that a patient has a contagious disease, is bound to report the case, _whether he has_ or _has not_ used ordinary professional skill and knowledge. A physician of skill in everything but cases of small-pox, which happily are not numerous, may, unexpectedly to himself, be called to a case which presents to him the appearance of small-pox. It may be said that he may call in counsel. It cannot, however, be said that private counsel should be called in rather than such as the law has appointed. Certainly, if he really thinks the case to be one of small-pox, it is his duty to communicate his opinion to the public authorities, who furnish skilled physicians peculiarly competent to pass upon the case. They are the experts the law points out for the physician. The attendance of these experts upon a patient can cause no injury, and thereafter the responsibility rests solely upon the public officer.”

As to how far the decision of an inspector appointed by a board of health is regarded by the law as quasi-judicial, and therefore conclusive, see Underwood _v._ Green, 42 N. Y., 140; Raymond _v._ Fish, 51 Conn., 80. Health officers who were guilty of gross negligence in removing infected persons from a city in stormy weather, and putting them in an unprotected and unsafe structure, so that such persons died from the exposure, have been held liable. Aaron _v._ Broiles, 64 Tex., 316.

The latest and most complete statute laws creating or regulating health boards are: England, 38 and 39 Victoria, chap. 55; United States (National Board of Health), 20 Stat. L., 484, suppl. to U. S. Rev. Stats., chap. 202, passed March 3d, 1889; Mass., chap. 79, Mass. Rev. Stats.; Pa., Laws of 1885, chap. 56; New York (State Board of Health), 2 N. Y. Rev. Stats., 1195; Local Boards, _id._, 1191-1193, chap. 270, Laws of 1885. The statutes of New Jersey are considered in Lozier _v._ Newark, 19 Vr., 453. In Missouri the power to license physicians is conferred upon the State Board of Health, and the Supreme Court of that State has held that the act of that board in granting or refusing a license is discretionary and its action in such a matter will not be enforced by a writ of _mandamus_ (State _v._ Gregory, 83 Mo., 123); and a similar doctrine prevails in Minnesota, State _v._ State Med. Board, 32 Minn., 324. The latest and best work on the general subject of the organization and powers of boards of health is Parker & Worthington’s “Public Health and Safety,” M. Bender, publisher, Albany, N. Y., 1892.

[162] Consult, as to this, Parsons on “Contracts,” vol. ii., p. 56.

[163] Of course in those States or countries in which statutes of fraud render void, contracts for personal services for a longer period than one year (or any period named in the statute), unless such contracts are in writing and duly signed, contracts should be drawn and entered into with regard to those statutes.

[164] See also “Field’s Medico-Legal Guide,” 208-210, where the following cases are cited as sustaining this doctrine: New York, Carpenter _v._ Blake, 60 Barb., 488; same case on appeal, 75 N. Y. Court of Appeals, 12. Connecticut, Landon _v._ Humphrey, 9 Conn., 209. Iowa, Smothers _v._ Hawks, 34 Ia., 286. Indiana, Long _v._ Morrison, 14 Ind., 595. Maine, Leighton _v._ Sargeant, 27 Me. (7 Fost.), 468; Howard _v._ Grover, 28 Me., 97. Illinois, MacNevins _v._ Lowe, 40 Ill., 209. Kansas, Teft _v._ Wilcox, 6 Kan., 46. Massachusetts, Com. _v._ Thompson, 6 Mass., 134; Small _v._ Howard, 128 Mass., 131, 35 Am. Rep., 363. Pennsylvania, Potter _v._ Warner, 91 Pa. St., 362, 36 Am. Rep., 668. Wisconsin, Reynolds _v._ Graves, 3 Wis., 416. Vermont, Briggs _v._ Taylor, 28 Vt., 180.

[165] See Shear. & Redf. on Negligence, 440; Elwell on Malpractice, 55; Carpenter _v._ Blake, _supra_; Rex _v._ Long, 4 C. & P., 422; Slater _v._ Baker, 2 Willes (Eng.), 259; Ordronaux on Jurisp. of Med., pp. 29 _et pass._; 20 Am. Law Rev., 82.

