Collins v. Bair

• Decision Date: 30 March 1971
• Docket Number: 371S77,Nos. 968A152,s. 968A152
• Citation: 268 N.E.2d 95,256 Ind. 230
• Parties: Elva COLLINS, Appellant, v. Murray E. BAIR, Appellee.
• Court: Indiana Supreme Court

Page 95

268 N.E.2d 95

256 Ind. 230

Elva COLLINS, Appellant, v. Murray E. BAIR, Appellee.

Nos. 968A152, 371S77.

Supreme Court of Indiana.

March 30, 1971.

Arthur A. May, Crumpacker, May Levy & Searer, South Bend, for appellant.

David L. Matthews, South Bend, for appellee.

ON PETITION TO TRANSFER

HUNTER, Judge.

Petitioner is before this court on an application for transfer seeking review of the Appellate Court's opinion in Collins v. Bair (1970), Ind.App., 252 N.E.2d 448. It was there held that when a litigant 'by way of complaint, counterclaim or affirmative defense, places in issue his physical or mental condition, then he automatically waives the privilege granted by the Act (the physician-patient privilege granted by Ind.App.Stat. § 2--1714 (Fourth) (1968 Repl.) as to all matters causally or historically related to the physical or mental condition in issue.' Ind.App., 252 N.E.2d at 455. It is with this holding that we will concern ourselves.

This matter had its origin in a suit for damages arising out of personal injuries allegedly received in an automobile accident. At trial, plaintiff (appellee) introduced testimony by physicians treating him for injuries. Defendant (appellant) sought to introduce testimony by one Dr. George Holiday, a licensed chiropractor which, according to his offer to prove, would have established that Holiday had treated plaintiff prior to the time of the automobile accident for the medical condition sought to be charged to defendant as a result of defendant's alleged negligence. Plaintiff objected to the introduction of the evidence on the grounds that its admission would violate the physician-patient privilege; ¹ on the basis of the objection, it was excluded. We must therefore decide whether the act of placing one's mental or physical condition in issue by way of claim or defense is one from which a waiver of the statutory physician-patient privilege may be implied.

As noted, the physician-patient privilege has been statutorily recognized in this state:

'The following persons shall not be competent witnesses:

Fourth. Physicians, as to matter communicated to them, as such, by patients, in the course of their professional business, or advice given in such cases.' Ind.Ann.Stat. § 2--1714 (1968 Repl.)

At common law, no such privilege existed. Stayner v. Nye (1949), 227 Ind. 231, 85 N.E.2d 496; Myers v. State (1922), 192 Ind. 592, 137 N.E. 547. The grant of privilege being in derogation of the common law, we have felt constrained to give the statute a strict construction. Stayner v. Nye, supra; Hammell v. State (1926), 198 Ind. 45, 152 N.E. 161; Springfield Fire & Marine Insurance Co. v. Fields (1916), 185 Ind. 230, 113 N.E. 756; Thornburg v. American Strawboard Co. (1895), 141 Ind. 443, 40 N.E. 1062. With this in mind, our decisions, for example, have served to condition the applicability of the statutory privilege upon the existence of a formal physician-patient relationship. Myers v. State, supra; Laurie Co. v. McCullough (1910), 174 Ind. 477, 90 N.E. 1014; Seifert v. State (1903), 160 Ind. 464, 67 N.E. 100; Bower v. Bower (1895), 142 Ind. 194, 41 N.E. 523. Likewise it has been held that the privilege applies only to those communications necessary to treatment or diagnosis. Myers v. State, supra; Pennsylvania Co. v. Marion (1890), 123 Ind. 415, 23 N.E. 973. Further, and of great pertinence here, we have indicated that the privilege belongs to the patient and may effectively be waived. Stayner v. Nye, supra; Pence v. Myers (1913), 180 Ind. 282, 101 N.E. 716; Lane v. Boicourt (1891), 128 Ind. 420, 27 N.E. 1111.

In previous cases, we have had occasion to determine whether, under a specified set of circumstances, an implied waiver of the privilege could be inferred. Thus, we held that by admitting into evidence privileged communications respecting one physician did not waive the right as to others, Penn Mutual Life Insurance Co. v. Wiler (1885), 100 Ind. 92, except where the other physician or physicians were present or consulted on the matter, Schlarb v. Henderson (1936), 211 Ind. 1, 4 N.E.2d 205. Also, the act of submitting to a physical examination by a physician of one's choice for the purpose of using him as a witness at trial did not constitute a waiver, Acme-Evans Co. v. Schnepf (1938), 214 Ind. 394, 14 N.E.2d 561; furthermore, mere testimony by a patient that a given physician had rendered treatment did not waive the veil of privilege. Williams v. Johnson (1887), 112 Ind. 273, 13 N.E. 872.

