Bradshaw v. Iowa Methodist Hospital

• Decision Date: 12 June 1962
• Docket Number: No. 50512,50512
• Parties: Ronald BRADSHAW, Appellee, v. IOWA METHODIST HOSPITAL, Appellant.
• Court: Iowa Supreme Court

Page 816

115 N.W.2d 816

253 Iowa 1360

Ronald BRADSHAW, Appellee, v. IOWA METHODIST HOSPITAL, Appellant.

No. 50512.

Supreme Court of Iowa.

June 12, 1962.

Rehearing Denied July 23, 1962.

Bannister, Carpenter, Ahlers & Cooney, Des Moines, for appellant.

Lex Hawkins, Des Moines, for appellee.

HAYS, Justice.

This is the second appearance of this case in this Court. It is an action for damages based upon the alleged negligence of the defendant and in each instance these has been a verdict for the plaintiff. See Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167.

Appellant's assigned errors include rulings upon admission of testimony on objections based upon Section 622.10, Code of Iowa, I.C.A.; on causation; on instructions; and excessive verdict.

Briefly, plaintiff asserts he was a patient in defendant hospital in March 1957, undergoing physiotherapy treatment following a back operation in October 1956. He asserts that while taking a treatment on March 30, 1957, he was left unattended and sustained a fall which resulted in a permanent disability. More facts will be stated as they may be relevant to the respective alleged errors.

I. Defendant asserts error in the rejection of proffered testimony of Dr. Schupp and Exhibit Z, being plaintiff's hospital records while a patient in the Englewood Hospital in Chicago between April 19th and 23rd, 1957. They were rejected upon the plaintiff's claim of privilege under Section 622.10, Code of Iowa, I.C.A.

This Section, entitled Communications in Professional Confidence, provides as follows: 'No * * * physician, surgeon * * *, who obtains such information by reason of his employment * * * shall be allowed, in giving testimony, to disclose any confidential communication properly entrusted to him in his professional capacity and necessary and proper to enable him to discharge the functions of office according to the usual course of practice * * *. Such prohibition shall not apply to cases where the party in whose favor the same is made waives the rights conferred.' (Italics ours.) We are chiefly concerned with above italicized portion, it being defendant's contention that such rights were waived.

Section 622.10, has been in all Iowa codes since 1851 in substantially its present form. It has been before this Court on numerous occasions from which certain basic rules or constructions have arisen relative thereto. It appears clear both from our own decisions and of other jurisdictions, that its purpose and intent is based upon the thought that such a right will encourage a patient to make a full and frank disclosure of his ailments to his physician free of any fear of disclosure by the physician, as a witness in Court proceedings, of information which might result in his humiliation, embarrassment or disgrace,if such ailments were made public. Pearson v. Butts, 224 Iowa 376, 276 N.W. 65; Newman v. Blom, 249 Iowa 836, 89 N.W.2d 349; 58 Am.Jur., Witnesses, sec. 204; 97 C.J.S. Witnesses § 293; McCormick on Evidence, sec. 101.

It is also generally held that once the relationship of physician and patient is established, (it is so conceded here), the right or privilege thus granted, is personal to the patient and only he may claim or waive the same. McConnell v. City of Osage, 80 Iowa 293, 45 N.W. 550, 8 L.R.A. 778; Burgess v. Sims Durg Co., 114 Iowa 275, 86 N.W. 307, 54 L.R.A. 364; 58 Am.Jur., Witnesses, sec. 438. 'Communications' as used in the statute, means not only what may be said but also information obtained by the physician through personal observation and examination of the patient. Prader v. National Masonic Accident Association, 95 Iowa 149, 63 N.W. 601; Newman v. Blom, 249 Iowa 836, 89 N.W.2d 349, supra.

While it has been the announced policy of this Court to give liberal construction to the statute to effectuate the purpose thereof, we have in more recent years come to the realization that there is a growing tendency to use it in a manner that tends to obscure the truth from the witness stand and to thwart justice, rather than foster it. Justice Bliss, speaking for the Court in Boyles v. Cora, 232 Iowa 822, 848-849, 6 N.W.2d 401, 414, states 'This section, with respect to the privilege character of communications by the patient to the doctor, and observations of the latter by the doctor, particularly within the more recent years, has been criticized as having but little justification for its existence, and of effecting great injury to the cause of justice by the suppression of useful truth, the disclosure of which ordinarily could harm no one', citing Wigmore on Evidence, sec. 2380, wherein it is said the privilege is not to be both a sword and a shield. Also therein appears the following quote from Epstein v. Pennsylvania R. Co., 250 Mo. 1, 156 S.W. 699, 712, 48 L.R.A.,N.S., 394, as follows: 'It is obvious the language of the statute is of such sort that its interpretation and application are troublesome. But, because the task is difficult shall it be made easy by ignoring it, or by applying the statute automatically to every case and all information? On the one hand, it might be so construed as to fritter away the provisions of the law. On the other hand, it might be so literally construed as to work great mischief in the administration of justice. The ultimate object of every judicial inquiry is to get at the truth. Therefore no rule of law standing in the way of getting at the truth should be loosely or mechanically applied. The application of such law must be with discrimination, so that it may have the legislative effect intended for it, and yet the investigation of the truth be not unnecessarily thwarted.' (Italics ours.)