[166] On the points here suggested _cf._ Edington _v._ Life Ins. Co., 67 N. Y., 185, same case, 77 N. Y., 564; Grattan _v._ Life Ins. Co., 80 N. Y., 281; Dilleber _v._ Life Ins. Co., 87 N. Y., 79; Westover _v._ Life Ins. Co., 99 N. Y., 56; People _v._ Murphy, 23 N. Y. Weekly Digest, 42; same case, 101 N. Y., 126; Hunn _v._ Hunn, 1 T. & C., 499; Pierson _v._ The People, 79 N. Y., 432-435; People _v._ Carlyle Harris, 136 N. Y., 424.

[167] Patten _v._ Wiggin, 51 Me., 594.

[168] See on this question also Bigelow’s “Leading Cases,” on Torts, 295-303.

[169] Stevenson _v._ The New York, etc., Railroad Co., 2 Duer, 341; same case, 1 Am. & Eng. R. R. Cases, 343; Cincinnati, etc., R. R. Co. _v._ Davis, 43 Am. & Eng. R. R. Cases, 459.

[170] Bronson _v._ Hoffman, 7 Hun, 674; Williams _v._ Glenny, 16 N. Y., 389, and see Ordronaux on “Juris. of Med.,” _supra_, p. 46; but see also Danzinger _v._ Hoyt, 46 Hun, 270.

[171] And it has been held that a decedent’s estate is liable for fees of expert, who by direction of probate court examined widow and testified as to her pregnancy. This notice was put upon the ground that his testimony was necessary for the information of the court in a matter before it affecting the disposition of the estate. Rollwager _v._ Powell, 8 Hun, 10.

[172] Crain _v._ Baudouin, _supra_; Shelton _v._ Johnson, 40 Iowa, 84; Garry _v._ Stadlen, 67 Wis., 512.

[173] And a physician may recover the value of services rendered by his students. People _v._ Monroe, 4 Wend. (N. Y.), 200; Jay Co. _v._ Brewington, 74 Ind., 7. And the physician in attendance is not liable to the physician thus called. Guerard _v._ Jenkins, 1 Strobh., 171.

[174] Deway _v._ Roberts, 46 Michigan, 160.

[175] MacPherson _v._ Chedell, 24 Wend., 15; Adams _v._ Stevens, 26 Wend., 451; Story on Bailments, § 37.

[176] Duly licensed physicians are presumed to be experts as to the value of other physicians’ services. Beekman _v._ Platner, 15 Barb., 550.

[177] Bellinger _v._ Craigue, 31 Barb., 534; Gates _v._ Preston, 41 N. Y., 113; Blair _v._ Bartlett, 75 N. Y., 15. The general rule is that in an action arising on contract damages arising for a tort cannot be set up as a counter-claim. It follows from this that in an action of a physician for services, damages for malpractice could not be recouped or counter-claimed ordinarily. The way in which that rule is avoided, and the safer method, is for the defendant to plead that it was part of the contract of the physician (which it undoubtedly is), to perform his services in a faithful and skilful manner, and that he committed a breach of it, thus charging the damages which flowed from his acts as a breach of contract, not as a cause of action in tort for malpractice or negligence. If that is done the counter-claim arising in malpractice can probably be pleaded in an action for services, and possibly a counter-claim in excess of the amount claimed by the physician recovered as an affirmative judgment against him. On the other hand, in an action for malpractice brought by the patient against a physician, which is generally in form an action for a tortious act, or neglect, the physician cannot plead the performance of services and the non-payment of his bill as a counter-claim or recoupment, because that arises on a contract. If there is any exception to this rule it will be found to grow out of the language of sections 549 and 550 of the Code of Civil Procedure of the State of New York, and of similar enactments in other States, which permit counter-claims arising out of the same subject-matter as the cause of action, to be pleaded in that action. In New York State, however, any effect of that kind is negatived by the general provision that the actions must not only arise out of the same subject-matter but be of the same kind and class.