Where, however, a party pursues a course of conduct of such a nature that a failure to find a waiver would be inimical to justice, this court has found such a waiver by implication. Such a situation has been recognized by this court to exist where a party institutes a mal-practice suit against his physician and testifies as to the nature of the treatment rendered. Lane v. Boicourt, supra.

As we noted in the Lane case:

'If a patient makes public, in a court of justice, the occurrences of the sick-room for the purpose of obtaining a judgment for damages against his physician, he cannot shut out the physician himself, nor any other who was present at the time covered by the testimony. When the patient voluntarily publishes the occurrence, he cannot be heard to assert that the confidence which the statute was intended to maintain inviolate continues to exist. By his voluntary act he breaks down the barriers, and the professional duty of secrecy ceases. It would be monstrous if the patient himself might detail all that occurred, and yet compel the physician to remain silent.' Lane v. Boicourt, supra, 128 Ind. at 423, 27 N.E. at 1113.

Although the mal-practice action is an extreme case in which it might be said that the equities of the situation demand a finding of waiver as to the matters placed in issue, the Lane case nevertheless demonstrates our concern that the privilege not be distorted by application in circumstances where the policy behind the rule is not served. That the Legislature was recognizing a strong public policy by its enactment of § 2--1714 may not be doubted. The character of the specific policy implemented, however, as it relates to the physician-patient privilege, should remain in sharp focus lest its observance became rote formality no longer prompted by considerations causing its initial advancement.

The privilege has been justified on the basis that its recognition encourages free communications and frank disclosure between patient and physician which, in turn, provide assistance in proper diagnosis and appropriate treatment. To deny the privilege, it was thought, would destroy the confidential nature of the physician-patient relationship and possibly cause one suffering from a particular ailment to withhold pertinent information of an embarrassing or otherwise confidential nature for fear of being publicly exposed.

Although necessarily resulting, the purpose of the privilege was not to suppress the truth:

'The purpose of the statute is not the suppression of truth needed for reaching correct results in litigation, though this may sometimes incidentally occur (as it may also in other instances of exclusion on the ground of wise policy), but the purpose is the promotion and protection of confidence of a certain kind, the inviolability of which is deemed of more importance than the results sought through compulsory disclosure in a court of justice.' The Penn Mutual Life Insurance Co. v. Wiler, supra, 100 Ind. at 100.

In the case where a privilege is acknowledged to exist, quite obviously two policies of the law are in direct conflict. On the one hand is a policy which dictates exclusion of material and relevant evidence for its effectuation; on the other is the policy which favors full disclosure of all relevant facts at trial in order to arrive at a just determination of the issues presented. While the latter must give sway to the former where applicable, it would seem unwise indeed to give unwarranted effect to the former so as to utterly and unreasonably frustrate the fact finding process. This is especially so where one seeking to invoke the privilege has engaged in conduct which undermines the legitimacy of extending it to cover his situation.

In our opinion, when a party-patient places his mental or physical condition in issue, he does an act which is totally incompatible with an invocation of the physician-patient privilege as to that condition,--given the legal basis upon which the privilege is premised. Dean Wigmore has most ably described the resulting inconsistency:

'* * * the bringing of an action in which an essential part of the issue is the existence of physical ailment should be a waiver of the privilege for all communications concerning that ailment. The whole reason for the privilege is the patient's supposed unwillingness that the ailment should be disclosed to the world at large; hence the bringing of a suit in which the very declaration, and much more the proof, discloses the ailment to the world at large, is of itself an indication that the supposed repugnancy to disclosure does not exist. By any other conclusion the law practically permits the plaintiff to make a claim somewhat as follows: 'I tender witnesses A, B and C, who will openly prove the severe nature of my injury. But I object to the testimony of witness D, a physician called by the opponent to prove that my injury is not so severe as I claim, because it is extremely repugnant to me that my neighbors should learn the nature of my injury!' The position is especially absurd when (as is often the case) the dreaded disclosure, which the privilege prevents, is the fact that the plaintiff has suffered no injury at all.' 8 Wigmore on Evidence, § 2389 (McNaughton Ed., 1961)

It is doubtful that the point can be made more persuasively. Where a party-patient, of his own, does an act which will require disclosure of a condition otherwise protected from disclosure, there would...