Quarles v. Sutherland

• Decision Date: 07 April 1965
• Citation: 389 S.W.2d 249,19 McCanless 651,20 A.L.R.3d 1103,215 Tenn. 651
• Parties: Ella QUARLES, Plaintiff in Error, v. Arthur SUTHERLAND, Jr., M.D., Defendant in Error. 19 McCanless 651, 215 Tenn. 651, 389 S.W.2d 249, 20 A.L.R.3d 1103
• Court: Tennessee Supreme Court

Page 249

389 S.W.2d 249

Ella QUARLES, Plaintiff in Error, v. Arthur SUTHERLAND, Jr., M.D., Defendant in Error.

19 McCanless 651, 215 Tenn. 651, 389 S.W.2d 249, 20 A.L.R.3d 1103

Supreme Court of Tennessee.

April 7, 1965.

Stanley H. Sidicane, Nashville, for plaintiff in error.

Dan E. McGugin, Watkins, McGugin & Stewart, Nashville, for defendant in error.

WHITE, Justice.

This action was brought in Circuit Court against a practicing physician, defendant in error, for the alleged wrongful disclosing of professional secrets or information to an attorney representing a store in which the plaintiff suffered an accident. A demurrer to the declaration was filed. It was sustained by the trial judge, and the plaintiff in error has perfected her appeal to this Court.

The plaintiff's declaration averred, in substance, that on October 14, 1963, she sustained an injury by reason of an accident at the Top Value Stamp Store in Nashville. She was taken to the defendant's office where she was treated for such injuries. She alleges that it was unknown to her that the doctor was the regular physician of the Top Value Stamp Store, although she had been sent to the doctor by the store.

On November 6, 1963, the plaintiff's attorney advised the defendant that she was represented by counsel and requested that no medical reports be given to anyone without first notifying his office. Thereupon, the defendant wrote a letter to him, dated November 8, 1963, advising said attorney of his medical findings and forwarded a copy of the letter to the attorney for the Top Value Stamp Store.

The plaintiff alleged that the defendant violated the ethics of the medical profession in disclosing information and by doing so greatly prejudiced her case against the Top Value Stamp Store. She charged that the defendant had a duty to keep private and privileged all information he obtained by virtue of the contract of employment, and that the defendant doctor breached his duty by forwarding a copy of the report as alleged.

Further, the plaintiff alleged that under T.C.A. Sec. 63-318 and Sec. 63-319, a doctor's license may be revoked when the licensee has been guilty of unprofessional conduct, and such conduct is defined as 'the willful betraying of a professional secret.' It is claimed that this licensing statute imposes a positive duty upon the physician to keep secret his findings.

The basic issue which we must decide in this case is whether communications between physician and patient are by law privileged communications, and whether a disclosure of such information to a third party gives rise to a cause of action under the law.

Of significance in a discussion of this issue is that the common law of England, as it stood at and before the separation of the colonies, has been adopted by the State of Tennessee, being derived from North Carolina, out of which state the State of Tennessee was carved. The Acts of North Carolina, 1715, c. 31, and Acts of North Carolina, 1778, c. 5, preserved the common law, while Session Act 1789, c. 3, provided for its continuance in the State of Tennessee. Polk v. Faris, 17 Tenn. 209, 30 Am.Dec. 400 (1836); McCorry v. King's Heirs, 22 Tenn. 267, 39 Am.Dec. 165 (1842); Smith v. State, 214 Tenn. ----, 385 S.W.2d 748 (1965).

It is axiomatic that at common law neither the patient nor the physician had a privilege to refuse to disclose in court a communication of one to the other, nor does either have a privilege that the communication not be disclosed to a third person. 1 Morgan, Basic Problems of Evidence, ch. 5 (1954); 8 Wigmore, Evidence Sec. 2380 (3rd ed.1961).

This rule was set forth in the English case of Duchess of Kingston's Trial, 20 How.St.Tr. 355, 573 (1776), reprinted in Notable British Trials Series (Melville ed.1927), as follows:

'Mr. Hawkins, a physician, who had attended the accused and her alleged husband, when asked whether he knew from the parties of any marriage between them, answered, 'I do not know how far anything that has come before me in a confidential trust in my profession should be disclosed, consistent with my professional honor.'

'If all your lordships will acquiesce, Mr. Hawkins will understand that it is your judgment and opinion that a surgeon has no privilege, where it is a material question in a civil or criminal cause to know whether parties were married or whether a child was born, to say that this introduction to the parties was in the course of his profession and in that way he came to the knowledge of it. * * * If a surgeon was voluntarily to reveal these secrets, to be sure, he would be guilty of a breach of honor and of great indiscretion; but to give that information in a court of justice, which by the law of the land he is bound to do, will never be imputed to him as any indiscretion whatever.'

We have made a thorough search of the statute of this State, and have found no statute which would alter the common law rule in this regard. While the arguments for and against making...