[178] The degree of care and skill required to be shown to entitle the physician or surgeon to recover compensation for his services has already been stated to be simply such care and skill as are possessed by the majority of other professional men of the same school of practice at the time, or what is known as ordinary care and skill.

[179] Foster _v._ Coleman, 1 E. D. Smith, 85; Larue _v._ Rowland, 7 Barb., 107; Clarke _v._ Smith, 46 Barb., 30; Knight _v._ Cunningham, 6 Hun, 100; Bay _v._ Cook, 22 N. J. L., 343.

[180] The writer is indebted for many valuable suggestions concerning this subject to Ansley Wilcox, Esq., of the Buffalo, N. Y., Bar, and his admirable lectures on Medical Jurisprudence before the Medical Department of the University of Buffalo.

[181] The conservatism of lawyers is proverbial. It is hard to convince them that forms that have been long in use and have been found to serve a useful purpose in the past, are not applicable to new conditions as they arise; for instance, that the methods of procuring the attendance and of examining ordinary witnesses do not fit the necessities of expert testimony. But the question as to the defects of the system as it now exists has been brought to public attention in the journals of the day, in papers read before medical societies and bar associations, and in arguments in legislative bodies, and it is hoped and believed that ere long a reform, something of the character indicated, may be brought about in this very important matter.

[182] It has been a matter of great discussion whether an expert is compellable to testify on matters of opinion, without compensation, the weight of the decisions being that he is not bound to do so. 1 Greenleaf on Evidence, § 310; 1 Warwick Law Assizes, 158; Parkinson _v._ Atkinson, 31 L. J. (n. s.) C. P., 199; Webb _v._ Page, 1 E. & K., 25; People _v._ Montgomery, 13 Abb. Pr., n. s., 207; _Ex parte_ Roelker, 1 Sprague, 276; Buchanan _v._ The State, 59 Ind., 1; Dills _v._ The State, Id., 15; U. S. _v._ Howe, 12 Cent. L. J., 193; _contra_, 6 Central Law Journal, 11; _Ex parte_ Dement, 53 Ala., 389; Sumner _v._ The State, 5 Tex., 21; 6 Southern Law Review, 706.; and see generally Wharton on Evidence, sec. 380, note 66, sec. 456; Lawson on Expert and Opinion Evidence; Rogers on Expert Testimony. As to the compensation being paid before the testimony is given, see Wharton on Evidence, secs. 456, 380; People _v._ Montgomery, 13 Abb. Pr., n. s., 207.

It is proper, although not necessary, that upon cross-examination the witness should be asked as to his fee; that is, as to whether he expects to receive any additional fee besides that of an ordinary witness, and it has been held that where the expert witness testified that he was to receive a fee which was contingent upon the case, he was disqualified from testifying. Pollock _v._ Gregory, 9 Bosworth, N. Y. Superior Ct. Rep., 121-124.

[183] This latter case holds that a second expert may be called to testify after the first has been thus challenged, to support his capacity and skill. The contrary rule, however, obtains in Alabama (Tellis _v._ Kidd., 12 Ala., 643; Pugh _v._ State, 44 Ala., 33). Neither can an expert be contradicted by books of science; that is, by books of science introduced in evidence as such (Wharton on Evidence, 666, 721). This is so because the rule is well established that books, although of great authority in themselves, may not, even if proven to be such, be placed in evidence. They may, however, be read to the witness, and so be placed upon the record, passage by passage, and the witness may be asked whether he agrees with that doctrine, not, however, as part of his direct examination, but as part of his cross-examination.

