Rauh v. Deutscher Verein

Ingraham, J.: This action was brought to recover for injuries sustained by the plaintiff, by reason of tbe breaking of a step of tbe stairs leading from the first floor to tbe cellar in the defendant’s clubhouse. The plaintiff testified to tbe accident and to tbe treatment by tbe physicians received at tbe hospital to which she was taken, and on cross-examination testified that a Dr. Tsitclilowitz was tbe physician to whom she referred. Tbe defendant called Dr. Tsitclilowitz, who testified that be admitted tbe plaintiff as a patient of the hospital and examined and made a diagnosis of her case. He was then asked this question: “ What did you find ? ” This was objected to by counsel for the plaintiff under section 834 of tbe Code of Civil Procedure, and after some — 484 — discussion between counsel for the defendant and the court, the court stated his ruling as follows: “ The court holds that her conversation with the doctor, being brought out on cross-examination of the defendant’s counsel, and being questioned she was obliged to answer, she herself had no privilege, does not open the door to waive the privilege of her physician to refrain from disclosing what he learned by private examination of his patient.” To this defendant excepted, and the counsel then stated to the court: “ Tour ruling is that I cannot go into any examination as to her condition during the time that he treated her in the hospital ? ” The court: “ My ruling is that you are not entitled to obtain from this witness . a disclosure of what he ascertained by an examination of this woman while she was his patient.” To this defendant excepted. Counsel for the defendant then made this statement: “ Then, of course, that limits my inquiry very materially.” The serious question presented is as to the correctness of this ruling. It will be noticed that the final ruling of. the court as to the admissibility of the doctor’s testimony was not that the witness was prevented from testifying as to the truth of any facts which were elicited from the plaintiff on cross-examination, but that the defendant was not entitled to obtain from the witness a disclosure of what he had ascertained on the examination of the woman while she was his patient. The plaintiff, upon her direct examination, had testified that on the 2d day of December, 1893, which was about six weeks after the accident, the accident having happened upon the 17th day of October, 1893, she was admitted to the German Hospital. She then testified : “I was entered at the German Hospital as a patient, and plaster of paris was put on my foot. The plaster of paris was put on my right leg, the leg that was injured. That plaster of paris remained on five weeks. On December 8th, -I was sent to the Isabella Home. . * * * 1 stayed at the Isabella Home five weeks, and was then sent back to the German Hospital, where I was operated on. The plaster of paris was removed from my right leg when I came to the German Hospital the second time. * * * .When they removed the plaster of paris at the German Hospital they operated on me. They removed some particles of bone; my leg was cut; I saw where it was cut. * * * After that it was bandaged. Every other day the bandages were removed and fresh ones put on. * * * I — 485 — remained at the German Hospital, after being brought there from the Isabella Home, about a year and a half altogether. During that time I was operated on six times. At each of these operations they removed pieces of bone from my leg. After each operation I noticed that my limb had been cut at the ankle. "x" * * After every operation I was in bed about four weeks. During the intervals between the operations I was in bed or sitting up and moving around. I moved around with the aid of crutches; I used these constantly under the advice of the physicians in the German Hospital. * * * During the year and a half I was at the German Hospital my limb was bandaged during the entire time. * * * During that time I applied bandages twice a week. I applied carbolic salve under the advice of a physician at the German Hospital.” She further testified on cross-examination that when these six operations were performed, she knew these bones were removed because “ I heard the doctor say that pieces of bone were taken out. I did not know it of my own accord. I heard the doctor say a piece of bone was taken out. * * * Operations were performed on my foot; the first operation on the 9th of February, 1891. There were bones taken out at the last two operations. The only way I know pieces of bone were taken out was when I heard the doctor say so. I don’t know anything about it myself. * * * ” It thus appears that, on the direct examination, the plaintiff testifies as to the operations that were performed upon her at the German Hospital, and as to the treatment she received there and as to what the doctors told her as to what happened at the operations-, and the serious question presented is, whether this testimony of the plaintiff waived the privilege given by section 831 of the Code, and permitted the defendant to call the physician who performed the operation at. the German Hospital to testify exactly to as the truth of the plaintiff’s statement and as to the treatment she received and the operations performed and as to the advice given to her by the operating physician. The ruling of the court was not confined to a direct answer to the question asked and objected to, but the ruling was that the defendant Avas not entitled to interrogate the Avitness as to what he had ascertained upon examining the woman Aviiile she was — 486 — his patient. And this ruling would exclude all testimony of the doctors as to the woman’s condition ; as to the treatment she received ; as to the operations performed by them ; as to whether or not pieces of bones were only taken from her ankle during the operation, and as to the advice the physician gave her as