Steinberg v. New York Life Ins. Co.

Decision Date21 November 1933
PartiesSTEINBERG v. NEW YORK LIFE INS. CO.
CourtNew York Court of Appeals Court of Appeals

OPINION TEXT STARTS HERE

Action by Julius Steinberg against the New York Life Insurance Company. From a judgment of the Appellate Division (238 App. Div. 206, 264 N. Y. S. 399), which affirmed a judgment of the Special Term in favor of plaintiff, defendant appeals.

Reversed and new trial granted.

Appeal from Supreme Court, Appellate Division, Third department.

Louis H. Cooke, of New York City, William G. Birmingham, of Liberty, and Kenneth deF. Carpenter, of New York City, for appellant.

Ellsworth Baker and morris M. Oppenheim, both of Monticello, for respondent.

HUBBS, Judge.

The appellant, on December 20, 1928, issued and delivered to the respondent an ordinary life insurance policy for $5,000, with disability and double indemnity benefits. Thereafter, it issued and delivered to respondent three other policies of the same type. Before the first policy was issued, a physical examination of respondent was made by appellant's medical examiner. At the time of the examination, the respondent answered in writting certain questions in regard to his health and prior physical condition. A copy of the questions and answers were attached to the policies as required by section 58 of the Insurance Law (Consol. Laws, c. 28). Two of the questions and the answers thereto were as follows:

‘8. Have you ever consulted a physician or practitioner for or suffered from any ailment or disease of * * * the heart, blood vessels or lungs? No.’

‘10. Have you ever consulted a physician or practitioner for any ailment or disease not included in your above answers? No.’

Thereafter, three supplemental applications for insurance were made by the insured. The four policies were issued and delivered by the appellant in reliance upon the answers made by respondent to the questions which he answered as part of the medical examination including the questions and answers quoted above. The two-year incontestability clauses contained in the policies prevent any defense as to the ordinary life insurance provisions in the policies, but do not apply to the disability and double indemnity benefits.

This action was brought upon the policies to recover disability benefits, and for certain other relief which is immaterial at this time. The appellant's answer so far as material at this time alleged as a defense that answers to questions numbered eight and ten heretofore quoted were false in that prior to the date of the application, plaintiff had suffered from pulmonary tuberculosis on account of which he had consulted, been examined and treated by, physicians. At the trial, respondent introduced the policies in evidence and called as a witness a physician who had examined him for the first time on the day of the trial. He testified that he found from such examination that the insured was then suffering from moderately advanced active pulmonary tuberculosis. He testified that in his opinion he had suffered from that disease and that the same condition had existed since January 1, 1932, seven months before the trial, and that he had been totally disabled from such disease during that period.

The appellant called two physicians each of whom testified that prior to December, 1928, the respondent had consulted him in a professional capacity on several occasions, and that on those occasions he was sick.

The doctors were not permitted to testify that he was suffering from any ailment or disease or to state from what he was suffering or give any testimony other than that he was sick. The court sustained an objection to any other testimony on the part of the doctors upon the ground that such testimony was prohibited by section 352 of the Civil Practice Act, which reads: ‘A person duly authorized to practice physic or surgery, or a professional or registered nurse, shall not be allowed to disclose any information which he acquired in attending a patient in a professional capacity, and which was necessary to enable him to act in that capacity.’

Section 354 provides that the prohibition contained in section 352 may be expressly waived upon a trial by the patient. It does not specify what shall constitute a waiver or how it shall be manifested.

At common law, an attending physician who had treated a patient could be compelled upon a trial to disclose the information which he acquired during such treatment. The Revised Statutes of 1829 (2 R. S. p. 406, § 73) provided that a physician should not disclose any information acquired by him in treating a patient. That statute was embodied in section 834 of the Code of Civil Procedure and has become section 352 of the Civil Practice Act.

In considering the application of the section under the facts of this case, the purpose of the statute and the public policy evidenced by the enactment should be appreciated. Its purpose is to protect those who are required to consult physicians from the disclosure of secrets imparted to them, to protect the relationship of patient and physician, and to prevent physicians from disclosing information which might result in humiliation, embarrassment, or disgrace to patients. When the original statute was enacted, it was believed that the benefits which would accrue from its enactment by preventing disclosure by physicians of information gained in consultation and by inspiring confidence between patients and their physicians would outweigh any injustice which might result in particular cases caused by the exclusion of testimony by physicians at trials.

The privilege is personal to the patient and may be waived by him upon the trial of an action in open court.

