THE DOCTOR AS A WITNESS
Authors: J E TRACY
Journal: Annals of Internal Medicine (1946)

Article1 May 1946THE DOCTOR AS A WITNESSJOHN E. TRACY, A.B., LL.D.JOHN E. TRACY, A.B., LL.D.Search for more papers by this authorAuthor, Article, and Disclosure Informationhttps://doi.org/10.7326/0003-4819-24-5-837 SectionsAboutPDF ToolsAdd to favoritesDownload CitationsTrack CitationsPermissions ShareFacebookTwitterLinkedInRedditEmail ExcerptTHE DIFFERENT CAPACITIES IN WHICH THE DOCTOR MAY BE CALLED TO TESTIFYThere are three different sets of circumstances under which a doctor may be called as a witness and the rights, privileges and duties of the doctor will be found to vary with those circumstances. They are as follows:1. Where the doctor is possessed of information relevant to some issue in the case, which information he acquired in other than a professional capacity. Example, the doctor, while driving to make a call, sees an automobile hit a pedestrian. The pedestrian sues the automobile owner for damages for negligence....Notes1. New York Civil Practice Act No. 352. The reader's attention is drawn to the fact that in the Symposium on "Scientific Proof and Relations of Law and Medicine" (1st ser., 1943), Professor Zachariah Chafee, Jr. contributed a paper entitled: "Privileged Communications: Is Justice Served or Obstructed by Closing the Doctor's Mouth on the Witness Stand?" Yale Law Journal 52: 607, June, 1943. The author pointed out that seventeen states . . . "seem to preserve the view of the English common law that there is no legal check upon the revelation of medical secrets," so that "On the witness stand, at all events, a doctor in these states must tell all he knows," these states being as follows: Alabama, Connecticut, Delaware, Florida, Georgia, Illinois, Maine, Maryland, Massachusetts, New Hampshire, New Jersey, Rhode Island, South Carolina, Tennessee, Texas, Vermont, and Virginia. Professor Chafee also lists the states which have passed statutes of various sorts similar to the New York law, and notes the exceptions to the general prohibition contained in the various enactments, saying: "The ensuing list mentions only the date of the original enactment without regard to subsequent amendments. The statutes vary in their terms, particularly as to waiver of the privilege. The ensuing list mentions only variations of especial medical interest, including the fact of adoption of the Uniform Narcotic Drug Act (U.N.D.A.): Alaska (1913) (except for insanity); Arizona (1913) (U.N.D.A.); Arkansas (1919); California (1872) (except for mental condition and venereal disease); Canal Zone (1934); Colorado (1921); District of Columbia (1919) (U.N.D.A.); Georgia (1935); Hawaii (1925) (U.N.D.A.); Idaho (1919); Indiana (1926); Iowa (1897) (U.N.D.A.); Kansas (1923); Kentucky 1915); Louisiana (1928); Maryland (1935) (U.N.D.A.).; Michigan (1915) (except for illegal marriage of persons sexually diseased); Minnesota (1913) (except for bastardy); Mississippi (1906); Missouri (1919) (except for abortion); Montana (1935) (U.N.D.A.); Nebraska (1922) (U.N.D.A.); Nevada (1912) (U.N.D.A.); New Mexico (1929) (U.N.D.A.); New York (1828) (except for narcotic investigations); North Carolina (1919) (allows presiding judge of superior court to compel disclosure when necessary to administration of justice, U.N.D.A.); North Dakota (1913); Ohio (1921) (U.N.D.A.); Oklahoma (1931) (U.N.D.A.); Oregon (1920) (U.N.D.A.); Pennsylvania (1895); Philippine Islands (1901); Puerto Rico (1911) (except for malpractice, U.N.D.A.); South Carolina (1934) (U.N.D.A.); South Dakota (1919) (U.N.D.A.); Utah (1917) (U.N.D.A.); Virgin Islands (1920); Washington (1909); West Virginia (1897) (U.N.D.A.); Wisconsin (1919) (except for lunacy and malpractice, U.N.D.A.); Wyoming (1920) (U.N.D.A.)