A medical expert is sometimes confronted upon the witness-stand by long quotations from well known medical text-books, and he is asked whether the doctrines, opinions, etc., there laid down are sound. Especially is this done when such doctrines and opinions are in apparent discord with his evidence as he gives it. In such cases as this, however honest, however intelligent and non-partisan the witness may be (except as any opinion on one side or the other of a disputed question may be considered partisan), he is placed in a very difficult position. If the citations and questions are from well-known authors, and he is a modest man, as most men of learning are, it will be difficult for him to deny that such authorities as these have great weight, even more weight than his experience, skill, and knowledge entitle him to claim. On the other hand, if he takes the bold course and sticks to his opinion, he is cried down the winds by counsel in summing him up, as a man of gall, boldness, audacity and egotism. His course is difficult whichever way he turns, but modesty as well as honesty is usually the best policy. Perhaps the best thing for such a witness to do under such circumstances is to do as once did the great mental alienist Dr. John P. Gray, when, having given an opinion on a question of insanity, he was cross-examined as to the different theories from time to time prevalent as to what insanity was, and having stated what theories were then the accepted ones, he was confronted by counsel on his cross-examination with the question: “What do you think of Dr. John P. Gray as an authority on that question?” and then with his own writings, quite extensive, of many years before, in which he had advocated theories apparently different from those which he had professed upon the witness-stand. Placed in this position, the distinguished gentleman simply replied: “It is true I cherished those theories at that time, but I lived to learn better,” thus substantially disarming any criticism that could be made of him in his capacity as a witness in that case.

[184] For general rules for the conduct of expert witnesses see _infra_.

[185] The principal classes of such subjects may, however, be briefly stated as follows:

1. Causes of death; especially in cases of homicide, suicide, accident, etc., including poisoning.

2. Causes, nature, and extent of personal injuries, by violence, accidents, explosions, railway disasters, collision between vessels, etc.

3. Birth of infants; was infant born dead or alive; if dead, was death the result of natural causes or of internal violence; age of infant at the time of birth or death. Also causes of alleged sterility or pregnancy; time pregnancy has existed; also cases of alleged impotency.

4. Rape, abortion, bastardy, pederasty, onanism, masochism, and many other matters relating to the sexual organs.

5. Malpractice cases, involving the degree of care and skill usual, and that used in the case under investigation, and involving delicate questions as to the propriety of the treatment adopted, etc.

[186] See also 1 Bishop Crim. Law, sec. 36; Rex _v._ Romiski, 1 Moody, 19; Reg. _v._ Ellis, 2 Car. & K., 470.

[187] In such cases as these the patient would have a right of action in the civil courts for damages against the physician or surgeon, because he had taken wilful and wicked advantage of his professional relation to her, to do her a grievous wrong.

[188] The Pennsylvania courts at an early period refused to follow this common-law doctrine, and held that the moment the womb is instinct with life in embryo and the process of gestation has begun the crime may be perpetrated. Mills _v._ Com., 13 Pa. St., 631.

[189] 1 Bishop Crim. Law, sec. 217, citing Rex _v._ Williamson, 3 Car. & P., 635.

[190] The same learned and philosophical text-writer (2 Bishop Crim. Law, sec. 664) compares the English and American cases and declares that the difference between them is more apparent than real.

[191] See Rice _v._ The State, 8 Mo., 561; Fairlee _v._ People, 11 Ill., 1; Holmes _v._ State, 23 Ala., 17; Rex _v._ Spilling, 2 M. & Rob., 107; Ferguson’s Case, 1 Lew., 181; Thomas _v._ Winchester, 2 Selden, N. Y. Court of App., 397; Com. _v._ Pierce, 138 Mass., 165, and cases cited; State _v._ Hahn, 38 Ark., 605; Wharton’s Crim. Law, sec. 1015; Elwell on Malpractice, etc., 238, 239.

[192] 1 Bishop Crim. Law, sec. 558, citing Groenvelt’s case, 1 Lord Raymond, 213; Rex _v._ Long, 4 C. & P., 398.

[193] See also Kelsey _v._ Hay, 84 Ind., 189; Small _v._ Howard, 128 Mass., 131; Gates _v._ Fleisher, 67 Wis., 286; Smothers _v._ Hanks, 34 Iowa, 286; Almond _v._ Nugent, 34 Iowa, 300; Haire _v._ Reese, 7 Phila. (Pa.), 138; Nelson _v._ Harrington, 72 Wis., 591.