The question in this case is whether the respondent in calling a physician as a witness and thereby disclosing the fact that he was suffering from moderately advanced pulmonary tuberculosis on January 1, 1932, constituted a waiver of the privilege so that the appellant should have been permitted to introduce the testimony of other physicians who had treated him for the purpose of establishing that he was suffering from the same disease prior to December, 1928, and had been treated by physicians for that disease.

In the application the question was asked whether the applicant had ever consulted a physician in regard to various diseases, and he answered ‘No.’ Then followed question 10, heretofore quoted, in which he was asked if he had ever consulted a physician for any ailment or disease not included in the questions which he had already answered, and his answer...

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71 cases
  • People v. Hamacher, Docket No. 81202
    • United States
    • Michigan Supreme Court
    • March 30, 1989
    ...that the insured, by calling a treating physician, had waived the privilege as to other treating physicians. Steinberg v. New York Life Ins. Co., 263 N.Y. 45, 188 N.E. 152 (1933).21 McCormick, Evidence (3d ed), Sec. 72, p 171.22 "Probably the policy of encouraging confidences is not the pri......
  • People v. Preston
    • United States
    • New York County Court
    • July 22, 1958
    ...N.Y. 1, 85 N.E. 824, 18 L.R.A.,N.S., 898. He may do so by voluntarily calling the physician as a witness. Steinberg v. New York Life Ins. Co., 263 N.Y. 45, 188 N.E. 152, 90 A.L.R. 642. These are the most common methods of implied waiver. There are (5) Who may claim the privilege? Technicall......
  • Terry v. New York Life Ins. Co.
    • United States
    • U.S. Court of Appeals — Eighth Circuit
    • June 19, 1939
    ...Co., 127 Pa.Super. 127, 191 A. 626; Chambers v. New York Life Ins. Co., 148 Misc. 561, 265 N.Y.S. 217; Steinberg v. New York Life Ins. Co., 263 N.Y. 45, 188 N.E. 152, 90 A.L.R. 642. Similar or identical clauses were held not ambiguous in Pyramid Life Ins. Co. v. Selkirk, 5 Cir., 80 F.2d 553......
  • Massachusetts Mutual Life Insurance Co. v. Brei
    • United States
    • U.S. Court of Appeals — Second Circuit
    • November 20, 1962
    ...might result in particular cases caused by the exclusion of testimony by physicians at trials." Steinberg v. New York Life Ins. Co., 263 N.Y. 45, 48-49, 188 N.E. 152, 153, 90 A.L.R. 642 (1933). In an early construction of the predecessor of present § 352,10 the New York Court of Appeals sta......
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9 books & journal articles
  • Table of cases
    • United States
    • James Publishing Practical Law Books Archive New York Objections - 2014 Contents
    • August 2, 2014
    ...1989), §§ 1:60, 1:210 Stay v. Horvath, 177 A.D.2d 897, 576 N.Y.S.2d 908 (3d Dept. 1991), § 14:150 Steinberg v. New York Life Ins. Co., 263 N.Y. 45, 188 N.E. 152 (1933), § 7:90 Steinbuch v. Stern , 2 A.D.3d 709, 770 N.Y.S.2d 106 (2d Dept. 2003), § 16:110 Steiner v. City of New York, 203 A.D.......
  • Privileges
    • United States
    • James Publishing Practical Law Books Archive New York Objections - 2020 Contents
    • August 2, 2020
    ...does not constitute waiver). • Disclosure by a physician witness called by the patient. Steinberg v. New York Life Ins. Co ., 263 N.Y. 45, 188 N.E. 152 (1933). • he defendant in a criminal case raises the insanity defense. People v. Wilkins , 65 N.Y.2d 172, 490 N.Y.S.2d 759 (1985). Once wai......
  • Privileges
    • United States
    • James Publishing Practical Law Books Archive New York Objections - 2015 Contents
    • August 2, 2015
    ...does not constitute waiver). • Disclosure by a physician witness called by the patient. Steinberg v. New York Life Ins. Co ., 263 N.Y. 45, 188 N.E. 152 (1933). • The defendant in a criminal case raises the insanity defense. People v. Wilkins , 65 N.Y.2d 172, 490 N.Y.S.2d 759 (1985). Once wa......
  • Privileges
    • United States
    • James Publishing Practical Law Books Archive New York Objections - 2019 Contents
    • August 2, 2019
    ...does not constitute waiver). • Disclosure by a physician witness called by the patient. Steinberg v. New York Life Ins. Co ., 263 N.Y. 45, 188 N.E. 152 (1933). • he defendant in a criminal case raises the insanity defense. People v. Wilkins , 65 N.Y.2d 172, 490 N.Y.S.2d 759 (1985). Once wai......
  • Request a trial to view additional results

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