Collins v. Bair, 968
Citation | 252 N.E.2d 448 |
Decision Date | 20 November 1969 |
Docket Number | No. 2,No. 968,968,2 |
Parties | Elva COLLINS, Appellant, v. Murray E. BAIR, Appellee. A 152 |
Court | Court of Appeals of Indiana |
Arthur A. May, Crumpacker, May, Levy, & Searer, South Bend, for appellant.
David L. Matthews, South Bend, for appellee.
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?
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:
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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...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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