[194] Ruddock _v._ Low, 4 F. & F., 519; Musser _v._ Chase, 29 Ohio St., 577.

[195] See particularly Gieselman _v._ Scott, 25 Ohio St., 86; Lanphier _v._ Phipos, 8 C. & P., 475; Pym _v._ Roper, 2 F. & F., 783; Carpenter _v._ Blake, 60 Barb., 485, 50 N. Y., 696, 10 Hun, 358, 75 N. Y., 12; Leighton _v._ Sargent, 7 N. H., 460.

[196] Synonymous terms with “reasonable care” are “fair knowledge and skill,” Jones _v._ Angell, 95 Ind., 376; “ordinary care and skill,” Heath _v._ Glisan, 3 Oregon, 64.

[197] See Corsi _v._ Maretzek, 4 E. D. Smith, 1, quoted at p. 362 of this volume.

[198] Small _v._ Howard, 128 Mass., 131, and cases cited.

[199] Clairvoyancy of course is not recognized in the courts as medical or surgical practice. And any one professing to treat patients as a clairvoyant must be held to the standard of regular practising physicians in the neighborhood where the clairvoyant operates. Nelson _v._ Harrington, 72 Wis., 591; Bibber _v._ Simpson, 59 Me., 181; Musser _v._ Chase, 29 Ohio St., 577.

[200] McCandless _v._ McWha, 22 Pa. St., 261; Carpenter _v._ Blake, _supra_; Leighton _v._ Sargent, _supra_.

[201] Kelley _v._ Hay, 84 Ind., 189; Stone _v._ Evans, 32 Minn., 243; Teft _v._ Wilcox, 6 Kans., 646; Brooke _v._ Clark, 57 Tex., 105; Graunis _v._ Branden, 5 Day (Conn.), 260, s. c., 5 Am. Dec., 143; Wenger _v._ Calder, 78 Ill., 275; Carpenter _v._ Blake, _supra_.

[202] Hyrne _v._ Irwin, 23 S. Car., 226, s.c., 55 Am. Rep., 15; Whittaker _v._ Collins, 34 Minn., 209.

[203] Boor _v._ Lowrey, 103 Ind., 468.

[204] Hitchcock _v._ Burgett, 38 Mich., 501.

[205] See U. P. R. R. Co. _v._ Botsford, 141 U. S., 250; McQuiggan _v._ D., L. & W. R. R. Co., 129 N. Y., 50; Roberts _v._ O. & L. C. R. Co., 29 Hun, 154, and cases cited.

[206] Olmstead _v._ Gere, 100 Pa. St., 127; Carpenter _v._ Blake, _supra_.

[207] Greenleaf Ev., s. 236; Taylor Ev., s. 908; Bouvier’s Law Dictionary, p. 363; Am. and Eng. Enc. of Law, vol. 19, p. 122; Code Civ. Pro. Cal., s. 1,881; Mills’ Ann. Stats. of Col., 1891, s. 4,824; Rev. Stats. Idaho, 1887, s. 5,958; Gen. Stats. Minn., 1891, s. 5,094; Comp. Stats. Mont., 1887, s. 650; Gen. Laws Ore., 1892, s. 712; Comp. Laws Utah, 1888, s. 3,877.

[208] Taylor Ev., s. 911; Stephen, Dig. of Ev., art. 115; Greenleaf Ev., s. 237.

[209] The successive efforts made to extend protection by judicial ruling to communications between physician and patient will appear from a consideration of the cases that are usually cited as authority for the English rule: Annesley _v._ Earl of Anglesea (1743), 18 How. St. Tr., 1,139; Duchess of Kingston’s case (1776), 20 How. St. Tr., 355 (cf. p. 572, p. 585, p. 586, p. 613); Wilson _v._ Rastall (1791)., 4 Term R. (Durnford & East), 753; Rex _v._ Gibbons (1823), 1 C. & P., 97; Broad _v._ Pitt (1828), 3 C. & P., 518; Greenough _v._ Gaskell (1832), 1 My. & K., 98. See also Wheeler _v._ Le Marchant, 50 L. J. Ch., 795 (1880).

