Massachusetts Mutual Life Insurance Co. v. Brei

• Citation: 311 F.2d 463
• Decision Date: 20 November 1962
• Docket Number: No. 54,Docket 27461.,54
• Parties: MASSACHUSETTS MUTUAL LIFE INSURANCE COMPANY, Plaintiff-Appellant, v. Thomas E. BREI, Mary C. Brei, Arthur F. Brei and Leanne F. Brei, Infants, and Nancy H. Brei, individually and as General Guardian of said infants, Defendants-Appellees.
• Court: U.S. Court of Appeals — Second Circuit

311 F.2d 463 (1962)

MASSACHUSETTS MUTUAL LIFE INSURANCE COMPANY, Plaintiff-Appellant, v. Thomas E. BREI, Mary C. Brei, Arthur F. Brei and Leanne F. Brei, Infants, and Nancy H. Brei, individually and as General Guardian of said infants, Defendants-Appellees.

No. 54, Docket 27461.

United States Court of Appeals Second Circuit.

Argued October 19, 1962.

Decided November 20, 1962.

Harris, Beach, Keating, Wilcox, Dale & Linowitz, Rochester, N. Y., Rowland H. Long, Springfield, Mass., for plaintiff-appellant.

William J. Flynn, Buffalo, N. Y., and Chauncey S. Kibbe, Attica, N. Y., for defendants-appellees.

Before WATERMAN, HAYS and MARSHALL, Circuit Judges.

WATERMAN, Circuit Judge.

This is an action brought by the Massachusetts Mutual Life Insurance Company for a declaratory judgment determining the rights of the parties under the provisions of two life insurance policies. The insurer disclaims liability on the ground that the decedent-insured committed suicide. The beneficiaries under the policies, defendants below, contend that the insured's death resulted from injuries accidentally sustained as a result of a gunshot wound. The jurisdiction of the court below was founded upon a diversity of citizenship, and is not here contested.

From a judgment for the beneficiaries, the insurance company brings this appeal alleging, as grounds for reversal, two errors in the conduct of the trial below. As will appear more fully hereafter, we find no error in the admission or exclusion of evidence that would support a reversal of the judgment below and require us to order a new trial. The judgment, accordingly, is affirmed.

Appellant maintains, first, that the district court erred in excluding from evidence certain testimony of decedent's physician concerning statements allegedly made by decedent to him sometime prior to death. Without objection, the physician, Dr. Frederick T. Volk, testified that for some twelve or thirteen years before the decedent, Elmer T. Brei, died, he had treated Brei for varicose veins of the legs. Two years before his death Brei broke his right ankle and Dr. Volk treated him for this. About eight months after the fracture the tissue around the region of the ankle broke down and developed a large varicose ulcer or open sore. This substantially disabled Mr. Brei, required him to use crutches or a cane to move about, and prevented him from attending to his business, as a result of which, the evidence indicated, he encountered serious financial difficulties.

Dr. Volk further testified that a month before his death, Brei came to Dr. Volk's office several times for further treatment of his legs. Counsel for the insurance company asked whether at any of these visits Brei discussed his finances or financial condition, and whether any of these statements "were not directly connected with the treatment." Over objection from the defense, Dr. Volk responded affirmatively to both questions: "He made a statement to me about two weeks — in fact, the last time he was in my office he made a statement to me that he would — if he didn't get a break, if things didn't come better for him he would find a way —." The court thereupon sustained the objection of defense counsel that the statements were a "privileged communication between patient and physician."¹ We are faced, at the outset, with the question of what law governs the issue of privilege in diversity cases. The parties have assumed that the availability of the patient-physician privilege turns on the law of New York. There is considerable confusion in the decisions as to application of the Erie case² and the Federal Rules of Civil Procedure to state evidentiary privileges.³ However, the weight of authority appears to favor the view that the state rule is to govern⁴ and this view has been consistently adopted in this circuit with respect to the patient-physician privilege provided by the New York statute, though without discussion of the issue and largely on the basis of precedents that antedate the Rules Enabling Act and Erie. Engl v. Aetna Life Ins. Co., 139 F.2d 469 (2 Cir. 1943); Stiles v. Clifton Springs Sanitarium Co., 74 F.Supp. 907 (W.D.N.Y. 1947); Munzer v. Swedish American Line, 35 F.Supp. 493 (S.D.N.Y.1940).

