#### Paul Mizak, Plaintiff, *v.*The Carborundum Co., Defendant.

(Supreme Court, Niagara Special Term,

January, 1912.)

Witnesses — Disqualification by reason of confidential relation — Between physician and patient — Physical examination of plaintiff — Examination before trial.

Under section 873 of the Code of Civil Procedure, which provides for the physical examination of the plaintiff in an action for personal injuries, the court may not require the defendant’s physicians to make and file a report of their examination.

The provisions of said section 873 do not contemplate any examination of the examining physicians before the referee or that they make and file a report but only that they would be expected to testify on the trial like other witnesses if called by either party.

To justify an order for an examination it must appear that defendant is ignorant of the nature and extent of the injuries complained of and the court must protect the plaintiff from disreputable or objectionable handling.

Where the nature of the proposed examination as by the administration of • anesthetics or drops of atropine in the eye might possibly endanger the plaintiff’s health, the court will not require the hazard to be taken if the plaintiff objects; other directions and restrictions as to the making of the examination may be imposed. *•*

A physician designated by the court under section 873 of the Code of Civil Procedure to make a physical examination of plaintiff in an action to recover for personal injuries takes no oath and is entitled to no statutory fee, and, being under no obligation to act until employed by the defendant, he cannot be compelled as an officer of the court to make a report of the examination made by him.

Application for an order amending the order for the physical examination of plaintiff, made on defendant’s application, under Code Ciy. Pro., § 873, by requiring the physicians making such examination to report in writing the results thereof and to file such report in ¡Niagara county clerk’s office.

Augustus Thihaudeau, for plaintiff.

Alfred W. Gray, for defendant.

*206PbvuD, J.

Defendant obtained the usual order for the medical examination of plaintiff before trial, under the Code of Civil Procedure, section 873. Dr. Wilson, named in the order to make the examination, was employed by defendant for that purpose. He made the examination,,but he refuses to disclose to plaintiff’s attorney what he learned as a result thereof. Plaintiff now moves for an order requiring him to make and file a report of such examination.

Section 873 of the Code of Civil Procedure provides that: *“*such examination shall be had and made under such restrictions and directions as to the court or judge shall seem proper.”

It is urged, that this provision authorizes, at least, the court to require such report to be made. Under the terms of the section, “ The experts are not required to reduce anything to writing or to make any report to the court, and no provision is made for a record by any one.” O’Brien, J., in Lyon v. Manhattan R. Co., 142 N. Y. 304. And it has been held that the court has no power to require that the evidence of the physicians be taken by the referee. Potter v. Village of Hammondsport, 112 App. Div. 91.

Common practice in these cases, as I have observed it, seems to sustain the rule formulated by Ingraham, J., in Wood v. Hoffman Co., 121 App. Div. 640, where he says: “ The knowledge 'acquired by the physician during the ex-, animation is no different from the knowledge acquired by a physician who examines a patient under other circumstances, and any party can procure the testimony of this physician by calling him upon the trial.”

As is well known, orders for these physicial examinations, made without statutory authority, were vigorously condemned as an arbitrary and unwarranted extension of the.power of the court in McQuigan v. D. L. & W. R. R. Co., 129 N. Y. 50, following Union Pacific R. R. Co. v. Botsford, 141 U. S. 250. These holdings were based on the sacred right of the individual to be let alone — the inviolability of the person — but the amendment to the Code permitting the court to order such examinations (Laws of 1893, chap. 721) was upheld as constitutional in Lyon v. Manhattan R. Co., 142 N. Y. 298, *207and, for nearly twenty years, plaintiffs in personal injury cases have been required, almost as matter of course, to submit to a physical examination by physicians appointed by the court at the instance of the defendant, to qualify them as witnesses for the defense on the trial, if so needed.

Judge O’Brien said in the Lyon Case, *supra,*“ The power conferred by the amendment should never be used in such a way as to leave any doubt as to the fairness and good faith of the proceeding, otherwise it may prove to be a sword instead of a shield. It should be a fair and open inquiry after truth, in which both sides are or may be actors. If it is used only for the purpose of enabling the defendant to prepare expert witnesses to give testimony at the trial it will be hardly possible to keep the fact from the jury, and it is easy enough to see how such an element in the case might be used to excite sympathy, stimulate prejudices, and in some cases possibly to enhance damages.”

But experience teaches that a fairly conducted, open examination of plaintiff, by reputable physicians, at the instance of defendant, is of the greatest value, not only as a protection of the defendant from unfounded claims, but also, in many cases, as a protection of the plaintiff from the imputation of malingering and perjury. .

This examination is not an absolute right. It must appear that the defendant is “ ignorant of the nature and extent of the injuries complained of.” The court must protect the plaintiff from disreputable or objectionable handling. A woman plaintiff may not be required to submit to an examination, except by physician^ and surgeons of her own sex. Potter v. Village of Hammondsport, *supra.*When the nature of the proposed examination, as by the administration of anaesthetics or drops of atropine in the eye, might possibly endanger the plaintiff’s health, the court will not require the hazard to be taken if the plaintiff objects; other directions and restrictions as to the making of the examination may be imposed.

Subject to these qualifications, the language of Williams, J., in the Potter case, *supra,*indicates, I think, the legislative intent. He says: “ It seems to us the defendant should be *208permitted to have its own physicians or surgeons, the persons it would rely upon to aid it in the trial, make the examination, providing they are reputable and not personally objecr tionable to the plaintiff.”

Plaintiff’s physicians file no report, are subject to no examination: before trial, do not disclose their knowledge or information to the defendant without the plaintiff’s consent. They give their evidence in court upon the trial. A defendant in a negligence case may not be compelled to disclose before trial what the physical examination of plaintiff by its physicians reveals, any more than it may be compelled to disclose what it expects to prove by its other witnesses. Equality in this respect is fair. The real purpose of the examination is to discover to defendant *“*the nature and extent of the injuries complained of.” The section gives the court no express authority to. require the defendant’s physicians to disclose before the trial the results of their examination of plaintiff, and I shall not venture to imply such authority. The failure of the Legislature to require any examination of the examining physicians before the referee, or any report to be made and filed by them, is, to my mind, satisfactory evidence that nothing of the kind was contemplated when the amendment of 1853 was enacted, and that it was expected that such physicians would merely testify, like other witnesses, on the trial,' if called by either party.

It is urged by plaintiff that Dr. Wilson is an officer of the court, by virtue of his designation as an examining physician and surgeon under the order herein, and that the court, therefore, has inherent power to order him to make such report. But the physicians and surgeons designated under section 873 take no oath of office and have no statutory fees. While the court may, in its discretion, designate physicians and surgeons not nominated by the'defendant, they are under no duty or obligation to act until defendant employs them to make the examination. Thus they necessarily become the employees of •the defendant before they act and, when they act, it is in that capacity. As the- very object of the section would be defeated if they did not thoroughly make the examination and freely and fully impart to defendant the results thereof, they *209should be satisfactory to defendant, provided, always, that there are no objections to their personal character or professional standing or to their availability in a given case. I conclude that they cannot be compelled, as officers of the court, to make a report to it.

Motion denied.