City & County of San Francisco v. Superior Court In andFor City and County of San Francisco

Decision Date15 May 1951
Citation37 Cal.2d 227,25 A.L.R.2d 1418,231 P.2d 26
CourtCalifornia Supreme Court
Parties, 25 A.L.R.2d 1418 CITY & COUNTY OF SAN FRANCISCO v. SUPERIOR COURT IN AND FOR CITY & COUNTY OF SAN FRANCISCO et al. S. F. 18264.

Dion R. Holm, City Atty., and George E. Baglin, Deputy City Atty., San Francisco, for petitioner.

Hoberg & Finger, John Finger, Peart, Baraty & Hassard, and George Smith, San Francisco, for respondents and real party in interest.

TRAYNOR, Justice.

James Hession brought an action for personal injuries against the City and County of San Francisco and the Western Pacific Railroad Company. He alleged that he suffered brain concussion, nerve root damage, and nervous shock. At the request of Hession's attorneys, Dr. Joseph Catton, a physician specializing in nervous and mental diseases, twice gave Hession a neurological and psychiatric examination. In his deposition Dr. Catton testified that there was no physician-patient relationship between him and Hession; that he did not advise or treat Hession; that the sole purpose of the examination was to aid Hession's attorneys in the preparation of a lawsuit for Hession; and that he was the agent of the attorneys. He refused to answer questions regarding Hession's condition on the grounds that the information sought was privileged under subdivision 2 and 4 of Section 1881 of the Code of Civil Procedure and that the questions called for 'the use of faculties of a physician, neurologist, and psychiatrist and for an opinion based thereon, which opinion is a portion of my property which I do not wish to be deprived of without due compensation and arrangement having been made in relation thereto.' Hession's counsel also claimed that the information was privileged.

Petitioner, the City and County of San Francisco, seeks a writ of mandamus to compel respondent court to order Dr. Catton to answer the questions.

The Physician-Patient Privilege

Dr. Catton testified that 'there was no physician-patient relationship in the sense that I was examining him for the purpose of giving him advice or treatment, * * * nor did I at any time give him any such advice or treatment; so that there wasn't that usual physician-patient relationship.' He also filed an affidavit in which he averred that he 'has not at any time prescribed for or treated the said James Hession as a patient or otherwise.' Under such circumstances there is no physician-patient privilege under subdivision 4 of section 1881 of the Code of Civil Procedure. 1 That privilege cannot be invoked when no treatment is contemplated or given. 'The confidence that is protected is only that which is given to a professional physician during a consultation with a view to curative treatment; for it is that relation only which the law desires to facilitate.' 8 Wigmore, Evidence, 3d ed. 1940, § 2382, p. 817; In re Baird's Estate, 173 Cal. 617, 623-624, 160 P. 1078; In re Estate of Black, 132 Cal. 392, 393, 396, 64 P. 695; Harrison v. Sutter St. Ry. Co., 116 Cal. 156, 166, 47 P. 1019; People v. Dutton, 62 Cal.App.2d 862, 863, 145 P.2d 676; Keller v. Gerber, 49 Cal.App. 515, 524, 193 P. 809; see 58 Am.Jur., Witnesses, § 415, p. 237; Bassil v. Ford Motor Co., 278 Mich. 173, 270 N.W. 258, 107 A.L.R. 1495.

Even if there had been a physicianpatient relationship, the privilege would be waived under section 1881(4) by Hession's bringing the action for personal injuries. Phillips v. Powell, 210 Cal. 39, 42, 290 P. 441; Ballard v. Pacific Greyhound Lines, 28 Cal.2d 357, 360, 170 P.2d 465; see also Moreno v. New Guadalupe Mining Co., 35 Cal.App. 744, 754-755, 170 P. 1088.

Relying on Webb v. Francis J. Lewald Coal Co., 214 Cal. 182, 4 P.2d 532, 77 A.L.R. 675, respondent and Hession, the real party in interest, contend that since the privilege set forth in section 1881(4) is phrased in the language 'prescribe or act for the patient' and the personal-injury-litigant exception is phrased in the language 'prescribed for or treated said person' the exception to the privilege in the case of personal-injury litigants is not so broad as the privilege. (Italics added.) They conclude that the privilege exists here because Dr. Catton 'acted' for Hession when he examined him and delivered to his counsel a written report of his findings, but that the exception cannot apply because Dr. Catton did not prescribe for or treat Hession. The Webb case clearly supports this conclusion, but a re-examination of that case compels the conclusion that this ground of the decision must be disapproved.

The whole purpose of the privilege is to preclude the humiliation of the patient that might follow disclosure of his ailments. When the patient himself discloses those ailments by bringing an action in which they are in issue, there is no longer any reason for the privilege. The patientlitigant exception precludes one who has placed in issue his physical condition from invoking the privilege on the ground that disclosure of his condition would cause him humiliation. He cannot have his cake and eat it too.