We find that reason, as well as authority, supports the view that the state rule as to the patient-physician privilege should govern.⁵ The privilege reflects a legislatively determined state policy. It is designed to encourage confidential communications between persons in the relationship of patient and physician by protecting these communications from compulsion to reveal them.⁶ The rule of privilege is unlike the ordinary rules of practice which refer to the processes of litigation, in that it affects private conduct before litigation arises. The usual rules of evidence are concerned with the procedure adducing facts at a trial. Subject to the limitations of the "outcome" test announced in Guaranty Trust Company v. York, 326 U.S. 99, 65 S.Ct. 1464, 89 L.Ed. 2079 (1945) and Ragan v. Merchants Transfer & Warehouse Co., 337 U.S. 530, 69 S.Ct. 1233, 93 L.Ed. 1520 (1949), they are "procedural" and look for their authority to the Federal Rules of Civil Procedure. The patient-physician privilege is more than a rule of procedure since it goes to relationships established and maintained outside the area of litigation, and "affects people's conduct at the stage of primary private activity and should therefore be classified as substantive or quasi-substantive."⁷

Whether the court below erred in its ruling that the statements made to Dr. Volk were a "privileged communication between patient and physician" therefore turns upon the proper construction of § 352 of the New York Civil Practice Act, to which we now turn:

The Act provides:

"§ 352. Physicians, dentists and nurses not to disclose professional information.

"A person duly authorized, to practice physic and surgery, or dentistry, or a registered professional or licensed practical nurse, shall not be allowed to disclose any information which he acquired in attending a patient in a professional capacity, and which was necessary to enable him to act in that capacity, * * *."⁸

The purpose of the provision, and of its predecessor statute, 2 R.S. Ch. 7, pt. 3, p. 406, § 73,⁹ has been stated by the New York court to be

"to protect those who are required to consult physicians from the disclosure of secrets imparted to them, to protect the relationship of patient and physician, and to prevent physicians from disclosing information which might result in humiliation, embarrassment, or disgrace to patients. When the original statute was enacted, it was believed that the benefits which would accrue from its enactment by preventing disclosure by physicians of information gained in consultation and by inspiring confidence between patients and their physicians would outweigh any injustice which might result in particular cases caused by the exclusion of testimony by physicians at trials."

Steinberg v. New York Life Ins. Co., 263 N.Y. 45, 48-49, 188 N.E. 152, 153, 90 A.L.R. 642 (1933).

In an early construction of the predecessor of present § 352,¹⁰ the New York Court of Appeals stated that two conditions must be met before the privilege applies:

"Before information can be excluded under this statute, it must appear that it was such as the physician acquired in some way while professionally attending the patient; and it must also be such as was necessary to enable him to prescribe as a physician, or to do some act as a surgeon. It is not sufficient to authorize the exclusion that the physician acquired the information while attending his patient; but it must be the necessary information mentioned."

Edington v. Aetna Life Ins. Co., 77 N.Y. 564, 569-570 (1879).

Although appellant concedes that the information here sought to be introduced into evidence was acquired by Dr. Volk "in attending a patient in a professional capacity," appellant argues that the information fails to meet the second statutory requirement of being "necessary to enable the doctor to act in that capacity." Dr. Volk, appellant points out, was treating the decedent for varicose veins and for complications related to that condition. The statement of Brei, by contrast, is interpreted by the insurer to indicate a suicidal intent.

As we read the New York authorities, the courts of that state, since the time of Edington v. Aetna Life Insurance Co., supra, have interpreted this second or "necessary information" requirement of the statute with substantial liberality. In Feeney v. Long Island Ry. Co., 116 N.Y. 375, 22 N.E. 402, 5 L.R.A. 544 (1889), a physician who had treated the plaintiff shortly after an accident was asked at trial whether he had conversed with the plaintiff about her injuries, and if he made an examination of her. The trial court sustained an objection made in behalf of the plaintiff that these questions called for a privileged communication. On appeal, the court, in affirming the action below, quoting from Edington v. Mutual Ins. Co., 67 N.Y. 185, 194 (1876), stated:

"The point made that there was no evidence that the information asked for was essential to enable the physician to prescribe is not well taken, as it must be assumed from the relationship existing that the information would not have been imparted except for the purpose of aiding the physician in prescribing for the patient. Aside, however, from this, the statute in question being remedial, should receive a liberal interpretation, and not be restricted by any technical rule." 116 N.Y. at 380-381, 22 N.E. at 403.

In Nelson v. Village of Oneida, 156 N.Y. 219, 50 N.E. 802 (1898), the court went a step beyond the presumption created in Feeney. Here, counsel for the defense in a personal injury case sought to prove that the plaintiff had suffered from an umbilical hernia prior to the accident in question. In his offer of proof, counsel stated that a physician who...