Collins v. Bair, 968

Citation252 N.E.2d 448
Decision Date20 November 1969
Docket NumberNo. 2,No. 968,968,2
PartiesElva COLLINS, Appellant, v. Murray E. BAIR, Appellee. A 152
CourtCourt of Appeals of Indiana

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

David L. Matthews, South Bend, for appellee.

HOFFMAN, Judge.

This appeal from a judgment for plaintiff-appellee on his complaint against defendant-appellant granting him damages for injuries suffered by reason of the negligent operation by appellant of her automobile.

The record discloses the following facts:

On July 2, 1965, appellee suffered severe injuries as a result of an automobile accident precipitated by the alleged negligence of appellant. Appellee specifically suffered a traumatic injury to the cervical, dorsal and lumbar areas. As a result of these injuries, an operation was performed to remove a herniated disc from appellee's back.

At the trial of the cause, plaintiff-appellee introduced a number of expert witnesses whose testimony was substantially to the effect that appellee's injuries and damages were a result of the automobile accident.

At the close of plaintiff-appellee's evidence, the appellant called one Dr. George Holiday to the stand. Dr. Holiday is a licensed chiropractor in the State of Indiana and, at some prior time, had treated appellee.

The following testimony and commentary was elicited:

'Q. When did you first treat Murray Bair?

'A. April 25, 1961.

'Q. And what area did you treat?

'MR. MATTHEWS: To which we will object, Your Honor, on the grounds that this violates the confidential communication of physician and patient and that there has been no foundation laid showing any waiver of it.

'THE COURT: The Court had admitted such testimony conditionally on the case of the prior Chiropractor. I noted you down in the law library yourself. Do you have any law to cite to the Court?

'MR. MAY: Yes, yes. (Northern Ind. Public Service Co. v. McClure,) 108 Indiana Appellate 253, (24 N.E.2d 788 (1940), (Transfer denied),) and I have the case out of the Supreme Court (Schlarb v. Henderson,) 211 Indiana 1, (4 N.E.2d 205, (1937)). And I would like to point out to the Court that the testimony in this case, one of the crucial issues in this case is that the evidence of the plaintiff himself that the histories that were given by the plaintiff to all of the doctors in this case testified he had no prior condition or complaint to his low back prior to 1965 and this is very much of an issue in this case and I believe we have the right to inquire of this doctor as to the nature of the treatments, the part of the area he treated and the complaints, if nothing more than to test the credibility of Murray Bair.

'THE COURT: May I see that Northern Indiana case. Do you have that with you?

'MR. MAY: Yes. This one had to do with carbon monoxide poisoning and blood tests. Your Honor, I think in this case here where we have all kinds of testimony about no prior low back treatments, if I have ever seen no waiver of any privilege, otherwise we have the situation where this man says 'I have never had any low back treatments', then we are precluded and we could not ever bring any evidence in.

'THE COURT: Well the Court has the duty of following the law of the Supreme Court and it also has a duty to reconcile; all of the decision in the Northern Indiana case are similar in one respect in that they require multiple doctors but this treatment was interrelated. In the Slayer case it had to do with several surgeons and then the question of waiver was raised. I guess the testimony of the pathologist was raised and the Court says by virtue of the three doctors working together you waive the privilege of the third doctor. One actually put this man in the hospital and after the other doctors treated him they reexamined him and gave some prescriptions. Treatment was interrelated with the other doctors. The Acme Evans Company versus Sneve (Acme-Evans Co. v. Schnepf, 214 Ind. 394, 14 N.E.2d 561 (1938)) is the one in point here where you had one doctor called immediately after the accident, the father discharged him and he thereafter hired two other doctors to examine this boy and to treat him. The two subsequent doctors testified and the defendant tried to put on this first doctor and in this case the Court would not permit it. I Shephardized (shepardized) that case and the law would not permit it. In the Acme Evans Company case they distinguish this type of testimony by doctors whose type of services are interrlated (interrelated) and in talking about the Slayer case the Court says the two physicians who did the examination base their testimony in part on information from the third physician and microscopic report and by virtue of their services being interrelated. But in this case, the Acme Evans case, where they were not interrelated whatsoever other than they treated the same patient the same factor would be present here in the case for personal injury, that doctor's testimony would be as relevant as any other, but there the Supreme Court said that this first doctor may not testify over objection of the plaintiff. And I also looked in the Indiana Bar Handbook on evidence and they said a waiver may arise, they quote the California statute which states: 'waiver arises by virtue of filing a case.' But there is no Indiana case; by virtue of this Acme Evans case I will have to rule.