The view taken in the Webb case defeats the purpose of the statute by seizing upon the phrase 'act for the patient' and giving it a meaning that cannot reasonably be attributed to the Legislature. The statute reads: 'A licensed physician or surgeon can not, without the consent of his patient, be examined in a civil action, as to any information acquired in attending the patient, which was necessary to enable him to prescribe or act for the patient.' (Italics added.) 'Prescribe' is the correlative of 'physician'; a physician prescribes for a patient. 'Act' is the correlative of 'surgeon'; a surgeon acts for a patient. A Missouri statute makes this clear by providing '* * * which information was necessary to enable him to prescribe for such patient as a physician, or do any act for him as a surgeon'. Mo.R.S.1949, § 491.060(5). The California statute embodies the same meaning by using the nouns physician or surgeon in the disjunctive and the verb applicable to each prescribe or act likewise in the disjunctive. Even if 'act' were construed as relative to a physician as well as to a surgeon, the privilege could still not be extended to personal-injury litigants that the statute excepts. The statute refers to 'information acquired in attending the patient'. (Italics added) A physician attends a patient to treat, prescribe for, or act for him to prevent, palliate, or cure an ailment. If the person examined is not a patient there is no physician-patient relationship and therefore no physician-patient privilege.

Even if there is a physician-patient relationship, it is settled that the privilege given by the statute is that of the patient, not that of the physician, and that if the patient does not claim the privilege, it is waived. Hirschberg v. Southern Pacific Co., 180 Cal. 774, 777, 183 P. 141; Lissak v. Crocker Estate Co., 119 Cal. 442, 445, 51 P. 688; Wheelock v. Godfrey, 100 Cal. 578, 587, 35 P. 317; San Francisco Credit Clearing House v. MacDonald, 18 Cal.App. 212, 219, 122 P. 964; see, 20 Calif.L.Rev. 302, 311; 8 Wigmore, supra, § 2386, p. 828. The view taken in the Webb case, however, would enable the physician to defeat the purpose of the statute by claiming the privilege even though the patient does not. The plaintiff in that case, the only one who could assert the privilege, did not do so; it was the physician who asserted it. 'Respondent's counsel, however, remained silent and expressly stated to the court that they would take no part in this phase of the proceeding.' Webb v. Francis J. Lewald Coal Co., supra, 214 Cal. at page 185, 4 P.2d at page 533.

The Contention That Dr. Catton Need Not Testify if He Is Not Paid More Than the Ordinary Witness Fee

Doctor Catton asserted a privilege personal to himself, a privilege not to testify to knowledge and opinions that were the result of his special learning without payment of more that the ordinary witness fee. Petitioner asks him to testify, not by reason of his expertness in a special field, but because of his knowledge of specific facts as to Hession's condition, facts pertinent to an issue to be tried. He is like any other witness with knowledge of such facts; it is immaterial that he discovered them by reason of his special training. In testifying as a witness he would simply be imparting information relevant to the issue, as he would had he been a witness to the accident in which Hession was injured. '(A) physician who has acquired knowledge of a patient or of specific facts in connection with a patient may be called upon to testify to those facts without any compensation other than the ordinary witness receives for attendance upon court.' McClenahan v. Keyes, 188 Cal. 574, 583, 206 P. 454, 458; see also, People v. Barnes, 111 Cal.App. 605, 610, 295 P. 1045; People v. Conte, 17 Cal.App. 771, 784, 122 P. 450, 457, Ex Parte Dement, 53 Ala. 389, 25 Am.Rep. 611; Dixon v. People, 168 Ill. 179, 48 N.E. 108, 39 L.R.A. 116; Summers v. State, 5 Tex.App. 365; Philler v. Waukesha County, 139 Wis. 211, 120 N.W. 829, 25 L.R.A.,N.S., 1040; 8 Wigmore, supra, § 2203, p. 134; 3 So.Cal.L.Rev. 448; 39 Yale L.J. 761; Pennsylvania Co. for Insurances v. City of Philadelphia, 262 Pa. 439, 105 A. 630, 2 A.L.R. 1576, 1577.

The Attorney-Client Privilege

Although Dr. Catton can invoke no privilege of his own and there was no physician-patient privilege in this case, we have concluded that Dr. Catton was an intermediate agent for communication between Hession and his attorneys and that Hession may therefore invoke the attorneyclient privilege under section 1881, subdivision (2) of the Code of Civil Procedure. That subdivision reads: 'An attorney, can not, without the consent of his client, be examined as to any communication made by the client to him, or his advice given thereon in the course of professional employment; nor can an attorney's secretary, stenographer, or clerk be examined,...

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