Mississippi Power & Light Co. v. Jordan

• Decision Date: 10 October 1932
• Docket Number: 30094
• Parties: MISSISSIPPI POWER & LIGHT CO. v. JORDAN
• Court: Mississippi Supreme Court

143 So. 483

164 Miss. 174

MISSISSIPPI POWER & LIGHT CO. v. JORDAN

No. 30094

Supreme Court of Mississippi

October 10, 1932

Division B

1. WITNESSES. In personal injury action, physician who was partner of physician who treated plaintiff held incompetent to testify concerning plaintiff's condition (Code 1930 section 1536).

Defendant offered testimony of physician who was a partner of the physician who treated plaintiff, as a witness to testify concerning the condition of plaintiff's leg from observation, and as to the nature and character of the injury. The offered testimony was incompetent because, where two physicians are partners, the patients of one are the patients of the firm and are entitled to advice and attention and to the privilege accorded to them by Code 1930, section 1536, rendering the communications between a patient and his physician incompetent as evidence.

2 WITNESSES. Physician who treated plaintiff for former injury to leg held incompetent as witness, where such physician could not segregate knowledge acquired as physician from that learned from contact and association (Code 1930, section 1536).

Physician who had treated plaintiff for a former injury to the same leg was offered as a witness. It appeared that plaintiff was employed a number of years on the physician's plantation after the first injury, but subsequently left such employment and secured employment from the defendant. The physician was incompetent because he could not segregate his knowledge as a physician from that which he acquired by coming in contact and association with plaintiff while working on the plantation.

3. APPEAL AND ERROR.

Where defendant in personal injury action introduced testimony of competent expert, exclusion of testimony of other physicians could not be prejudicial.

4. EVIDENCE. In personal injury action, trained nurses who attended plaintiff held not qualified to testify as experts regarding nature of plaintiff's injury.

Trained nurses who attended plaintiff and took care of his injuries could not qualify as expert witnesses from mere training given to nurses, since, in order to qualify as experts, there must have been not only training in different diseases and symptoms, but there must have been sufficient practical experience to enable them to discriminate between symptoms and conditions of different diseases.

5 WITNESSES. Nurse who was employee of physician who treated plaintiff for injury to leg held incompetent as witness (Code 1930, section 1536).

Trained nurse employed by physician who treated plaintiff for injury to leg was incompetent as a witness, because her information and knowledge was gained by being present and assisting the physician in the treatment of the injury and hearing the communications from the plaintiff to the physician, and because her knowledge was a part of the knowledge of the physician himself.

6 WITNESSES.

Nurse employed by physician who treated plaintiff for injury would be competent as witness as to all matters learned when not assisting physician (Code 1930, section 1536).

Suggestion Of Error Overruled November 3, 1932.

APPEAL from circuit court of Warren county.

HON. E. L. BRIEN, Judge.

Action by Monk Jordan against the Mississippi Power & Light Company. Judgment for the plaintiff, and the defendant appeals. Affirmed.

Affirmed.

Green, Green & Jackson, of Jackson, and Hirsh, Dent & Sanders, of Vicksburg, for appellant.

A physician is competent to testify as to information acquired from his business relations with a patient, provided such information was not obtained as a physician in charge of a patient.

Dabbs v. Richardson, 137 Miss. 789, 102 So. 769.

It was, likewise, competent to show by Dr. Parsons that the relationship of physician and patient did not exist between him and appellee merely because he was a patient in the Vicksburg Hospital in which he, Dr. Parsons, had an interest and received a portion of the income therefrom. Dr. Parsons was not even permitted to testify as an expert solely and alone on the ground that he was connected with the Vicksburg Hospital and a partner of Dr. Knox, the physician who attended appellee in the hospital. He obtained none of his information from Dr. Knox, but solely from his observations while one of the physicians.

Nurses do not come within the provisions of section 7455, Hemingway's 1927 Code, section 3695, Code of 1906, making all communications made to a physician or surgeon by a patient under his charge or one seeking professional advice privileged. The statute does not extend to nurses. The statute is in derogation of the common law and must be strictly construed, that is, it must be construed so as to limit the privilege to the parties named therein.