'MR. MAY: In this McClure case they said death was caused by barbon monoxide or syphilis and they--

'THE COURT: The real distinction is when the doctor's treatment is interrelated. On that basis the Court will have to rule, unless you can show that the particular medical practitioner's treatment was interrelated with those of the doctors who have testified; that there is a privilege which is not waived, which renders this witness incompetent. So if you want to attempt to show by some preliminary testimony that this witness' treatment was somehow interrelated or he proceeded by some information gained by Dr. Turfler or the converse of that, that Dr. Turfler proceeded by information received by this man, I would have to render his testimony incompetent.

'MR. MAY: May I make my offer to prove? The defendant offers to prove by this witness this question which was, 'what part of the body did you treat?' This witness, defendant's knowledge or information would lead him to believe, the witness would testify that he had treated Mr. Murray Bair, the plaintiff in this cause of action for low back problems and complaints in the area of the fifth lumbar segments of the spine.

'THE COURT: Court's ruling stands.'

Appellant assigns as error the overruling of his motion for new trial and argues the following specifications of error:

1. That the damages assessed are excessive;

2. That the decision is not sustained by sufficient evidence;

3. That the decision of the trial court is contrary to law.

Appellant details the following specific errors of law:

(a) That by testifying in his own behalf as to his back condition prior to the incident complained of, the appellee voluntarily waived whatever privilege might exist pursuant to Acts 1881 (Spec. Sess.), ch. 38, § 275, p. 240, Burns' Ind.Stat., Anno., § 2--1714; and

(b) That the facts sought to be elicited were not the types or kinds of facts intended to be protected by the statute; and

(c) That chiropractors are not physicians within the meaning of the statute; and

(d) That exclusion of the offered testimony of Dr. Holiday based on the privilege was prejudicial and reversible error.

The Act in question (§ 2--1714, supra), reads as follows:

'The following persons shall not be competent witnesses:

'First. Persons insane at the time they are offered as witnesses, whether they have been so adjudged or not.

'Second. Children under ten (10) years of age, unless it appears that they understand the nature and obligation of an oath.

'Third. Attorneys, as to confidential communications made to them in the course of their professional business, and as to advice given in such cases.

'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.

'Fifth. Clergymen, as to confessions or admissions made to them in course of discipline enjoined by their respective churches.

'Sixth. Husband and wife, as to communications made to each other.'

Chiropractors are involved in the practice of medicine, and it has been so held by our Supreme Court.

See:

Dean v. State ex rel. Board of Medical Registration, etc., 233 Ind. 25, 116 N.E.2d 503 (1954);

Lucas v. State ex rel. Board, etc., 229 Ind. 633, 99 N.E.2d 419 (1951).

The underlying policy on which the Act (§ 2--1714, supra) is based, is broad enough to include chiropractors. The purpose of the Act is to encourage confidence and trust between an individual and his 'physician.' The practice of chiropractory is a legitimate medical art, and without indulging in semantical guessing games, we hold that the word 'physician' as used in the Act encompasses a doctor of chiropractic.

This brings us to the central issue presented by this appeal: Can an individual waive the physician-patient privilege by voluntarily placing at issue his physical condition at the time of, and prior to, the incident complained of?

For the reasons hereinafter set forth we believe that waiver does occur and the testimony of the 'physician' should have been permitted in the instant case.

In Stayner v. Nye, 227 Ind. 231, at page 237, 85 N.E.2d 496, at page 499 (1949), our Supreme Court, in reference to the privilege, said:

'It has been consistently construed not to create an absolute incompetency, but a privilege for the benefit of the patient, which he may waive.' (Citing authorities.) (Emphasis supplied.)

Keeping in mind this rather singular focus on the patient, a preliminary question must be answered: What is the physician-patient privilege supposed to protect?

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    ...Trans-World Investments v. Drobney, 554 P.2d 1148 (Alaska 1976); Mathis v. Hildebrand, 416 P.2d 8 (Alaska 1966); Collins v. Bair, 252 N.E.2d 448 (Ind.App.1969); State ex rel. McNutt v. Keet, 432 S.W.2d 597 (Mo.1968); DeCastro v. New York, 54 Misc.2d 1007, 284 N.Y.S.2d 281 (1967); Sagmiller ......
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    ...279 N.E.2d 794 (1972); Indiana State Personnel Bd. v. Wilson, 256 Ind. 674, 271 N.E.2d 448 (1971); Collins v. Bair, 252 N.E.2d 448, 456-57 & n. 3 (Ind.Ct.App.1969) (White, J., dissenting), vacated on trans., 256 Ind. 230, 268 N.E.2d 95 (1971).11 See also IND.CODE ANN. § 34-8-2-1 (West Supp.......
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    ...historically related to the patient-plaintiff's health put in issue by the injuries and damages claimed in the action. Collins v. Bair, 252 N.E.2d 448, 455 (Ind.App.1969); see State ex rel. McNutt v. Keet, 432 S.W.2d 597 (Mo.1968). Certainly in the interest of justice the defendant in an ac......
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