1 Phillips Ev., p. 136; Starkie Ev., p. 40; Wharton Ev., s. 606; Greenleaf Ev., secs. 248, 237, 239; Taylor Ev., s. 916; Stephen, Dig. of Ev., art. 115; Rogers’ Expert Testimony, s. 45; Reynolds’ Theory of Evidence, s. 86.

It is to be noted that none of the cases which are cited as authority for the common-law rule as usually stated are really precedents to that extent. The cases of the Duchess of Kingston (_supra_); Lord William Russel (9 How. St. Tr., 602); Dr. Ratcliff (9 How. St. Tr., 582); Earl Ferrers (19 How. St. Tr., 886), and Rex _v._ Gibbons (_supra_), were all criminal prosecutions; and in Annesley _v._ Anglesea, Wilson _v._ Rastall, Broad _v._ Pitt, and Greenough _v._ Gaskell (_supra_), which were civil causes, the question of the privilege of a medical man was not really in dispute. It is well settled that communications between attorney and client are privileged, and yet Judge Pitt Taylor expresses some doubt whether the protection cannot be removed without the client’s consent in cases where the interests of _criminal justice_ require the production of the evidence (Taylor Ev., s. 929). This intimation of a distinction between criminal and civil actions, even in the case of attorneys, suggests the possibility of a difference between those two classes of actions in the case of medical men. The cases cited establish authoritatively that in criminal prosecutions, at common law, confidential communications between medical man and patient are not privileged; but in civil causes, the opinions of the eminent judges seem to be _obiter dicta_. It is, however, established by other decisions that mere confidential relations do not prevent the disclosure of communications. (For the case of _bankers_, see Loyd _v._ Freshfield, 2 C. & P., 325; _managers_, Anderson _v._ British Bank of Columbia. 45 L. J. Ch., 449; _clerks_, Lee _v._ Burrell, 3 Camp., 337; Webb _v._ Smith, 1 C. & P., 337; _stewards_, Vaillant _v._ Dodemead, 2 Atk., 524; Earl of Falmouth _v._ Moss, 11 Price, 455; _Pursuivant of Herald’s College_, Slade _v._ Tucker, 49 L. J. Ch., 644.)

The opinions of so many eminent men, though strictly speaking _obiter dicta_, together with the uniform statements of text-writers based upon them, leave no room for reasonable doubt that independent of statute, in civil as well as criminal causes, communications between medical adviser and patient are not entitled to protection from disclosure in evidence.

[210] See Duchess of Kingston’s case (_supra_, p. 91, note 3) (cf. _ib._, pp. 572, 585, 586, 613).

[211] Greenleaf Ev., secs. 249, 252, 252a.

[212] Greenleaf Ev. s. 249.

[213] See Barnes _v._ Harris, 7 Cush., 576; Hatton _v._ Robinson, 4 Pick, 422. See also historical review of the attorney’s privilege and the reasons for it, by Judge Seldon, at Special Term, in Rochester City Bank _v._ Suydam, 5 How. Pr. (N.Y.), 254.

[214] Wilson _v._ Rastall, 4 Term R., 753.

[215] Best, Prin. of Ev., s. 582.

[216] The revisers of the New York Statutes in 1828 in their report (5 N. Y. Stats. at Large, edited by John W. Edmonds, 2d ed., p. 726) stated as their reason for suggesting a statutory privilege for communications between physician and patient, that “in 4 Term Rep., 580, Buller, J. (to whom no one will attribute a disposition to relax the rules of evidence), said it was ‘much to be lamented’ that the information specified in this section (2 R. S., p. 406, s. 73) was not privileged. Mr. Phillips expressed the same sentiments in his treatise on Evidence, p. 104. 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 may be taken of the policy, justice or humanity of the rule as it exists, its relaxation seems highly expedient.”

These or similar reasons have prevailed in many States and Territories to bring about a statutory restriction on disclosures.