to her future treatment. The physician could not contradict the plaintiff’s statements without testifying as to the information he had acquired while attending the patient in a professional capacity, and which was necessary to enable him to act in that capacity. The testimony of the physician would clearly be incompetent under section 834 of the Code, unless the testimony given by the plaintiff as to what took place at the hospital and in relation to the treatment that she received was a-waiver of this privilege. By section 836 of the Code it is provided : “ That the last three sections (including section 834 now under consideration) apply to any examination of a person as a witness unless the provisions thereof are expressly waived upon the trial or examination by the person confessing, the patient or the client.” What will constitute a waiver of this privilege given to the patient is not prescribed, and must be determined as a question of fact in each particular case from the acts of the plaintiff during the conduct of the trial. After considerable conflict as to the effect of a waiver when once made, it seems to have been settled by the Court of Appeals, in the case of Morris v. New York, Ontario & W. Ry. Co. (148 N. Y. 92), that a waiver once made is general and not special, and its effect cannot be limited to a particular purpose or person. The court, in disposing of that question, says : “ In this case it wras the privilege of the plaintiff to insist that both physicians should remain silent as to all information they obtained at the consultation, but she waived this privilege when she called Dr. Payne as a witness and required him to disclose it. The plaintiff could not sever her privilege and waive it in part and retain it in part. If she waived it at all it then ceased to exist, not partially, but entirely. The testimony of Dr. Payne having been given in her behalf, every reason for excluding that of his associate ceased. The whole question turns upon the legal consequences of the plaintiff’s act in calling one of the physicians as a witness. She then • completely uncovered and made public what before was private and confidential. It amounted — 487 — to a consent on her part that all who were present at the interview might speak freely as to what took place. The seal of confidence was removed entirely, not merely broken into two parts, and one part removed and the other retained.” And after citing the case of McKinney v. Grand St., etc., R. R. Co. (104 N. Y. 352), the court concludes: “The reasoning of Chief Justice Huger, in support of these propositions in that case, is applicable here. It furnishes a safe basis for holding that- when a waiver is once made it is general and not special, and its effect cannot properly be limited to a particular purpose or a particular person. After the information has once been made public no further injury can be inflicted upon such rights and interests of the patient as the statute was intended to protect, by its repetition at another time or by another person.” Did the plaintiff, by her testimony detailing the operations that were performed upon her at the hospital by the physicians; the treatment she then received; the statement of the physician as to the fact of the operation and as to the advice he gave to the patient, operate as a waiver of her privilege to exclude the testimony of the physician who performed the operation and who gave the advice ? The waiver of the privilege cannot be limited to a particular purpose or a particular person, and if the plaintiff, by so testifying on her direct examination, waived this privilege, then it was competent for the physician to testify. We think it clear upon principle and authority that she did. She testified generally as to what happened at the hospital; as to what the physicians did in operating upon her; as to their treatment before and after the operation. By this testimony she detailed the occurrences that happened at the hospital during the time of the examination by the physicians during the time the operations were performed, and during the subsequent treatment of the physicians. We must adopt one of two principles in cases of this character : Either to allow the plaintiff to testify as to the operations that were performed, and as to what happened at the hospital while she was under treatment, and not allow testimony to contradict her statements, or else we must hold that by such testimony she waived the privilege that entitled her to object to the testimony of the only person who could contradict her, giving an account of what actually happened, and contradicting her testimony. If these physicians — 488 — who attended her at the hospital cannot testify as to what happened at the hospital, as to the operations performed and the treatment prescribed, it is clear that there is no one else who can. The condition would be that, the plaintiff could testify to what she pleased as to the treatment she received without danger of contradiction. If this contention of the plaintiff is sustained, the plaintiff was entirely safe in testifying to anything that i't pleased her to say as to what happened to her, or was done to her, at the hospital, for the mouth of the only witness that could contradict her is silenced by this section of the Code cited. The reasoning of the Court of Appeals in the case- of Morris v. N. Y., Ontario & W. Ry. Co. (supra) applies with full force to this contention : £‘ If this is not so, the statute would seem to be a serious obstacle in such cases to the attainment of truth and justice. The proposition that a patient who has retained or employed two or more professional men, under such circumstances that none of them are permitted to disclose the information thus obtained, except with his consent, can call one of them as a witness to disclose what took place when all were present, and at the same time enjoin silence on all the rest, appears