Goodman v. Lang, 158 Miss. 209, 130 So. 50.

Under Hemingway's Code 1927, sec. 7452, chiropractors are not physicians, and they are therefore not within privilege of physicians under section 7455, relating to privileged communications.

Kress & Company v. Sharp, 156 Miss. 693, 126 So. 650.

The examination which a trained nurse is required to take covers theoretical and practical nursing, anatomy, physiology, bacteriology, materia medica, dietics and hygiene.

Sec. 5638, Code of 1930.

When a nurse has passed successfully an examination dealing with anatomy and bacteriology, of necessity she was cognizant as an expert of those things which would enable her to have testified as to this condition and also to have named it. Her training was such as that she knew what caused the ailment. She was theoretically as competent in her sphere as a physician but would not receive the same confidential communications as would a physician.

A trained nurse in general practice is really just as competent as a physician to say what the real trouble was and we think it was a fundamental and reversible error not to admit their evidence and thereby circumscribe and embarrass the nurses offered so as to prejudice appellant's case before the jury.

Wodkins v. Wodkins, 106 So. 753; Dabbs v. Richardson, 102 So. 769.

Of course there is much that can be observed in business and social intercourse bearing on a person's sanity and the fact that such observations are made by a physician does not disqualify him, provided that his knowledge is not obtained during professional employment.

Dabbs v. Richardson, 137 Miss. 789, 102 So. 769.

Brunini & Hirsch, Thames & Thames, and W. W. Ramsey, all of Vicksburg, for appellee.

Whatever may have been the reason for the enactment of the statute, the statute expressly prohibits a physician from testifying without the consent of the patient. The evidence of a physician ought not to be received before the court, and it is error for the court to proceed upon the idea that the judge and the public may hear the statement of the physician in such case though it be excluded from the jury. In such case the question ought to be directed to ascertaining whether the physician has knowledge by reason of the relation of physician and patient, and if it were so acquired it ought to be excluded.

U. S. F. & G. Co. v. Hood, 124 Miss. 548.

If the facts and information were in nowise formed or based upon any information received or obtained while the relation of physician and patient existed the witness can testify, but otherwise he cannot.

Estes v. McGee, 133 Miss. 174.

The facts showed that necessarily a part of his knowledge was obtained by his visits to and treatment of the deceased during the days of last illness, and it was, therefore, within the discretion of the trial judge who has the opportunity to judge of the witness and observe him while he is testifying and during the course of examination to say whether a witness can in fact separate his knowledge acquired in business and in a social way from his knowledge acquired professionally, and that furthermore the witness was not the final and conclusive judge as to whether he could and does separate knowledge acquired professionally from that acquired in a business or social way.

Dabbs v. Richardson. 137 Miss. 789.

A physician who was merely a guest of the attending physician, accompanied the latter while he attended a patient was held within the privilege.

Mutual Life Ins. Co. v. Owen, 111 Ark. 554, 164 S.W. 720.

Information secured by a consulting physician called in by the attending physician is within the privilege.

Rennihan v. Dennin, 103 N.Y. 573, 9 N.E. 320; Prader v. National Masonic Acc. Asso., 95 Iowa 156, 63 N.W. 601.

The privilege was held to extend to the partner of the attending physician although he did not treat the patient and the relation of physician and patient did not as a fact exist.

Raymond v. R. R. Company, 65 Iowa 152, 21 N.W. 495; Aetna, Ins. Co. v. Dennin, 24 N.E. 86.

The relation of physician and patient exists between the patient and the physician who has cause to make an examination and diagnosis of him in a hospital, as well as outside of a hospital, or whether a pay patient or charity patient and such physician may not deliver his testimony so acquired in open court, or have it written down in so-called reports for consideration as evidence in contravention of our privilege communication statute.

Metropolitan Life Ins. Co. v. McSwain, 149 Miss. 455.

The nurse would not be permitted to testify as to what she heard the physician say as that would not only be hearsay, but would be statements of the physician who treated the patient in the hospital, and while this information which the nurse received from the physician may not have been made a record in the hospital records, still the nurse could assist in the evasion of the statute by making notes immediately afterwards of what she learned from the physician.

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