Simonsen v. Swenson

• Decision Date: 14 February 1920
• Docket Number: No. 20777.,20777.
• Citation: 104 Neb. 224,177 N.W. 831
• Parties: SIMONSEN v. SWENSON.
• Court: Nebraska Supreme Court

104 Neb. 224

177 N.W. 831

SIMONSEN

v.SWENSON.

No. 20777.

Supreme Court of Nebraska.

Feb. 14, 1920.

Syllabus by the Court.

The information given to a physician by his patient, though confidential, is given subject to the understanding, conclusively presumed in law, that, if the patient's disease is found to be of a dangerous and so highly contagious or infectious a nature that it may be transmitted to others unless the danger of transmission is disclosed to them, the physician is then privileged to make so much of a disclosure to such persons as is reasonable and necessary to prevent the spread of the disease.

Where a physician makes such a disclosure, believing that a disclosure was necessary to prevent the spread of the disease, and when the disclosure is made to one who, it is reasonable to believe, might otherwise be exposed, and when the physician acts in entire good faith, with reasonable grounds for his diagnosis and without malice, he cannot be held liable in damages by his patient, even though he is mistaken in his diagnosis and has reported that his patient was afflicted with a disease which in fact he did not have.

Additional Syllabus by Editorial Staff.

The word “betrayal” as used in Rev. St. 1913, § 2721, making the betrayal of a professional secret on the part of a physician “unprofessional or dishonorable conduct,” for which his license may be revoked, is used to signify a wrongful disclosure of a professional secret in violation of the trust imposed by the patient.

Appeal from District Court, Burt County; Troup, Judge.

Action by Christian Simonsen against Samuel A. Swenson. Judgment for defendant, and plaintiff appeals. Affirmed.Frank V. Lawson and Gray & Brumbaugh, all of Omaha, for appellant.

Alvin F. Johnson, of Omaha, for appellee.

FLANSBURG, C.

Action for damages for alleged breach of duty arising from confidential relationship between defendant, who is a physician, and plaintiff, who was his patient. At the close of the testimony the court directed a verdict in favor of the defendant, and plaintiff appeals.

Plaintiff, with other employés of a telephone company, was working at Oakland, Neb. He was a stranger at the place, and was stopping with these men at a small hotel operated by a Mrs. Bristol. He became afflicted with sores on his body, and went to the defendant, a practicing physician at that place, who took the history of plaintiff's trouble, gave him a physical examination, and informed him that he believed his disease to be syphilis. He further stated, however, that it was impossible to be positive without making certain Wasserman tests, for which he had no equipment.

Defendant was the physician of the Bristol family, and acted as their hotel doctor when one was needed. He told plaintiff that there would be much danger of his communicating the disease to others in the hotel if he remained there, and requested that he leave the next day, which plaintiff promised to do.

On the following day the defendant, while making a professional call upon Mr. Bristol, who was ill, learned that plaintiff had not moved from the hotel. He therefore warned Mrs. Bristol that he thought plaintiff was afflicted with a “contagious disease,” and for her to be careful, to disinfect his bedclothing, and to wash her hands in alcohol afterwards. Mrs. Bristol, acting upon this warning, placed all of plaintiff's belongings in the hallway, and fumigated his room. Plaintiff was forced to leave.

The testimony of the physicians disclosed that this particular disease is very readily transmitted in its early stages, and could be carried through drinking cups, eating utensils, and other articles handled or used by the diseased person.

After leaving Oakland, plaintiff consulted another physician. He gave to this physician a history, showing that he might have been exposed a few weeks before to such a disease, and was given a physical examination by this doctor. One Wasserman test was made, which proved negative. That test alone, however, this physician testified, proved nothing, since the presence or absence of such disease could not be positively known without extended tests. These had not been made, and this doctor said that it was impossible for him to say whether the plaintiff had or had not the disease when he examined him. He went on further to say that the symptoms and information upon which the defendant acted were, however, reasonably sufficient to cause the defendant to believe as he did.

The testimony is practically without conflict; plaintiff having called the defendant to testify as his own witness.

The plaintiff contends that, having shown the relationship of physician and patient, the law prohibits absolutely a disclosure of any confidential communication, at any time or under any circumstances, and that a breach of this duty of secrecy, on the part of the physician, gives rise to a cause of action in damages in favor of the patient.

At common law there was no privilege as to communications between physician and patient, and this rule still prevails when not changed by statute. Thrasher v. State, 92 Neb. 110, 138 N. W. 120, Ann. Cas. 1913E, 882; 40 Cyc. 2381.

Section 7898, Rev. St. 1913, provides that a physician shall not be allowed to disclose, on the witness stand, any confidential communication intrusted to him in his professional capacity. The disclosure of confidences in this case was not by the defendant as a sworn witness, and this statute, therefore, obviously does not apply and has no bearing upon this case.

[1] There is a further provision of our statute, however (section 2721, Rev. St. 1913), providing that no physician shall practice medicine without a license from the board of health, and that such a license may be revoked when a physician is found guilty of ...