." Chafee, id., pp. 607-8, f.n. 4. He points out that . . . "several of the states recognizing the doctor-patient privilege in general have adopted the Uniform Narcotic Drug Act, which provides in sec. 17, par. 2, that "information communicated to a physician in an effort unlawfully to procure a narcotic drug, or unlawfully to procure the administration of any such drug, shall not be deemed a privileged communication." In a supporting footnote, he says: "This statute has been adopted in the following states and territories, of which those starred in the list do not recognize a general doctor-patient privilege: Arizona, District of Columbia, Hawaii, Iowa, Maryland,* Montana, Nebraska, Nevada, New Mexico, North Carolina, Ohio, Oklahoma, Oregon, Puerto Rico, South Carolina,* South Dakota, Tennessee,* Texas,* Vermont, West Virginia, Wisconsin, Wyoming." Chafee, id., p. 608, f.n. 5. Google Scholar2. In this respect the New York legislation is unique as rarely will such a statute be found to include nurses. Google Scholar3. Wigmore JH: Treatise on Evidence, ed. 3, Little Brown & Co., Boston, 1940, Vol. VIII, p. 817. Google Scholar4. Ibid. Google Scholar5. Id. at p. 818-9. Google Scholar6. Battis v. Chicago, Rock Island & Pacific Ry. Co., 124 Iowa 623, 100 N.W. 543 (1904). A station agent called the company physician to examine a man who had been ejected from a train. Finding a small wound, the doctor dressed it. Held, he could not testify as to anything that the injured man said to him. Google Scholar7. Wigmore JH: loc. cit. supra, no. 3 at p. 823. Google Scholar8. Id. at p. 824. Google Scholar9. Green v. R. Co., 171 N. Y. 201, 63 N.E. 958 (1902). Here there was no claim that the information given was in any way necessary for the doctor to prescribe treatment. Situations can be imagined, however, where the story of how an injury occurred would be important in prescribing treatment, e.g., a wound apparently caused by a bite. Google Scholar10. Perry v. Hannagan, 257 Mich. 120, 241 N.W. 233 (1932). Google Scholar11. Wigmore JH: loc. cit. supra, no. 3 at p. 831. Google Scholar12. Wigmore JH: loc. cit. supra, no. 3 at pp. 830-840. Google Scholar13. Id. at p. 840. Google Scholar14. Id. at pp. 808-810. Google Scholar15. Id. Vol. III at pp. 2-4. The author quotes very appropriately from the great dramatist in Pericles, Act III, Sc. 2. "I ever Have studied physic, through which secret art By turning over authorities I have—Together with my practice—made familiar To me and to my aid the blest infusions." Google Scholar16. Id. at p. 8. Google Scholar17. See again Shakespeare, King John, Act V, Sc. 4. "Have I not hideous death within my view, Retaining but a quantity of life, Which bleeds away, even as a form of wax Resolveth from his figure 'gainst the fire? What in the world should make me now deceive, Since I must lose the use of all deceit? Why should I then be false, since it is true That I must die here, and live hence by truth?" Google Scholar18. Schweitzer SC: Trial Manual for Negligence Actions (2nd ed.), New York, Baker, Voorhis & Co., 1941, p. 829. Google Scholar19. Scott CE: Photographic Evidence, Kansas City, Vernon Law Book Co., 1942, p. 746. Google Scholar20. Id. at pp. 506-514. Google Scholar21. GoldsteinShabat ILW: Medical trial technique, 1942, Chicago, Callaghan & Co., p. 19. Google Scholar22. GobleSmith GHWSee in this Symposium series, : Rights of Compensation for Medical Services. Google Scholar23. GobleSmith Fee arrangements which are contingent on success of the litigant at whose instance the physician testifies, and agreements for a percentage of the damages recovered, are generally held by the courts to be illegal and so void. The reason is that any fee arrangement which gives the expert witness an interest in seeing one party prevail is inconsistent with his obligations to testify truthfully and impartially as an officer of the court. See , id. Google Scholar This content is PDF only. To continue reading please click on the PDF icon. Author, Article, and Disclosure InformationAffiliations: Ann Arbor, Michigan*Received for publication January 18, 1946.†Professor of Law, University of Michigan. PreviousarticleNextarticle Advertisement FiguresReferencesRelatedDetails Metrics 1 May 1946Volume 24, Issue 5Page: 837-862 ePublished: 1 December 2008 Issue Published: 1 May 1946 PDF downloadLoading ...