[217] The following cases show or tend to show that the English rule is in operation in Connecticut, Maine, Maryland, Massachusetts, New Jersey, Texas, and West Virginia: Wilson _v._ Town of Granby, 47 Conn., 59; Fayette _v._ Chesterville, 77 Me., 28; Weems _v._ Weems, 19 Md., 334; Morrissey _v._ Ingham, 111 Mass., 63; Barber _v._ Merriam, 11 Allen, 322; Castner _v._ Sliker, 4 Vr., 95; Steagald _v._ State, 3 S. W. Rep., 771; Jarrett _v._ Jarrett, 11 W. Va., 584. For the common-law rule in the States where statutes are now in force, see Campau _v._ North, 39 Mich., 606; Territory _v._ Corbett, 3 Mont., 50; Pierson _v._ People, 79 N. Y., 424; Edington _v._ Ætna L. I. Co., 77 N. Y., 564; Buffalo Loan Tr. & S. D. Co. _v._ Knights Templar, etc., 126 N. Y., 450.

[218] Dig. Stats. Ark., 1884, s. 2,862; Code Civ. Pro. Cal., s. 1,881 as amended Law 1893, c. 217; Mills’ Ann. Stats. Col., 1891, secs. 4,824, 4,825; R. S. Ida., 1887, s. 5,958; Myers’ Ann. R. S. Ind., 1888, s. 497; Act of May 2d, 1890, U. S. Stats. at Large, c. 182, making the laws of evidence of Arkansas applicable to Indian Territory; McClain’s Ann. Code Iowa, 1888, s. 4,893; Code Civ. Pro. Kan., s. 323; Gen. Stats. Kan., 1889, s. 4,418; Howell’s Ann. Stats. Mich., 1882, s. 7,516; Kelley’s Gen. Stats. Minn., 1891, s. 5,094; R. S. Mo., 1889, s. 8,925; Comp. Stats. Mont., 1887, s. 650; Code of Civ. Pro. Neb., secs. 333, 334; Bailey & Hammond’s Gen. Stats. Nev., 1885, s. 3,406; Code Civ. Pro. N. Y., secs. 834, 836, as amended by Laws 1893, c. 295; Laws of N. C., Act of 1885, c. 159; Code Civ. Pro. Dak., 1883, s. 499; Smith & Benedict’s R. S. Ohio, 1890, s. 5,241; Stats. of Okl., 1893, s. 4,213; Hill’s Gen. Laws Ore., 1892, secs. 712, 713; Code Civ. Pro. Dak., 1883, s. 499; Code Civ. Pro. Utah, s. 1,156; Comp. Laws of Utah, s. 3,877; 2 Hill’s Ann. Stats. Wash., 1891, s. 1,649: Sanborn & Berryman’s Ann. Stats. Wis., 1889, s. 4,075; R. S. Wyo., 1887. s. 2,589. For the chronological order and the date of the passage of the earlier of these laws, see note to Gartside _v._ Connecticut Mutual L. I. Co., 76 Mo., 446.

[219] Rev. Stats. U. S., s. 721.

[220] Conn. Mut. Life Ins. Co. _v._ Union Trust Co., 112 U. S., 250. See also Dreier _v._ Continental L. I. Co., 24 Fed. Rep., 670; Adrereno _v._ Mutual Res. Fund L. I. Co., 34 Fed. Rep., 870.

[221] Logan _v._ United States, 144 U. S., 263; United States _v._ Reid, 12 How., 361.

[222] See references to the several statutes in note 2 on p. 94.

[223] See Freel _v._ Market St. Cable Ry. Co., 31 Pac. Rep., 730 (Supr. Ct. Cal.).

[224] This seems to be the proper construction of the Kansas and Oklahoma statutes, though what seem to be typographical errors in the published laws render it doubtful.

[225] For laws regulating practice in the several States and Territories, see _infra_, p. 137 _et seq._

[226] Laws N. Y., Act 1893, c. 295.

[227] N. Y. Code Civ. Pro., s. 836, as amended Act 1893, c. 295. A similar exception was introduced by Act 1891, c. 381, and modified by