The statute itself provides that the privilege may be waived but is silent as to how it may be waived. This Court has stated that such a waiver may result by the patient's own testimony, by testimony he may offer by his own physician, or by the testimony of his other witnesses. Woods v. Incorporated Town of Lisbon, 150 Iowa 433, 130 N.W. 372; Jacobs v. City of Cedar Rapids, 181 Iowa 407, 164 N.W. 891. One other observation before getting into the facts of the instant case. In Johnson v. Kinney, 232 Iowa 1016, 1023, 7 N.W.2d 188, 192, 144 A.L.R. 997, we said 'We have frequently said that testimony on cross examination is not voluntary in the sense that it constitutes a waiver of the statutory privilege', citing authorities. The opinion does not show what was said on direct examination of the plaintiff but merely that appellee testified * * * on cross examination. We also have another rule of law dealing with the right of a litigant to cross examine. In Eno v. Adair Co. Mut. Ins. Ass'n, 229 Iowa 249, 257, 294 N.W. 323, 327, we approved the rule that 'It is also quite generally held that where the testimony of a witness on direct examination makes a prima facie case, or creates a presumption or inference as to the existence of a fact not directly testified to, the witness may be cross-examined to rebut such prima facie proof, presumption or inference.' (Italics ours.) See also, Witmer v. District Court of Polk County, 155 Iowa 244, 136 N.W. 113; Glassman v. Chicago, R. I. & P. Ry., 166 Iowa 254, 147 N.W. 757; Schulte v. Ideal Food Products Co., 203 Iowa 676, 213 N.W. 431; Trachta v. Iowa State Highway Commission, 249 Iowa 374, 86 N.W.2d 849; Wheatley v. Heideman, 251 Iowa 695, 710, 102 N.W.2d 343; 58 Am.Jur., Witnesses, sec. 632. We think the correct rule as applied to a waiver under Section 622.10, (physician and patient), is that where the patient on direct examination, as his own witness, testified to certain facts such as would bring into effect the rule announced in Eno v. Adair Co. Mut. Ins. Ass'n, supra, such testimony creates a waiver of Section 622.10 so as to permit competent evidence by his adversary, either by cross examination or by his own witnesses, to rebut or refute the presumption or inference left by the patient's direct testimony. Such a rule is not necessarily in conflict with the case of Johnson v. Kinney, supra, and clearly attains justice without nullifying the statute. 97 C.J.S. Witnesses § 310c.

Now as to the facts of the instant case. Plaintiff, a millwright by trade, testified he was injured in September 1956 by a fall while employed at the Maytag Co. in Newton, Iowa. He placed himself in the care of Doctors Schupp and McGarvey, of Des Moines, Iowa, and was placed in defendant hospital. They were partners in the practice. Dr. Bakody, a neurosurgeon of Des Moines, was called into consultation and in October 1956, he operated and removed a protruded and degenerated intervertebral disk material at the fifth lumbar level. He also examined at the fourth level and found no injury there. Plaintiff left the hospital about a week later. He continued to receive post operative treatments under the supervision of the three doctors, Schupp, McGarvey and Bakody. On March 30, 1957, while taking physiotherapy treatments at defendant hospital, he fell and sustained the injury alleged to have caused his disability. He was released April 4, 1957, in an improved condition. April 18 he went into Chicago and on the 19th and while in a cafe, he stooped to pick up an object from the floor and suffered intense pain in his back and legs. He was taken to Englewood Hospital as an emergency case, where he was treated for four days and released. He returned to Iowa and consulted with Dr. Schupp at least as late as April 30, 1957. He made two trips to the Mayo Clinic in Rochester, Minn., and in December 1957, Drs. Johnson and Miller, of the clinic, operated for a reptured intervertebral disk at the fourth level and a spinal fusion was done. His testimony is replete with statements of his constant pain and suffering, including the Chicago episode.

Dr. Johnson, as his witness, testified as to his condition and the operation. Dr. Borman, an osteopathic physician, of Des Moines, was his witness. He saw him twice in ...