to be so unfair and unreasonable that it challenges investigation before accepting it as a rule of law.” And it would appear to be equally unfair and unreasonable to allow a plaintiff, the one most interested in the recovery, to testify to what took place at the time of the examination by the physicians, or of the operations that were performed or the treatment received, and at the same time enjoin silence upon the physician. A physician, when called, may be said to be, under ordinary circumstances, a disinterested witness. His professional position and his reputation would of themselves be a pledge for his not intentional])' violating his oath, and generally he •would have no great object in making a false statement as to the result of his investigations, while his professional knowledge would ■enable him to state correctly the result of his investigations and the treatment he prescribed or the operations he performed. In the case, however, of a plaintiff, irrespective of the interest that he would have in coloring the testimony to suit his case, his lack of professional knowledge would expose him to mistakes in testifying, •and would make it quite possible, with the utmost good faith on the part of the party testifying, that the testimony would be grossly — 489 — misleading. It must be apparent that such a rule would work the greatest injustice, and would expose the defendant to danger on account of the fact that the rule would prevent him from examining into the truth of the plaintiff’s statements. The question was presented at the late General Term in this department in the case of Marx v. Manhattan Ry. Co. (56 Hun, 575), and it seems to me that the opinion of the presiding justice is a most satisfactory solution of the question. The conclusion there stated by him seems to me to be unassailable. As therein said : “ It seems to us clear that, having thus himself gone into the privileged domain to get evidence upon his own behalf he cannot prevent the defendant from assailing such evidence by the only testimony available for that purpose.” In commenting upon this case Judge O'Brien, in the case of Morris v. N. Y., Ontario & W. Ry. Co., says: “ The other (Marx v. Manhattan Ry. Co.) may also be open to some doubt, and both are cited, not as controlling authority, but in order to show the views that very able jurists have entertained with respect to the construction of the statute.” This remark does not appear to have been made for the purpose of disapproving or overruling the case, but simply to avoid the conclusion that the citation of the case would be considered as an approval of it. And upon consideration it seems to me that, applying the principle established in the case of Morris v. N. Y., Ontario & W. Ry. Co., it necessarily follows that the testimony of a party as to the result of the physician’s examination is as effectual as a waiver as the examination of one physician who was present. Applying, therefore, the rule of the Morris case, that if the privilege is once waived by the patient, the waiver extends to the whole professional conduct of the physician, it must follow that the plaintiff, having submitted evidence, whether it be the testimony of the'plaintiff herself or of another witness present, of the transaction between the patient and the physician took place, waived the privilege, and the truth of what happened and what was ascertained by the physician in his examination and the treatment of the patient can be testified to by the physician. It is not necessary for ns to determine whether or not the defendant, by calling from the plaintiff on cross-examination the details of the transaction, would then be allowed to contradict such details by an examination of the physician. It might well be that the defendant, having made the plaintiff his witness for that purpose, would — 490 — not, under the ordinary rules applicable to the examination of witnesses, be allowed to contradict his testimony; or even if this rule did not apply it might well be that the plaintiff did not waive the privilege in answering the defendant’s questions on cross-examination. But in this case the important facts were the treatment of the plaintiff at the hospital, and the operations performed upon her there, or the advice given to her. On direct examination she had testified as to wdiat the doctors had done to her while under treatment at the hospital, and of what they had said to her there, and her cross-examination was only as to what she had testified to on her direct examination, the only new fact elicited being the name of the physician to whom she referred as the physician who had operated upon her. We think this testimony on the part of the plaintiff in naming the physician was a waiver of her privilege to exclude the testimony of the operating physician ; and the mere fact that she named him on cross examination would not have the effect of retracting that waiver which had been already effectuated. The physician would certainly be allowed to contradict the fact testified to by plaintiff. It seems to me that to allow a party to an action to testify as to the treatment she had received from the physician, and the operations he had performed upon her, and then hold that the physician was not to be allowed to testify as to the truth of her statements, would be to place the defendant in an action of this character entirely at the mercy of the person making the claim against him. We think, therefore, that it was error to exclude the testimony of this physician as to the condition of the plaintiff when she came to the hospital, and as to the. operations he performed upon her and the result of these operations. Without passing upon the other questions presented, we think the judgment should be reversed and a new trial granted, with costs to the appellant to abide the event. Van Brunt, P. J., and Barrett, J., concurred; Rumsey and McLaughlin, JJ., dissented.